Commissioner for Human Rights

In response to the CHR’s request dated 26 January 2021, ODIHR provided Urgent Opinion on the Draft Act Amending the Code of Procedure in Petty Offence Cases of Poland.

According to ODIHR the Draft Act proposes significant changes to the Code of Procedure in Petty Offence Cases of Poland. First, it would introduce the possibility for rulings in petty offence cases subject to a fine or a reprimand to be issued by court clerks in the form of “orders for punishment”. Second, when a fine is imposed by the police or other authorized officers, the Draft Act would remove the possibility to refuse the penalty notice [mandat karny], the fine becomes enforceable within seven days and can be appealed before a district court. Read together with the new role of the court clerk, such appeal could be heard by a court clerk.

Overall, the Draft Act presents a number of shortcomings, which substantially impact the right to a fair trial before an independent and impartial tribunal, as guaranteed by Article 6 of the ECHR and Article 14 of the ICCPR.

First, it is doubtful whether court clerks could be considered as a court or tribunal fulfilling all the requirements of Article 6(1) of the ECHR and Article 14(1) of the ICCPR. Further, it is not clear whether the objections against court clerks’ orders will lead to a review by a court of full jurisdiction, where substantive and procedural allegations may be raised. If not the case, this would be incompatible with the right to a fair trial. The proposed reform would also mean that there will be two parallel systems for adjudicating on petty offences cases, one carried out by a court, another by a court clerk, thereby potentially having similar cases being adjudicated according to different procedures, depending on the courts/location of the petty offence case, which goes against the right to equality in the administration of justice.

Second, the availability of a tribunal with full jurisdiction over the issuing of penalty notices – as required by fair trial guarantees – is similarly not sufficiently secured in the arrangements envisaged in the Draft Act.

Third, the proposed amendments mean that in fine proceedings in petty offence cases, the burden of proof will be shifted and no longer be on the prosecution, contrary to the principle of the presumption of innocence.

Fourth, the alleged wrongdoer, when appealing against the penalty notice has only seven days to gather all the evidence proving that they did not commit the offence and are precluded from submitting any further evidence (except those not known at the time of lodging the appeal). This de facto places them in a substantial disadvantage compared to the prosecution, without reasonable justification, and is therefore contrary to the principle of equality of arms embedded in Article 6 of the ECHR and Article 14 of the ICCPR. Moreover, the appellant will not be able to defend herself/himself with regards to the materials submitted by the prosecution, which are to be submitted only after the lodging of the appeal, which is at odds with the right to adversarial proceedings. It is therefore unlikely that the appellant will have adequate time and facilities for the preparation of a defence, which is also an essential element of the fair trial guarantees. Critically, it also potentially enables the police or prosecuting authority to tailor their evidence of what allegedly happened in a way which can exploit opportunities presented by the appellant’s evidence. Thus, not only does the appellant enjoy no right to require the prosecution to establish its case, but the appellant need not be made aware, and maybe will not be aware, of the detailed allegations against her or him when advancing evidence supposedly establishing her or his innocence at the time of lodging the appeal.

Fifth, the proposed amendments are likely to have a chilling effect on the exercise of fundamental freedoms, especially freedoms of expression and of peaceful assembly.