Home Law International Handbook of Juvenile Justice
COURTS AND JUVENILES
Juvenile cases with a few exceptions are dealt with by family courts. As mentioned earlier, no penalties provided for adults could be imposed on juvenile lawbreakers by family courts. The JA in the current wording enables the family court to impose a penalty exclusively in the course of enforcement proceedings if the juvenile at first was given the disposition of the placement in a correctional institution but he completed 18 years before this judgment started to be enforced and the execution of the correctional measure would be inadvisable in the opinion of the court. In practice, the latter possibility has been used by family courts extremely rarely. In cases concerning 15- and 16-year-old juveniles suspected of most serious crimes, the family court can transfer the case to the public prosecutor in order to bring an accusation to the common criminal court. Juvenile offenders exceptionally tried in common criminal courts may receive penalties provided for adults. The proceedings in such cases are criminal proceedings and sanctions imposed in these proceedings are not included in statistics on family court dispositions in juvenile cases.
Formal judgments issued by the family court in juvenile cases include the imposition of educational, medical, or correctional measures. According to the JA, all educational and medical measures may be applied both to juveniles who have committed ‘punishable acts’ while between 13 and 16 years of age and to juveniles less than 18 years of age displaying problematic behaviors (‘signs of demoralization’). Correctional measures, this is suspended or unsuspended placement of a juvenile in a correctional institution, may be imposed only on juveniles who have committed ‘punishable acts’ prohibited by the criminal law as offenses or fiscal offenses after the 13th birthday, but prior to the 17th.
While choosing between different measures the family court should take into account the interest of the juvenile concerned, the need to achieve positive changes in his personality and behavior, as well as the need to encourage and support proper fulfillment of duties by the juvenile’s parents or guardians. With regard to correctional measures, some additional factors should be pointed out, such as a high degree of the perpetrator’s negative antisocial attitudes and behaviors, the circumstances and the nature of the act committed, as well as ineffectiveness of educational measures which have proved unsuccessful in resocializing offenders. The JA does not require the establishment of the culpability of the juvenile in the meaning of his ability to act with discernment at the time of the ‘punishable act,’ because the legislator considers this to be irrelevant for the choice of the most adequate measure. It also does not provide the principle of proportionality in reactions to the seriousness of the ‘punishable act.’
The catalog of educational measures has changed since 1982 to a limited extent. Currently, Article 6 of the JA enumerates the following educational measures:
The vast majority of educational measures do not change the place of residence of the juvenile who stays with his family during the enforcement of imposed measures. Among measures resulting in the change of residence may be the placement of a juvenile in a professional foster family, in an organization or institution functioning as a boarding school as well as in a youth educational center. Medical measures may be applied to juveniles who are suffering from mental deficiency, mental disease, some kind of mental disorder or from alcohol and drug addiction. These measures imply placing juveniles in a psychiatric hospital, other suitable health care institutions, a social welfare institution, or a suitable youth educational center. Both educational and medical measures are applied for an indeterminate period of time. As a rule these measures terminate when a juvenile reaches the age of 18, but in some cases their duration is extended to his 21st birthday. The family court that executes the measures may change, revise, or repeal them at any time if it is advisable for educational reasons.
The most severe measures provided by the JA are correctional measures. They consist of suspended or unsuspended placement of a juvenile in a correctional institution. Similar to other categories of measures, the correctional ones are also applied for an indeterminate period of time. The juvenile placed in a correctional institution can stay there not longer than up to 21 years of age, although he may be granted conditional release earlier.
In practice, family court dispositions in proceedings concerning ‘punishable acts’ impose mainly educational measures (Ministerstwo Sprawiedliwosci
[Ministry of Justice] 2015b). In the period 2004-2014, the total number of juveniles on whom educational, medical, and correctional measures were imposed due to ‘punishable acts’ declined from 28,342 in 2004 to 16,388 in 2014 (Table 17.1). The structure of imposed measures remained relatively stable. The most frequently applied measures were educational measures, including reprimand, supervision by a probation officer, supervision by parents, and applying special conditions. As can be seen from the Table 17.1, in the analyzed period about one in three juveniles on whom measures were imposed due to ‘punishable acts’ received reprimand and also one in three were placed under the supervision of a probation officer. The numbers and percentages of juvenile offenders placed under the supervision of parents were falling while application of special conditions showed an upward trend. Other educational measures that were enumerated in Table 17.1 were imposed on juvenile perpetrators of ‘punishable acts’ significantly rarely, including the placement of a juvenile in a youth educational center. The latter disposition was received by 811 in 2013 and 728 in 2014.
In comparison with educational measures, the medical ones have been used by family courts very rarely. In 2014 there were 78 juveniles adjudicated due to punishable acts who received medical measures, including 16 juveniles placed in a
Table 17.1. Selected educational measures imposed on juvenile offenders in the years 2004-2014
Note: Statistical data in this Table show the most frequently applied educational measures. Family courts imposed on juvenile offenders also other educational measures but less frequently
“Data in this column refer to the number of juveniles on whom educational, medical, and correctional measures were imposed and not the number of measures. Educational measures may be combined what means that the family court may impose two or more educational measures on the same juvenile
Source: For the years 2004-2012 Giowny Urz^d Statystyczny (Central Statistical Office). Rocznik Statystyczny Rzeczypospolitej Polskiej (Statistical Yearbook of the Republic of Poland). Warsaw, yearly publication; for the years 2013-2014 Ministerstwo Sprawiedliwosci (Ministry of Justice 2015b). Wydziai Statystycznej Informacji Zarz^dczej Departament Strategii i Funduszy Europejskich. Nieletni wg orzeczonych srodkowprawomocne orzec- zenia w latach 2008-2014. Retrieved from http://isws.ms.gov.pl/pl/baza-statystyczna/opracowania-wieloletnie/
Figure 17.3. Number of correctional measures imposed on juvenile offenders in the years 2004-2014. Source: for the years 2004-2012 Glowny Urz^d Statystyczny (Central Statistical Office). Rocznik Statystyczny Rzeczypospolitej Polskiej (Statistical Yearbook of the Republic of Poland). Warsaw, yearly publication; for the years 2013-2014 Ministerstwo Sprawiedliwosci (Ministry of Justice 2015b). Wydzial Statystycznej Informacji Zarz^dczej Departament Strategii i Funduszy Europejskich. Nieletni wg orzeczonych srodkow prawomocne orzeczenia w latach 2008-2014. Retrieved from http:// isws.ms.gov.pl/pl/baza-statystyczna/opracowania-wieloletnie/.
psychiatric hospital and 57 in other health care institutions (Ministerstwo Sprawiedliwosci [Ministry of Justice] 2015b). The same applies to correctional measures, this is the most severe measure provided by the JA for juvenile offenders. Figure 17.3 shows the clear downward trend in the use of correctional measures. In 2004 such measures were imposed on 1322 juveniles, including 781 juveniles who received a suspended correctional measure, and 541 juveniles placed in a correctional institution without suspension. In 2014 there were only 411 dispositions concerning the placement of a juvenile in a correctional institution, most of which (216) referred to a suspended measure.
It may be added that a steady decline in the use of correctional measures has been a long-term tendency in Poland (Stando-Kawecka 2015). Due to the lack of empirical research it is not possible to explain this tendency clearly. It may be assumed that family judges dealing with juvenile offenders are reluctant to place them in correctional institutions because they do not consider it to be in the interest of juveniles. Another possible explanation refers to the assumption that family judges who adjudicate juvenile cases under the civil procedure use cautiously, measures of ‘penal’ origin as is the case with the correctional institution. The latter hypothesis seems to be particularly substantial after the judgment of the European Court of Human Rights in the case Adamkiewicz v. Poland. The
Court found the violation of the European Convention of Human Rights because of the lack of procedural safeguards in juvenile proceeding which resulted in the placement of the juvenile concerned in a correctional institution.
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