Maciej Bulanda

A conference of errors

On 24 June 2010 the Institute of Criminal Law at the University of Warsaw hosted a conference entitled “Judicial Errors in Criminal Proceedings.”

The instigator of the conference was Maria Ejchart, coordinator of the “Innocence” Legal Clinic at the Helsinki Foundation for Human Rights. Defence counsel, prosecutors, judges and law students met to discuss causes and effects of judicial errors. Topics addressed included the role and significance of perjured testimony, defective identification of suspects, and the institution of the crown witness. Another panel concerned prevention of errors and state liability when an error is discovered.

One of the presentations was devoted to use of DNA analysis at the investigative stage of a criminal proceeding. According to Anna Polak, a student at the University of Warsaw, genetic material may prove to be insurmountable evidence in a proceeding. Research showed that DNA analysis has allowed for an increase in detection rates by nearly 30%.

DNA analysis was first admitted by courts in the United States in the late 1980s. Nearly a decade later, in 1997, the European Union recommended to member states that they create a DNA database, which could revolutionise criminal law, as comparative analysis is particularly valuable when using DNA evidence.

Poland also has a genetic database, a phenomenon that is observed closely by lawyers from the Helsinki Foundation for Human Rights. A database of this type creates a risk of violation of the right to privacy, as the European Court of Human Rights has found. The court held that data of this type may not be retained indefinitely. In Poland the retention period is from 20 to 30 years.

Although a person’s genetic profile is unique (only identical twins share the same genetic material), use of DNA analysis as evidence may also lead to errors. During the course of analysis and processing there is a high risk of contamination by another person’s DNA. Thus it is necessary to establish quality controls and work only with certified laboratories.

Judicial errors happen in every system, and the last session focussed on the issue of liability for errors. Under Polish law, two types of claims may be asserted, for damages and for compensation. The financial responsibility is borne by the State Treasury in such cases.

As pointed out by Łukasz Chojniak, a doctoral student at the university’s Faculty of Law and Administration, the lack of a uniform scale for compensation results in a significant level of discretion in the damages awarded by the courts. It is also difficult to analyse this issue precisely because the Polish Ministry of Justice does not maintain statistics for cases of wrongful conviction. The ministry maintains statistics only for the amounts paid out to claimants, and since last year these are also broken down into damages and compensation.

The point at which the State Treasury should pay for a judicial error is also debatable. Some argued that filing of incorrect charges and an unwarranted indictment should be grounds for payment of damages. This approach would be based on the presumption of innocence.

Dr Maria Rogacka-Rzewnicka, a professor at the Institute of Criminal Law at the University of Warsaw, took the view that personal liability for errors should be considered. But, as pointed out by a regional court judge from Ostrołęka who was attending the conference, the Polish Constitution does not allow this because of the strong principle of judicial independence within the Polish legal system.

The heated debate demonstrated that the issue of judicial errors is of great importance to the legal community. One thing that everyone seemed to agree on is that the goal is avoiding errors, not changing the law because of the fact that errors do occur.