A mandate without the anticipation of refusal? We already have expert opinions

A mandate without the anticipation of refusing to accept it and, in the event of opposition, a judicial way and the request to gather evidence of its innocence in a short time, is the main point of the proposal to amend the rules of the mandate. The revolutionary concept has now occurred in the media, but present fewer remember it, although the task inactive remains in the Sejm. but he's already gotten quite a few legal advice. These are clear. The question remains an open question – what happens next?

The task was presently stuck in the Sejm at the first reading stage. There are many indications that the authors of this compromising thought would like to forget about it as shortly as possible. And let us remind that the proposals for changes in the mandate procedure were formulated by Solidarna Polska Zbigniew Ziobry, who are politically liable for it, and his seismic “face” became known to Jan Kanthak.

As the first call to reject the draft at first reading, the ultimate Bar Council argued that the proposals submitted contradict the fundamental values that should apply in the democratic state of law. At the same time, she recalled that there are courts in specified a country, not the police.

In turn, as we read in the explanatory memorandum, the proposed law aims to improve proceedings in cases
on offences and the removal of the burden on the judges of the general courts from the obligations relating to the examination of offences, while preserving the constitutional and conventional warrant of the right to a court in criminal matters.

For this reason, according to the task promoters, it should be assumed, inter alia, that the punished individual cannot refuse to accept the mandate and the punished individual will be able to challenge the criminal mandate imposed in the area court within 7 days, in terms of both guilt and punishment. The punishment word will stay in force until it is revoked.

The appeal should, as we read in the draft, show all the evidence known to the applicant in support of his claims, under the punishment of losing the right to invoke that evidence in further proceedings. The suspect may not, in judicial proceedings, bring evidence another than that indicated in the appeal, unless the evidence was not known to him at the time of the appeal.

Lawyers agree on the proposed changes – the task is unconstitutional in many points, not congruent to the democratic regulation of law. These doubts besides concern the mode of adoption of the task itself, which, even in formal terms, may be questionable.

Here are the most crucial passages of legal opinions concerning the task Solidarne Poland:

Dr Teresa Gardock, prof. of SWPS at the University of Humanities and Social Sciences in Warsaw, writes that “provided by the bill amending regulations form the basis of real police justice. The proposed amendments lead to a citizen covered by a warrant of presumption of innocence being charged with him by an officer in the form of a criminal mandate. It is in a law-abiding country unimaginable‘.

In conclusion, he writes that:

‘It is unimaginable in a law-abiding country to construct a punishment where:
– the citizen cannot refuse to accept the punishment of an officer (most frequently a police officer) who is not entitled to judicial authority, so that the power to punish with a mandate ceases to be a form of consensus punishment and simply becomes a criminal justice system;

– if a citizen wishes to exercise his constitutionally guaranteed right to judicial justice, he or she must make an appeal against a fine imposed by a punishment and prove himself that the punishment was incorrect by presenting all the evidence together with the appeal against its non-compliance;

– the launch of the judicial procedure does not defend the interests of the criminal, clearly indicating that the prohibition is not mandatory reformationis in peius.

Prof. Piotr Kruszyński from the Faculty of Law and Administration of the University of Warsaw gave an extended and very factual opinion.

"In the opinion of the author, it appears that the provisions of the draft law amending the Act – Code of Conduct on Offences (Seymic Printing 866), in part concerning the proposed amendment to the mandate procedure, are not compatible with the Constitution. First of all, the content of the provisions of this legislative proposal is contrary to Articles 42(2) and (3) and 78 of the Basic Law. These standards do not correspond in any way to the constitutional rule of presumption of innocence, as their content leads to a real reversal of the rule of the burden of proof, which appears unacceptable. In addition, the proposed solutions lead to a regulation or even the elimination of the right of defence of the accused, which is incapable to sufficiently realize the content of the charges and its evidence activity is limited by evidence. Moreover, the content of the proposed amendments leads to the belief that the legislator did not supply the offender with the right to bring an effective, effective remedy that would consequence in effective review of the appeal. The mandate procedure appears to be amended as it is flawed. In particular, it should be possible to make a declaration of acceptance or refusal of the mandate within 7 days of the imposition of the fine. The acceptance of the mandate would consequence in the same consequence as the erstwhile one, and the refusal to accept would consequence in a general procedure being initiated.

Prof. Marek Chmaj referred, among others, to the formal scenes of the project.

‘Occasions accompanying the Project's contribution propose that at least any of the signatures under the task have not been decently tabled by Members, and the draft was submitted in parliamentary mode in order to avoid inter alia the work to consult the Project, which may indicate a breach of the mode applicable to the adoption of laws (Articles 2 and 118(2) of the Constitution).

It should be signalled, added Chmaj, that the project's rules in these areas may besides to be in contradiction the binding global agreements of the Republic of Poland, including Article 6(1), conviction 1, paragraphs 2 and 3(b) of the ECHR.

What next with the noisy task of Solidarity Poland? It is presently inactive at the first reading phase and most likely its authors would very much like it to be forgotten. I hope so. However, it is hard to avoid the impression that the submitted task is An effort to take distant the law of our Latin civilization – it is the Roman rule of presumption of innocence. It is improbable that Zbigniew Ziobro as a lawyer would know this principle. It can so be assumed that the task is simply a full aware effort to implement a highly repressive apparatus for citizens.

The question is, what did citizens deserve in the opinion of Solidarne Poland politicians?