The Right of a Mentally Ill Person to Defend Himself in Petty Offence Proceedings and an Attempt to Introduce the Presumption of Guilt Principle

Abstract

As Article 42(2) of the Polish Constitution provides: “Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings. He may, in particular, choose counsel or avail himself – in accordance with principles specified by statute – of counsel appointed by the court.” This provision should be also applied to a legal situation of the accused in the petty offence proceedings. The purpose of this article is to point out the lack of an actual guarantee for persons with dysfunctions, indicated in Article 21 § 1 of the Petty Offences Procedure Code (KPW), to exercise their right to defence. This right is not fully exercised, although KPW Article 4 directly provides that “the accused shall have the right to defence, including the right to a counsel, of which s/he should be instructed.”

According to Article 42(3) of the Polish Constitution, “Everyone shall be presumed innocent of a charge until his guilt is determined by the final judgment of a court.” According to the amendments mentioned above, this rule will be violated.