Amendment to Code of Criminal Procedure: HFHR issues opinion

A new reform of the criminal process, which is set to happen only a year after the last amendment came into force, is likely to violate a constitutional value, namely the certainty of law ¬- reads today’s opinion statement of the Helsinki Foundation sent to the Sejm.

An amendment to the Code of Criminal Procedure became effective in July 2015, after more than three years of legislative works. It introduced the model of adversarial proceedings. In this model, a judge’s involvement in the proceedings is limited and the parties’ role is expanded (for more information, follow this link). Now, a new proposal of changes to the criminal procedure has been presented and sent to a Sejm committee. In a nutshell, the new law is to restore the model of inquisitorial proceedings.

In its opinion, the HFHR has positively assessed the proposed amendments that seek to limit the use of the means of “negotiated justice”, namely the motion for conviction without a trial or voluntary submission to a penalty. The Foundation also approved the proposed revocation of Article 59a of the Criminal Code that enabled victims to request the discontinuation of criminal proceedings against perpetrators of certain misdemeanours.

“The draft of the new amendment abolishes the provision that prohibited the use of the so-called ‘fruit of the poisonous tree’, or evidence illegally obtained for the purposes of criminal proceedings, in court”, says Dr Piotr Kładoczny, Secretary of the HFHR’s Board. “In our opinion, the revocation of this provision should be assessed negatively. The obligation to introduce a regulation that would prohibit the use of the ‘fruit of the poisonous tree’ results from many sources, including the jurisprudence of the ECtHR”, Dr Kładoczny adds.

Unfortunately, the proposed amendment limits the scope of compensatory liability for judicial errors. According to the HFHR, the proposed regulation will prevent parties from asserting compensation for losses sustained in criminal proceedings due to the illegal application of penal measures such as disqualification from a profession or a prohibition of driving vehicles, which can sometimes be more onerous for an individual than the main penalty itself. Furthermore, if the amendment becomes law, compensation for illegitimate use of the procedural coercive measures other than detention will be available only as a civil remedy.

The HFHR is also concerned about the amendment’s compliance with the law of the European Union. Some of the proposed changes regarding the rules governing access to case files of pre trial investigation contravenes the EU Directive on access to information in criminal proceedings. “The directive introduces an absolute obligation to provide access to the documents held in the custody of competent law enforcement authorities that are of material significance to a suspect’s ability to challenge the legality of their detention or arrest”, HFHR’s lawyer Joanna Smętek explains.