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THE COUNTRY’S STANCE TOWARD THE UN COMMITTEE ON THE RIGHTS OF THE CHILD
Poland ratified the UN Convention on the Rights of the Child (further: Convention) in 1991. The Optional Protocol to the Convention on the sale of children, child prostitution, and child pornography as well as the Optional Protocol on the involvement of children in armed conflict was ratified in 2005. It should be noted that as early as 1978 Poland launched an initiative for adoption of the Convention on the Rights of the Child and presented the draft of such a convention (Lopatka 1993). Undoubtedly, under the communist regime the protection of civil and political rights was contrary to the interests of the state authorities. Those rights were exclusively of a declaratory nature because of lack of mechanisms for their effective enforcement and were widely violated (Stawicki 2011). However, when it came to the rights of children, the Polish government actively participated in the work of the United Nations aiming at the protection of children and strengthening their rights. Such a stance by state authorities resulted from experiences of World War II in which many children lost their lives and were exposed to immense suffering. Traditions and achievements of Polish human sciences were other factors that seemed to contribute to the involvement of Polish authorities in the creation of the international system of protection of children’s rights. Since the 1920s and 1930s it had been stressed in the pedagogical, psychological, and philosophical literature that the child was a person and not a being that would become a person only in the future. It was emphasized that the child was the subject of rights and not the object of protection who had to be respected and whose rights should be taken seriously (Lopatka 1993). Those ideas were reflected, among others, in books published in the interwar period by Janusz Korczak, the physician, teacher, writer, journalist, and social activist who refused to leave the children from the orphanage during the extermination of the Warsaw Ghetto by Nazis in 1942.
The commitment of Polish pedagogues and psychologists to the concept of a child as subject to rights had an effect on discussions about the juvenile justice system in the postwar period and the final shape of the JA enacted in 1982. In the early 1990s, shortly after the ratification of the Convention on the Rights of the Child by Poland, the juvenile justice system based on the 1982 JA was examined by criminologists in order to assess its compliance with the Convention. In the opinion of Kolakowska-Przelomiec and Wojcik (1993), the JA was generally compatible with standards included in the Convention, although they submitted some reservations concerning particular issues, such as the age of criminal majority or the absence of sufficient procedural safeguards (pp. 39-45).
The minimum age of criminal majority is still a source of discrepancy between the Polish juvenile law and the Convention on the Rights of the Child. Article 1 of the Convention states explicitly that a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier. The Committee on the Rights of the Child in the General Comment No. 10 drew the attention of state parties of the Convention that the upper age limit for the application of the rules of special juvenile justice should apply for all children who at the time of an offense have not reached the age of 18 years (Committee on the Rights of the Child 2007:11-12). In Poland, the age of criminal majority is set at 17 years of age at the time of the alleged offense. Contrary to standards included in the Convention, the rules of special juvenile justice do not apply to 17-year-old perpetrators.
Additionally, in Poland 15- and 16-year-old juveniles under certain circumstances may be tried as adults by the common criminal court according to the adult criminal procedure. They are also subject to penalties provided for adults with the exception of life imprisonment. Provisions of the 1997 Criminal Code concerning juveniles who are exceptionally criminally responsible as adults deviate from recommendations of the Committee on the Rights of the Child. According to the Committee, state parties that allow, by way of exception, that children, i.e., persons below 18 years of age, are treated as adult criminals, should change their laws with a view to applying their juvenile justice rules to all persons under the age of 18 years (Committee on the Rights of the Child 2007:12). This position of the Committee on the Rights of the Child has recently been supported by the European Committee for the Prevention of Torture (CPT) in its report during the last visit to Poland. According to the CPT, the Polish authorities should ensure, without further delay, that all juveniles who are detained by the police benefit from the relevant specific safeguards for juveniles provided by the law. Those safeguards should apply to all persons under 18 years of age (European Committee for the Prevention of Torture 2014:18).
Another matter of concern relates to the proceedings due to ‘signs of demoralization.’ The Committee on the Rights of the Child is of the opinion that the state parties of the Convention should abolish the provisions on status offenses in order to establish an equal treatment under the law for children and adults. Behavior such as vagrancy, roaming the streets, or runaways according to recommendations of the Committee should be dealt with through the implementation of child protective measures, including effective support for parents and/or other caregivers and measures which address the root causes of this behavior (Committee on the Rights of the Child 2007). Under the JA problematic behaviors referred to as ‘signs of demoralization’ are not punished with penalties but responded with educational measures. However, juveniles showing such behaviors are included in the juvenile justice system and receive family court dispositions which stigmatize them as ‘demoralized’ persons. The growing number of juveniles dealt with by family courts, due to ‘signs of demoralization’ suggest that in practice such proceedings are used as a substitute for an effective system of support for the child and his family encountering problems.
It should also be noted that the Committee on the Rights of the Child in its General Comment No. 10 emphasized the need to recognize procedural rights and safeguards of every child alleged as, accused of, or recognized as having infringed the penal law. In this context the Committee points out to Article 40 of the Convention containing an important list of rights and guarantees aiming to ensure fair treatment and trial for juveniles (Committee on the Rights of the Child 2007). In Poland, juvenile proceedings due to both ‘signs of demoralization’ and ‘punishable acts’ are based on provisions of civil procedure which does not provide the same guarantees of fair trial as those required in criminal cases. Undoubtedly, there is some discrepancy between the legal state and practice in Poland and both recommendations of the Committee on the Rights of the Child and standards developed by the European Court of Human Rights on procedural safeguards for juveniles (Stando-Kawecka and Kusztal 2015).
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