CYIL vol. 10 (2019)

DALIBOR JÍLEK CYIL 10 ȍ2019Ȏ A norm embodied in section 93 invokes formal equality before the Code. Equality is not conceived in a descriptive but prescriptive way. Every child should be treated equally. Equality does not signify identity. Indeed, serious circumstances require different treatment of the child, where necessary. The treatment mentioned had to be objectively and reasonably justified in relation to specific circumstances. Based on this standard, the court takes into account the excessive clemency and condescension of other children. Such a collective behaviour spoiled the wrongdoer. 29 Despite these grave facts the courts forgives them. The following two rules impose forgiveness when a friend or closest relative, such as a sister and brother, intervenes in the proceedings to support the wrongdoer. 30 Favorable intervention can be perceived as an act of love and affection for the child’s personality. However, according to section 95, a judge may intervene in favor of the child, which is an authoritative intervention. 31 It could also be their friend, who, otherwise in the judicial position, should maintain independence and impartiality of the decision-making. Still, such affinity does not have to be applicable in reality. It only takes one voice among the judges to insist on forgiving the wrongdoer. Therefore, the court forgives the child. The last provision governs the right of the accused to remain silent. The child does not want to say what could justify their misconduct. Silence may not burden the wrongdoer. Therefore, the court forgives the silent child. 32 Institutional forgiveness pursues both interpersonal and intrapersonal purposes. In a dormitory, children should act friendly towards each other, cooperate and communicate without bickering. Forgiveness purposefully directs children towards pro-social, mutually friendly conducts. Specifically, forgiveness returns the victim and the wrongdoer into a situation that existed ante delictum . Moreover, forgiveness is an intrapersonal process of overcoming anger, giving up negative feelings towards the wrongdoer. Forgiveness offers the culprit at least partial reconciliation and settlement of the dyadic relationship. It also helps to clarify the relationships between the children involved. Education and upbringing determined by love for children relies heavily on forgiveness. Korczak does not want to have resentful children in the dormitory. 3.3 Other consequences Forgiveness customarily excludes punishment. With the free act of forgiveness, the victim gives up the punishment of the wrongdoer. However, the court is obliged to forgive, even if the child had been punished for their wrongdoing. The Code valid in the dormitory does not permit a collision between forgiveness and punishment. If the victim or the court do not forgive the wrongdoer, the Court of Peers imposes a consequence, which, with some exceptions, is not a genuine punishment but rather an act affecting the child’s emotions. At school, it is the teacher who holds all the power in the class, as does the educator in a dormitory. Normally, they both have an indivisible power of punishment. Both may suppress unwanted individual or collective behavior and impose restrictions on children for it. The Code authorizes the court to make decisions on the consequences of wrongdoings and 29 Ibidem : “Sąd przebacza A, bo uważa, że zepsuła go zbytnia życzliwość ze strony wszystkich; sąd ostrzega A, że wszyscy są równi wobec prawa.” 30 Ibidem : “Sąd uwzględnia gorącą prośbę przyjaciela (brata, siostry) i przebacza A.” 31 Ibidem , p. 187: “Sąd przebacza A, bo był wśród sędziów głos, który się tego uparcie domagał.” 32 Ibidem : “Sąd przebacza A, bo a nie chce powiedzieć tego, co mogłoby mu służyć za usprawiedliwienie.”

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