Access to lawyer still ineffective in Poland, says HFHR report

The Helsinki Foundation for Human Rights has prepared the report entitled On the (in)accessible access to an attorney (Polish title: O (nie)dostępnym dostępie do adwokata). The purpose of this report is to present the status of implementation of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings.

“27 November 2016 was the deadline for the implementation of all provisions of the directive. On the anniversary of this date, we decided to create a report in which we try to assess which of the directive’s provisions have been implemented in Poland”, HFHR lawyer Katarzyna Wiśniewska says. “Notably, this is another EU directive that attempts at enhancing and standardising the procedural guarantees for defendants and suspects”, Ms Wiśniewska points out.

The Access to Lawyer Directive aims to ensure certain minimum standards for all EU member states, above all in respect of the right to a defence. “There is not a shred of doubt that the provision of access to a lawyer to arrested persons at the very outset of criminal proceedings may ensure the proper course of the proceedings and afford suspects or defendants all the procedural guarantees available under international and domestic law”, explains Dr Piotr Kładoczny, Secretary of the HFHR Board. He adds: “It is also worth remembering that a lawyer present during the arrest may be a guarantor able to mitigate the risk of inhuman and degrading treatment”.

The Ministry of Justice has announced that the Access to Lawyer Directive had been fully implemented to the Polish law. However, as the report’s findings suggest, domestic regulations fail to reasonably comply with the EU standard.

Although the law enables arrestees to immediately contact an attorney or a lawyer, such contact is often prevented by law enforcement authorities. “Neither law enforcement bodies nor courts provide any guidance that would help suspects or defendants to instruct a defence lawyer; only those arrestees who have a phone number to a lawyer on their persons are in a better position”, notes Adam Klepczyński, a lawyer working for the HFHR. “In our report, we called on the Polish state to ensure that lists of criminal defence lawyers are accessible in all police stations and courts. Furthermore, we think that the introduction of duty defence lawyers, capable of assisting arrestees on short notice, is an idea worth considering”, Mr Klepczyński adds.