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THE LEGAL STATUS OF JUVENILES

In Poland, various fields of law use such terms as ‘minor’ (maioletni), ‘child’ (dziecko), and ‘juvenile’ (nieletni). The term ‘minor’ is commonly used in civil law. The minimum age of civil majority in Poland is set at 18 years. According to the civil law, persons below 18 are minors (maioletni) while those at least 18 are adults (peinoletni). Exceptions include women who marry with the consent of the guardianship court while being at least 16 years of age who are treated as adults under the civil law.[1] Civil law provisions concerning the minimum age of majority are coherent with the Family and Guardianship Code. Pursuant to Article 92 of the latter Code, a child (dziecko) remains under parental responsibility until the age of civil majority.[2] The notion ‘juvenile’ (nieletni) is embedded in the criminal law and is used in the juvenile justice system which is separated from the adult criminal law. Additionally, it is commonly used in criminology in the context of juvenile delinquency. Pursuant to Article 10 § 1 of the currently binding Criminal Code of 1997, rules on criminal responsibility determined by the Code apply to perpetrators who committed offenses while being at least 17 years of age. Thus, 17-year-old offenders are ‘adults’ in the meaning of the Polish criminal law. The 1997 Criminal Code generally does not apply to juveniles, these are persons who have committed an act prohibited by the criminal law below 17 years. Instead, provisions of the JA apply.

In line with fundamental ideas of the protective and educational approach, the JA does not determine rules of criminal responsibility for juveniles but regulates the application of educational, medical, and correctional measures to them. At the same time, the notion of a ‘juvenile’ has been defined by the JA broadly. According to Article 1 of this Act, this term covers:

  • ( a) Perpetrators of ‘punishable acts’ committed after having reached 13, but before 17 years of age.
  • (b) Persons under 18 who show signs of problematic behavior not prohibited by the criminal law, referred to by the legislator as ‘signs of demoralization’.
  • (c) Persons to whom educational or correctional measures are enforced until the person is 18 or 21 years of age; the enforcement of particular measures imposed on juveniles shall cease ex lege upon completion by them of 18 or 21 years of age.

‘Punishable act’ is defined in the JA and means an action or omission defined by the criminal law as an offense, fiscal offense, or selected petty crime. Thus, ‘punishable act’ means an act or omission which would be an offense or a petty crime if committed by an adult perpetrator. In the JA the legislature did not use such terms as ‘offense’ (przestqpstwo) or ‘petty crime’ (wykroczenie) in order to stress that children below 17 years of age are not mature enough to be criminally responsible for their acts and, additionally, the determination of their culpability is irrelevant for the choice of the most appropriate measure. As for ‘demoralization,’ the JA has not defined this notion. Article 4 of the JA only enumerates some examples of behavior types or circumstances which are treated as signs of ‘demoralization’: violation of the principles of community life, commission of a prohibited act, truancy, use of alcohol or drugs, running away from home, prostitution, as well as association with criminal groups.

‘Punishable acts’ may be committed only by juveniles who are at least 13 years of age. It should be noted that there is no minimum age limit for juveniles showing ‘signs of demoralization.’ The commission of an act prohibited by the criminal law as an offense or petty crime by a minor less than 13 years of age does not constitute a ‘punishable act’ under the JA but may be considered as a sign of ‘demoralization.’ In the science of the juvenile law, ‘demoralization’ has been defined as a state or process that is characterized by negative attitudes and behaviors by a juvenile, in relation to the fundamental norms and principles of conduct required by the society (Sienkiewicz 1988; Bojarski et al. 2014). Undoubtedly, provisions concerning juveniles who show signs of ‘demoralization’ are intended to provide family courts with broad discretion in initiating state intervention according to basic assumptions of the paternalistic and protective approach. They allow family courts to impose on children who behave in an unacceptable way but do not infringe the criminal law the same compulsory educational and medical measures as is possible in the case of juveniles breaking the criminal law. The most severe category of measures provided for by the JA are correctional measures. These consist of suspended or unsuspended placement in a correctional institution and can be applied exclusively to juvenile perpetrators of ‘punishable acts’ prohibited by the criminal law as offenses.

According to views prevailing in the doctrine of the criminal law, the juvenile law is a separate branch of law and the juvenile justice system is distinct from the criminal justice system. However, educational, medical, and correctional measures applied to juveniles are of a compulsory nature, i.e., the imposition of a measure on a juvenile perpetrator of a ‘punishable act’ or a juvenile showing ‘sings of demoralization’ does not require the consent of the juvenile and his parents. Some of the imposed measures deprive juveniles of their liberty, as is the case of the placement of a juvenile in a psychiatric hospital, youth educational center, or correctional institution. Compulsory measures applied to juveniles within the system based on welfare and paternalistic ideology raise concerns about the legal status of juveniles and their procedural rights and safeguards.

Juvenile proceedings due to both ‘signs of demoralization’ and ‘punishable acts’ are vested in family courts. According to Article 20 of the JA, in juvenile proceedings as a rule civil procedure is applied. The JA enumerates exceptions to this rule when provisions of the Code of Criminal Procedure shall apply. The exceptions refer such matters as the collection and preservation of evidence by the police and the appointment and functions of a defense lawyer. The ‘hybrid’ mode of regulating the procedure in juvenile cases chosen by the legislator in 1982 has been criticized in publications on the juvenile law for many years as being unclear, nontransparent, and difficult to apply (Korcyl-Wolska 2004). Contrary to criminal procedure, civil procedure does not allow for the effective protection of some procedural rights required by standards of a fair trial, such as the presumption of innocence and the right to a defense (Stando-Kawecka and Kusztal 2015). Current empirical research indicates that the legal status of a juvenile suspect in juvenile proceedings is in many respects worse than the status of an adult suspect in criminal proceedings and far from the standards for child- friendly justice (Stando-Kawecka and Kusztal 2016). Among reasons contributing to the weaker status of a juvenile the following could be mentioned: the lack of clear and detailed provisions regulating actions taken by the police before referring the juvenile case to the family court, the lack of easy access to a lawyer free of charge, the concentration of both investigative tasks and the function of a trial judge in hands of the same family judge which raises doubts about the impartiality of the family court in juvenile proceedings. The latter problem was pointed out by the European Court of Human Rights in the case of Adamkiewicz v. Poland.[3]

  • [1] See Article 10 of the 1964 Civil Code (Ustawa z dnia23 kwietnia 1964 r.—Kodeks cywilny), Journalof Laws 1964/16, pos. 93 with subsequent amendments.
  • [2] See Article 92 of the 1964 Family and Guardianship Code (Ustawa z dnia 25 lutego 1964 r.—Kodeks rodzinny i opiekunczy), Journal of Laws 1964/9, pos. 59 with subsequent amendments.
  • [3] ECtHR, Adamkiewicz v. Poland, 2 March 2010.
 
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