Claiming that the restrictions placed on defence possibilities is a violation of the right of defence (Article 6 § 3 c of the Convention) as well as the right to a fair and public hearing (Article 6 § 1 of the Convention), the Tribunal also challenged some of the provisions of the Act of 26 October 1982 on proceedings in juveniles’ cases (Journal of Laws of 2002 No. 11, Position 109 with later amendments).

Contact with the lawyer
At the beginning of December 1997 the 15-year-old applicant was arrested and questioned in connection with a rape and murder of a 12-year-old boy. At the police station the applicant initially did not admit his guilt, but on a later stage of questioning he changed his statement. Next, he was questioned by a juvenile department judge, who decided that he should be placed in a home for detained juveniles and assigned him a lawyer. Only six weeks after the arrest did the applicant get a chance to contact his defence lawyer. And only then was he informed about the right to refuse to make a statement. From that moment on, he consequently pleaded not guilty and refused to make a statement. In the end, he had the chance to contact his lawyer only twice.

In October 1998 the juvenile department presided by the same judge who conducted the explanatory proceedings found Paweł Adamkiewicz guilty. It pointed to the fact that, although he was not advised of his right to refuse to make a statement, the questionings were carried out properly. In accordance to the sentence, the applicant was placed in a correction centre, where he stayed for six years. The applicant appealed against the sentence, complaining about the violation of the right of defence and basing the decision on illegally obtained evidence.

The court of appeal found negligence in the exercise of the right of defence, but claimed they did not have a decisive influence on the sentence. In 1999 the Supreme Court dismissed the revocation of the sentence.

The applicant complained to the Tribunal about the violation of the right to a fair trial through obstructing the contact with the lawyer. He also claimed that an objective hearing of the case was impossible, since the judge who conducted the explanatory proceedings was not excluded from the bench.

The Tribunal stated that there was a violation of article 6 § 3 (c) in connection with 6 § 1 of the Convention and stressed that in instances of repressive proceedings, when the suspect is under age, the state is obliged to guarantee that they have access to a lawyer. The Tribunal also pointed to the fact that in such cases the state should follow the principle of protection of minor’s interests. Another premise is the principle of individualization, which requires adjusting the proceedings to the age, health conditions and stage of intellectual and psychological development. The Tribunal claimed that it was not possible for the applicant to defend himself effectively, which resulted in the violation of the right to a fair and public hearing, and held that the applicant should be paid compensation in the amount of 10,000 Euro.

Changes are necessary
The described case clearly shows that the term "minor’s interest" might be interpreted in many different ways. The Tribunal held that it should be viewed as strongly related to the procedural rights of a minor. It also approved the claim about making effective defence impossible, as well as the claim about lack of objectivity of the juvenile department that heard the case. In the Polish system of dealing with juvenile offenders, a juvenile department judge conducts explanatory proceedings and adjudicates on the application of correction means, which is supposed to serve the interest of minors, since the juvenile department is first of all expected to take into account their interests and well-being. The Tribunal suggested that such a solution does not entirely match the standards of a fair and public trial.

Although the decision of the Tribunal does not affect Polish government directly, it might be worth to discuss some changes in the system of dealing with juvenile offenders.

Artur Piertyka – a lawyer in Stategic Litigation Pogram