Case of Tomasz Komenda: time for reflection

The Helsinki Foundation for Human Rights has welcomed with satisfaction today’s judgment of the Supreme Court in which the Court acquitted Tomasz Komenda on all counts. In the opinion of the HFHR, this case should give rise to reflection and lead to conclusions that would reduce the future risk of unjust convictions. 

What needs to be changed so that innocent persons are not convicted in criminal cases?

In its position statement, the HFHR observes that the extent of the phenomenon of unjust convictions in Poland is still unknown. Cases of criminal defendants finally convicted and later acquitted appear with an annual frequency, give or take, which shows that they are not as rare as we would like them to be.

Given the above, the HFHR urges the authorities of the Republic of Poland to take notice of the problem of unjust convictions and address this problem accordingly. According to the Foundation, the justice system should be organised in a way that minimises the risk of unjust convictions. The criminal justice system should be able to identify unjust convictions and ultimately redress any harm caused by such convictions.

Immediate post-arrest access to defence lawyer

Those goals can be attained, the HFHR argues, by the strengthening and development of the procedural guarantees afforded to criminal suspects, and in particular by providing the suspects with more effective access to counsel already at the arrest stage of criminal proceedings.

New approach to criminal lawmaking needed

Another thing that needs to be changed is the way in which criminal law is legislated. The HFHR suggests abandoning the long-used penal populism and advocacies the adoption of the model of legislation based on a diagnosis of needs and legislative impact assessment. A Criminal Law Codification Commission should also be appointed so that experts are involved in the process of criminal lawmaking.

Mode of expert witnesses appointments

Legal regulations on the appointment of expert witnesses should also be amended. The HFHR calls for the adoption of a law that would establish a comprehensive set of requirements that prospective expert witnesses should meet in order to be officially appointed. This law should also set out a procedure of assessing their professionalism and certifying specialist institutions that submit expert reports in criminal proceedings.

Reinstatement of criminal proceedings – universally accessible remedy in uncertain cases?

Another aspect that needs to be analysed is the current system of reinstating criminal proceedings. It is necessary to answer the question about whether this system is able to ensure that a criminal case can be reopened in all cases in which there are reasonable doubts as to the accused’s guilt. The HFHR suggests that the issue may be remedied by the proposal of the Commissioner for Human Rights, who proposed to appoint an independent advisory and consultative body specialising in unjust convictions.

As the HFHR notes, cases of unjust convictions of innocent persons should be extensively reviewed by law enforcement authorities, and specifically by prosecutors of non-military prosecutor’s offices. The HFHR is convinced that that approach would contribute to the better implementation of a key objective of the prosecution service, namely the safeguarding of the rule of law, which would, in turn, increase public confidence in this institution and decrease the number of unjustly convicted persons serving their sentences in prisons. The case of Tomasz Komenda shows that such an attitude change is possible.