Bez kategorii

In May 2011, the Regional Examination Commission (REC) voided the results of a chemistry maturity exam of a group of students from schools in Ostrowiec Świętokrzyski, claiming that the student did not write the exam independently. Initially, the students only received general information which did not directly specify the exercises which raised examiners’ doubts.

“For those students, annulling the results of the exam had dire consequences. Without an opportunity to appeal this decision, the students were not able to apply for studies, and their plans for the upcoming years became unrealistic,” says advocate Paweł Osik.

The students appealed the REC’s decision to the administrative court. The court ruled, however, that there is no possibility in law to question the annulment of a maturity exam. The Supreme Administrative Court upheld this ruling. It also emphasized that the sheer fact of having one’s maturity certificate does not determine the “right” to be admitted to any studies.

18 students filed complaints with the Constitutional Tribunal questioning the lack of procedures to appeal decisions annulling a maturity exam. They claimed that this gap in law violates, among others, their right to court and education, as well as the rights to protection of dignity and good name.

During the proceedings before the Constitutional Tribunal, the director of the Central Examination Commission argued that the decision-making process on the annulment of a maturity exam has multiple stages. “The problem is that the whole procedure had an internal character. The students did not know that such proceedings were ongoing. Nor did they have the possibility of presenting their own arguments,” says advocate Paweł Osik.

In the proceedings before the Constitutional Tribunal, representatives of the Prosecutor General claimed that the complaints were illegitimate because the students did not exhaust all available legal measures, for example they did not appeal to a civil court. “In our opinion, a civil court is not proper in this matter. In our constitutional complaints, we indicated a violation of the right to a proper court. And actions of administrative organs are controlled by administrative courts. A common court will not void a decision issued by an administrative body,” says advocate Paweł Osik.

The Constitutional Tribunal postponed the trial until 22nd June 2015.

Information published by Dziennik Gazeta Prawna suggests that cases notified to prosecutors’ offices were too often registered in the Ko register instead of the investigative register. The former contains cases notified anonymously, or those which belong to the competences of another prosecutor’s office. This practice was to cover the actual rate of incoming cases and, thus, produce better statistical outcomes for a given prosecutor’s office.

„This situation proves that the problem of how to maintain statistics is noticed even within the prosecution itself. If the Ko register contains over 50 per cent of cases then this is a disquieting signal,” says advocate Paweł Osik. “Appropriate registration of cases has great importance from the perspective of the right to a fair trial and the right to have one’s case heard without undue delay,” he adds.

„Inevitability of even lenient punishment is more important than its severity. Rigid sanctions should be considered with great caution. The court ought to have the necessary flexibility in imposing a penalty, so that it can each time adjust it to the circumstances of a given case,” write advocates Małgorzata Mączka-Pacholak and Paweł Osik in their commentary on the amendments to Polish traffic law.
The traffic law amendments introduce, among others, new categories of crimes (driving without required permits which, until now, was a minor offence) and new rules governing the seizure of a driving license. In the light of the new regulation, exceeding the speed limit by 50 km/h in an urban area can lead to the seizure of the license for 3 months.

„As much as the intentions of legislators are good, one cannot resist the impression that the new rules can prove difficult to execute,” write the lawyers from Pietrzak Sidor & Partners Law Firm (the commentary was published in Gazeta Finansowa at the end of May 2015).

„We should remember that criminal law, increasingly more severe, will not solve all the problems for us, including on our roads. Regard for wise law, which will be respected for that reason, can – in turn – help a lot,” comment advocates Małgorzata Mączka-Pacholak and Paweł Osik.

Maria Radziejowska graduated from the Faculty of Law and Administration at the University of Warsaw and the LL.M. programme of the University of Amsterdam. She has been an advocate trainee at the Warsaw Bar Association since 2014. She has gained professional experience, among others, at the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia. She has also cooperated with national institutions, including the Office of the Human Rights Defender and the Polish Institute of International Affairs (more information on Maria Radziejowska is available in “Team”).

“We are impressed with the passion and engagement with which Maria works. We are very happy that she joined our team,” says advocate Mikołaj Pietrzak.

Katarzyna Dąbrowska has cooperated with the Pietrzak Sidor & Partners Law Firm since 2012. She specialises in alternative dispute resolution methods, such as arbitration, mediation and negotiations.

Małgorzata Mączka-Pacholak has cooperated with the Pietrzak Sidor & Partners Law Firm since 2012. She specialises in criminal law and cases concerning human rights protection, including proceedings before the European Court of Human Rights in Strasburg and before the Constitutional Tribunal.

Kasia, Małgosia, please accept our sincere congratulations and best wishes of further professional successes!

At the request of the Helsinki Foundation for Human Rights, advocate Paweł Osik works on a case of students from Ostrowiec Świętokrzyski. Four years ago, the results on the chemistry maturity exam of more than 50 high school students in this town were annulled. The students were accused of cheating. “For those students, annulling the results of the exam had dire consequences. Without an opportunity to appeal this decision, the students were not able to apply for studies, and their plans for the upcoming years became unrealistic,” says advocate Paweł Osik.

According to advocate Paweł Osik, it should be a standard that students have the right to initiate a procedure of external verification of exam results. “It is the law maker’s obligation to take into account the fact that mistakes in assessment can occur and it is necessary to guarantee a procedure for questioning erroneous decisions,” advocate Paweł Osik stated.

Appealing against maturity exam results is made more difficult by the fact that the law, among others, does not create an opportunity to freely access exam documentation. In advocate Paweł Osik’s view, it is an odd situation. „As a defense counsel, I have access to, for example, confidential documents which have been gathered in the course of proceedings. Access to those documents is clearly regulated,” he says. “When it comes to appealing the results of the maturity exam, the situation is completely different. Students can only review their work, they cannot however take pictures or make notes,” advocate Paweł Osik explains.

In 2013, the group of students from Ostrowiec Świętokrzyski filed complaints with the Constitutional Tribunal. The case is pending. “Until now, the law makers have taken no action to introduce a procedure for appealing the results of the maturity exam. I hope that the Constitutional Tribunal will, as fast as possible, consider this problem and that the ruling will assess the unconstitutionality of those regulations,” says advocate Paweł Osik.

More details on the case of the students and the submitted constitutional complaint are available here.

While on his way home after work, Mr. P. suffered a major stroke. Police officers who intervened concluded that the man was under the influence of alcohol and called the City Guard to transport him to the sobering station.

During the intervention, the man was not tested with a breathalyzer because neither the Police nor the City Guard had one at their disposal at the time. As a result, the man was admitted to the sobering station which conducted a medical examination and called the ambulance four hours after Mr. P.’s admittance.

“While considering the appeal against Mr. P.’s arrest and admittance to the facility, the court stated that the man’s placement in a sobering station was unjustified, misguided, mistaken and carried at least a potential risk to his health and life,” says Irmina Pacho, a lawyer at the Helsinki Foundation for Human Rights (HFHR). The court also pointed to the insufficient supervision over the man’s stay in the station.

The court concluded that both the officers of the Police and the City Guard exercised due diligence. It further noticed that it was impossible to lay the blame on the officers for not noticing that Mr. P. was in need of immediate medical care and that it was necessary to transport him to the hospital instead of a sobering station.

„In its case-law, the European Court of Human Rights has multiple times noted that a state has a duty to protect arrested persons and persons deprived of liberty. This duty covers, among others, protection of health and provision of proper healthcare,” explains advocate Mikołaj Pietrzak who, at the request of HFHR, served as Mr. P.’s pro bono lawyer.

„An enhanced standard of protection should also apply to law enforcement officers in situations when they assess the health of persons transported to sobering stations,” advocate Mikołaj Pietrzak adds.

“In HFHR’s view, it is necessary to introduce proper procedures and provide adequate training in order to eliminate the risk of law enforcement officers’ making wrong decisions in the future, which could endanger somebody’s life or health,” Irmina Pacho adds. “Correct assessment of the man’s health and provision of medical care in the key moment just after the stroke could have limited the extent of internal damage.”

After Artur Ł.’s observation, expert witnesses assessed that he suffered from “a mental disorder which prevents him from recognising the meaning of his actions and from controlling his comportment.” Artur Ł. was released from detention in March 2013.

“This case shows how easy it is to abuse state power towards an individual under the guise of fighting terrorism,” says Mikołaj Pietrzak, one of Artur Ł.’s lawyers.

The media reported that even before the suspect’s apprehension, the ABW knew that he had experienced problems with social adaptation and had been a patient in a mental health clinic. As a result, the investigation was discontinued.

In their motion for compensation and in the proceedings before the court, Artur Ł.’s lawyers – advocate Mikołaj Pietrzak and advocate Kacper Florysiak – emphasised that the arrest had significant influence on his health and intensified the symptoms of his disorder.

The judgement is not final.

Artur Ł.’s lawyers filed an application with the European Court of Human Rights in which they allege a violation of the right to liberty and personal safety as well as an infringement of the right to a fair trial.

The Warsaw Pre-moot is an educational project simulating real arbitration proceedings. Students from European universities act as counsels for the parties and are assessed by lawyers who participate in arbitration proceedings on a daily basis.

“Each competition battle is considered by three arbitrators who behave in a manner similar to that in real arbitration proceedings, and who also have the right to ask questions to the participants,” explains advocate trainee Katarzyna Dąbrowska.

During this year’s Warsaw Pre-moot, its participants dealt with a problem which consisted in delivering the right amount of a rare mineral produced by one and distributed by the other party to the dispute. Other elements of the problem concerned the institution of an emergency arbitrator and a joinder of additional parties in arbitration proceedings pursuant to the ICC Rules of Arbitration.

“As in previous years also this year, the participants were prepared very well,” says legal advisor Artur Sidor. “The students not only knew the complexities of the case, but also of the relevant law,” he adds.

The arbitrators’ main task is to give feedback to participants in order to enable them to further develop their legal argumentation skills, taking into account the specificity of international arbitration proceedings.

The Warsaw Pre-moot is one of the competitions which prepare students for the final Willem C. Vis International Commercial Arbitration Moot which takes place every year in Vienna.

More information on the 7th Warsaw Pre-moot is available here.

In the July judgement, ECHR ruled that in the case of CIA prisoners a series of provisions of the European Convention on the Protection of Human Rights and Fundamental Freedoms had been violated, including the prohibition of torture, right to a fair trial and the right to liberty and security of person.

ECHR also held that the Polish pre-trial proceedings had been prolonged and ineffective. ECHR finally concluded that Poland had enabled detention and torture of both applicants.

“It is the Polish state’s responsibility to execute these judgements, which will entail, among others, conducting effective pre-trial proceedings,” says advocate Mikołaj Pietrzak who represeted Al Nashiri.

For more than seven years, the prosecution has been conducting pre-trial proceedings in this case. The proceedings have recently been prolonged yet again until 11 April 2015.

According to advocate Mikołaj Pietrzak, in the current situation “we can expect from the state that the facts established in the proceedings will be disclosed, so that the society can learn which state mechanisms had failed and where are the sources of such horrendous violations of rights and freedoms in the territory of Poland.”