Terms of appointing a guardian in order to exercise the rights of a minor who is the aggrieved party in criminal proceedings SK 5/12
At the hearings on 15 October 2013 and 21 January 2014, the Constitutional Tribunal considered joined constitutional complaints which concerned the terms of appointing a guardian in order to exercise the rights of a minor who was the aggrieved party in criminal proceedings.
At the hearings on 27 March 2012 and 15 November 2012, pursuant to Article 153(2) of the Act of 17 November 1964 – the Code of Civil Procedure in conjunction with Article 20 of the Constitutional Tribunal Act of 1 August 1997, the Constitutional Tribunal decided to consider the constitutional complaint in the case SK 55/12 together with the constitutional complaint in the case SK 5/12, to conduct the entire proceedings in camera (i.e. excluding the public) as well as not to broadcast the hearings via the Tribunal’s website.
In its judgment of 21 January 2014, the Constitutional Tribunal adjudicated that Article 51(2) of the Act of 6 June 1997 – the Code of Criminal Procedure in conjunction with Article 98(2)(2) in conjunction with Article 98(3) in conjunction with Article 99 of the Act of 25 February 1964 – the Family and Guardianship Code, insofar as they stipulated that a parent of a minor – acting as the child’s statutory representative – might not exercise the rights of the minor when the child was the aggrieved party in criminal proceedings against the other parent, and the provisions introduced an obligation to appoint a guardian for that purpose, were consistent with Article 47 in conjunction with Article 51(1), Article 48(2) in conjunction with Article 32(1) and Article 72(1) of the Constitution as well as were not inconsistent with Article 45(1) in conjunction with Article 32(1) and Article 72(3) of the Constitution. As to the remainder, the Tribunal discontinued the proceedings.
There was one dissenting opinion, submitted by Judge Teresa Liszcz.
The Constitutional Tribunal held that, in the context of the case under examination, a question had arisen about the constitutionality of representation in the case of a minor who was the aggrieved party in criminal proceedings, in the light of the well-established jurisprudence of the Supreme Court.
The Tribunal concluded that only introducing a guardian, as an unbiased representative of a minor, into criminal proceedings minimised the risk of a conflict between the interest of a parent who wished to represent the child in proceedings pending against the other parent and the interest of the child. Such a solution also guaranteed that decisions made to exercise the rights of the minor as the aggrieved party would be as unbiased as possible. In addition, the Tribunal mentioned risks posed by the necessity to evaluate – at the onset of preliminary proceedings – whether a given parent could represent the minor in a proper way.
In accordance with the procedure set out in Article 4(2) of the Constitutional Tribunal Act of 1 August 1997, the Tribunal issued the so-called signalling decision, in which it informed the Sejm of the Republic of Poland that legislative measures were indispensable to eliminate irregularities in criminal proceedings in which minors, being aggrieved parties due to an offence committed by their parent or parents, were represented by guardians appointed by family courts. The Constitutional Tribunal deemed that it was necessary to introduce regulations that would specify the powers of a person who could be appointed as a guardian of the said minor in court proceedings in the above-mentioned cases as well as an obligation to inform the parent about the course of the case.
The hearing was presided over by Judge Leon Kieres, and the Judge Rapporteur was Judge Małgorzata Pyziak-Szafnicka.