Konstytucyjne prawo do obrony przed sądem w RP

Abstract

The right to defence as one of the fundamental rules determining the discipline of penal proceedings towards persons who are the subjects to such proceedings, has nowadays the, status of a rule in the constitutional law, though it is not established in all constitutions. The right to defence is guaranteed in the constitutions of the following countries: Albania, Belarus, Brazil, Greece, Canada, Lithuania, Latvia, Portugal, Russia, Romania, Slovenia and Ukraine. In Chapter II of the Polish Constitution of 1997 a broad range of human and civil rights and freedoms was determined. They include the rights that can be classi fied as legal norms or norms of penal law (of substantive or procedural character). The Polish constitution confers the right to defence the status of the entitative law included in the catalogue of human and civil rights and freedoms. Whereas the determination of the method of execution of the right to defence, its range and mechanisms that ensure the implementation of this law are regulated on the level of legal subconstitutional acts, especially of a non–statutory character. The legislator is obliged to establish a penal law procedure (in a broad sense of this term) in such a way so that criminal suits could be conducted in a reliable way: quickly and efficiently – on one hand, and fairly – on the other. The constitution of the Republic of Poland guarantees the right to defence to each person who is a subject to penal proceedings. The fundamental guarantee of the right to defence in the Polish law is, according to the constitutional norm, the possibility of choosing a counsel for the defence. The guarantee of the right to defence is also the possibility of having a public defender, pursuant to the rules speci fied in the Act. The constitutional right to defence is not limited, however, to the possibility of using the services of a professional in the field of law. The range of this right is broader and comprises all the legal activities taken up by a person against whom penal proceedings are conducted (including his or her personal actions). The right to defence can be defined as all the activities taken up within limits of law that are to the best interest of the accused (the suspect) that lead to disproval of a charge, i.e. making the appropriate authority issue a decree or a decision concerning discontinuance of legal proceedings, or making the court to adjudicate an acquittal, or – when complete rebuttal of accusation is impossible, leading to a confirmation of a specific character of guilt (e.g.unintentional guilt), which can result in commutation of a sentence). The convict also has the right to defence, though exercising this right serves other objectives, e.g. the possibility of using the services of a counsel when he or she applies for interruption of execution of the penalty or conditional release from serving the full sentence It should be added that the legal regulation of the right to defence in Poland comprising constitutional and subconstitutional rules is consistent with international standards concerning the protection of human rights, stipulated especially in the Convention for the Protection of Human Rights and Fundamental Freedoms and International Covenant on Civil and Political Rights.