Barbara Stando-Kawecka graduated in educational sciences in 1981 and in law in 1984 at the Jagiellonian University of Cracow in Poland. In 1991 she obtained her PhD in criminology at the Jagiellonian University. In 2008 she obtained the academic degree Dr. Hab. in criminal law with the study on juvenile criminal law. She has been working at the Jagiellonian University, Faculty of Law, Department of Criminology. Her research activities focus on juvenile crime and juvenile justice systems, criminal policy, penitentiary law and penitentiary policy. She took part in several international research projects concerning the protection of rights of persons deprived of liberty and execution of prison sentences as well as juvenile justice systems. She also cooperated with the Helsinki Foundation of Human Rights in Poland and wrote reports for the Ministry of Justice.

QUESTION.- Can you please present us a short introduction of your activity related to juvenile justice, as a researcher involved in this field?

ANSWER.- For about twenty years I have worked at the Jagiellonian University of Cracow, at first at the Department of Pedagogic and then at the Faculty of Law. Currently I have been working as the Head of the Department of the Penitentiary Law and Policy. My primary fields of interest are issues related to the criminal and penitentiary policy, including reactions to juvenile delinquency. In last years I published in Poland the book “Juvenile Criminal Law. From Care to Responsibility” (Prawo karne nieletnich. Od opieki do odpowiedzialnosci) as well as some articles concerning the changing approach to juvenile offenders at the end of the XX century. Recently I have also participated in the EU research project “Juvenile Justice Systems in Europe”.

Q.- What is the present condition of the juvenile justice system in Poland, and the status of any reforms pending in this respect?

A.- The juvenile justice system in Poland has been regulated by the Juvenile Justice Act of 1982. This act, although passed during the communist times and shortly after introducing the Marshall Law in Poland, has been based not on the punitive approach but on the welfare model. It stresses the need to prevent juvenile delinquency and re-offending by applying protective, educational and correctional measures. As in other countries following strictly the welfare approach, there are also in Poland many problems concerning procedural rights of juveniles in conflict with the law to a fair trial as well as problems relating the proportionality of reactions not only to the personal and family circumstances of the juvenile offender but also to the offence committed. Since the beginning of the 1990s there have been many proposals aiming at reforming the juvenile justice system. According to some of them, the scope of exceptional criminal responsibility of juvenile offenders - who are treated not under the welfare system but under the adult criminal law - should be broadened. Such proposals were partly introduced to the criminal law - in the 1997 Criminal Code the age of exceptional criminal responsibility of juveniles who committed the most serious crimes was lowered from 16 to 15 years of age. At the same time, efforts have been made in order to prepare the draft of the new juvenile justice act that should replace the currently binding Juvenile Justice Act of 1982. So far, such efforts have not been successful and the reform of the juvenile justice system is still under discussion.

Q.- What are the shared competences between the respective juvenile justice departments of the ministries of justice, education, health and labour? How do they work? Do the ministries share common departments? Is there a specific youth court?

A.- There are two specific features of the Polish juvenile justice system, not common currently in other European countries. The first feature is related to the fact that under the 1982 Juvenile Justice Act the notion of ‘juvenile’ covers not only juveniles in conflict with the criminal law (this is perpetrators of offences, finance offences and selected petty crimes committed after having reached 13, but before 17 years of age) but also refers children and youth under 18 years of age who show problem behaviours. The latter category of juveniles can be describe as ‘pre-delinquent’ children who are to a large extend treated by the 1982 Act similarly to juvenile offenders. What is the second special feature is the existence of family courts with broad competencies. Their authority ranges from cases heard according to family and guardianship law, cases regarding enforcement of compulsory treatment of alcoholics and drug addicts, and juvenile cases related to problem behaviour of persons under the age of 18, as well as ‘punishable acts’ committed by those aged 13 to 16. The basic idea underlying the concept of family courts is that family judges should have better knowledge about all the problems concerning different members of a given family. They should also be specially trained in order to obtain additional knowledge of education, psychology and social work. Shortly speaking, there are no in Poland specific youth courts or youth criminal courts, but it is the family courts’ task to deal with juvenile offenders as well as children showing problem behaviour. Such concept of family courts contributes to current problems concerning providing juvenile offenders with the rights to a fair trial.

Unfortunately, there is no common department related to juveniles shared by different ministries. As a result, there is often lack of coordination between activities developed by different ministries. Let me show one example. So called youth educational centres and youth sociotherapeutic centres, designed for juvenile offenders as well as juveniles showing problem behaviour, should be set up and run by local government, however, they are subordinated to the Ministry of Education. Insufficient coordination between the activities of the Ministry of Justice, Ministry of Education and Ministry of Labour and Social Policy has resulted in many problems concerning the placement of juveniles in such institutions: the number of available places is too small, there are no provisions regulating the temporary placement of juveniles in these institutions during the court proceedings, there are juveniles spending weeks or even months in the police establishments for children while awaiting placement in these centres, although the police establishments are not adjusted to meet the needs of children staying in them for a period exceeding a few days.

Q.- How should the Polish juvenile justice system be improved to make the whole system for the resocialization of young offenders more effective?

A.- I am afraid, there is a long list of things to do and let me mention only the most important of them. According to the 1997 Criminal Code 17-years old offenders are criminally responsible under the adult criminal law; the legal proceedings and punishment applied to them are the same as for adults with the possibility of extraordinary mitigation of penalties. Shortly speaking, the age of the full criminal majority in Poland is 17. However, in the light of the UN Convention on the Rights of the Child all offenders under 18 years of age are considered children and they should be treated differently to adults if charged with criminal offences. In this respect provisions of the Polish criminal law are inconsistent with the UN Convention. With respect to juveniles treated under the welfare system provided by the 1982 Juvenile Justice Act, there are problems concerning procedural safeguards during family court proceedings. The procedural provisions regulating such proceedings are very sophisticated, because they create ‘hybrid’ proceedings based partly on both the civil and criminal procedure with additional exceptions introduced by the Juvenile Justice Act. As a result, these provisions are very difficult to be applied in practice. What is more, they are to a large extend based on the concept of a ‘paternalistic’ family judge who should have a great scope of discretion and deal with juvenile cases at every stage of proceedings (this is at the preliminary stage as well as the court and implementation stage). Recently the European Human Rights Court in the judgement given in the case Adamkiewicz v. Poland has found violation of the Article 6 § 1 of the European Human Rights Convention in situation in which the same family judge had made broad use of the extensive powers available to him under the Juvenile Justice Act during the investigation by ordering the opening of the proceedings and directing the evidence-gathering operations following which he had decided to commit the applicant for trial and then had ruled in the same case as president of the trial bench. In this judgement the EHRC did not share the opinion supported by some representatives of the legal doctrine in Poland according to which the right to impartial tribunal is irrelevant in proceedings in cases of juveniles in conflict with the law because family court judges do not aim to punish juvenile offenders but they act in order to provide juveniles with necessary protection, education and upbringing. Among other problems it may be mentioned the lack of the principle of proportionality to the circumstances of the offence committed by a juvenile, applying educational and correctional measures, including the placement of a juvenile in a secure educational or correctional institution, for an indeterminate period, the lack of precisely regulated legal status of juveniles placed in such institutions as well as the lack of research on the effectiveness of the measures imposed on juveniles.

Q.- What procedure the court should follow in order to impose to a juvenile offender an alternative sanction to the imprisonment?

A.- As a rule, the family court - while dealing with juvenile offenders - imposes only educational, medical and correctional measures. Some of these measures, such as for example the placement of a juvenile in a youth educational centre or in a correctional house, as a matter of fact mean deprivation of liberty in special institutions for juveniles for an indeterminate period. The execution of these measures terminates when the juvenile reaches 18 or - in the case of correctional houses - 21 years of age, but juveniles may also be released earlier provided that the educational goals of the placement are fulfilled. The penalty of imprisonment may be impose on juveniles, this is offenders who were less than 17 years of age at the time of the offence, only exceptionally and in practice it is applied very rarely. One of the exceptions refers juveniles who committed one of the most serious crimes while being at least 15 years of age - they may be criminally responsible under the adult criminal law and sentenced to imprisonment. Other exceptions refer juveniles who were under 17 years of age at the time of the offence but are at least 18 at the time of the judgement or the beginning of the implementation of correctional measures.

Q.- Which are the current trends in juvenile delinquency in Poland?

A.- The main source of information on juvenile delinquency in Poland are police statistics. According to them, juvenile offenders are classed as persons who have committed offences after having reached the age of 13, but before turning 17. The overall number of juvenile offences recorded by the police had been rising continuously in the years 1990-1995, but after 1995 no clear trends could be observed. Up to 2002 and 2003 the number of juvenile offences dropped off almost to the level of 1990, but that trend was again reversed in subsequent years. Yet the overall impression is a rather stable situation of reported juvenile delinquency in Poland, however, between the 2008 and 2009 the total number of recorded juvenile offences increased significantly from 74,219 up to 85,020. At the same time the number of juvenile suspects dropped from 52,081 in 2008 to 50,872 in 2009. The explanation of these diverse trends in numbers of juvenile offences and juvenile suspects is impossible without further research.

Q.- Which are the most common crimes committed by these juveniles? What about the type of drugs used or abused. Can you please refer to any statistical data, if possible?

A.- As in other European countries, the most common crimes committed by juveniles in Poland are property crimes. In the 1990s, however, the number of robberies had been growing significantly and then it stabilised at a relatively high level. In last years the police recorded about 8-9 thousands of robberies committed by juveniles among about 70-80 thousands of all juvenile offences, what means the ratio over 10%. What is the next negative tendency that may have been observed in juvenile delinquency since the beginning of the 1990s, is the increase in the proportion of juvenile offences against life and health (bodily injury, brawl and battery). At the beginning of the 1990s offences against life and health constituted about 2 % of all offences committed by juveniles, while in 2009 the proportion was four times higher (9 %). Of course, police statistics have to be interpreted cautiously, because changes in these statistics reflect not only changes in criminality but also many other factors, such as changing style of working by the police or changing social attitudes towards youth crimes. Undoubtedly, changes to the scope of the criminalization of certain behaviours also contribute to the number of recorded crimes. This is the case of drug crimes in Poland; since 2000 the possession of any quantity of illegal drugs has been a criminal offence. After criminalization of the possession of any quantity of drugs the number of juvenile drug offenders rose significantly from 954 in 1999 to 3,598 in 2009; the vast majority of juvenile drug offenders are those accused of drug possession.

Q.- How does Polish law protect juveniles who are only in conflict with the law because of drug or alcohol addition?

A.- Using alcohol by children under 18 years of age in the light of the Polish Juvenile Justice Act constitutes problem behaviour, described in terms of the act as a sign of ‘demoralization’. As for drugs, the situation is different, because for about ten years the possession of any quantity of illegal drugs has been a criminal offence. As a result, juveniles aged from 13 to 16, who posses any quantity of drugs, commit ‘punishable act’ under the Juvenile Justice Act while those being under 13 years of age show signs of ‘demoralisation’. On juveniles showing signs of demoralization who are drug or alcohol addicted educational or medical measures may be imposed by the family court, such as the obligation to undergo the outpatient treatment or the placement of a juvenile in a closed therapeutic institution, youth sociotherapeutic centre or youth educational centre. Family courts may apply the same medical or educational measures to juvenile offenders (this is perpetrators of ‘punishable acts’ in terms of the 1982 Juvenile Justice Act) and additionally they may imposed on such juveniles correctional measures which consist in placing them in correctional houses similar to reformatories known in other countries. In practice the medical measures consisting in placing a drug or alcohol addicted juvenile in a closed therapeutic institution are applied very exceptionally. As a matter of fact, the criminalization of the possession of any quantity of drugs resulted in growing number of drug addicted juveniles placed in youth sociotherapeutic centre or youth educational centre that are not prepared to provide them with adequate treatment. There is also a special type of correctional houses designed for juvenile offenders with the history of alcohol or drug addiction.

Q.- What are the main approaches and modalities of assistance and intervention with juveniles’ abusers of substances? What kind of measures and diversion strategies are foreseen?

A.- It is necessary to stress that the juvenile justice system in Poland is based on the predominant role of family judges and family courts that deal not only with juvenile offenders but also with ‘pre-delinquent’ children, showing problem behaviours. By using their broad discretionary power family judges may drop the proceedings in juveniles cases on the principle of expediency, may impose educational measures by leaving juveniles in their families or place them in different institutions (educational, therapeutic, correctional). The choice of the most adequate measure in individual cases should be govern by the principle of the best interest of the juvenile. Before placing a juvenile in an institution it is obligatory for the family court to ask a special diagnostic centre to prepare a complex expertise concerning the juvenile’s personality as well as the recommended interventions. Without empirical research it is difficult to say in what way family judges use their discretionary power in cases related to juveniles who are drug or alcohol addicted. Unfortunately, such researches are rather exceptional in Poland.