COVID-19 survivor detained despite ill health, prevented from seeing his lawyers. Detention lifted thanks to HFHR’s brief

♦ The HFPC was approached by the counsel of a person detained on remand despite ill health, suffering from the consequences of hospitalization and severe COVID-19).

♦ The counsel emphasised that their client, who speaks only Italian, is unable to communicate any symptoms or abnormalities resulting from his ailments. At the same time, his access to a lawyer has been obstructed.

♦ The Foundation has submitted a brief related to the proceedings for the extension of man’s pre-trial detention.

♦ A court agreed to release the man from detention upon the provision of financial surety.

The suspect, whose defence lawyers contacted the Foundation, was arrested in January 2021 and has since been in pre-trial detention. A court that ordered the suspect’s detention recognised that his state of health should be monitored on an ongoing basis there were no compelling reasons against keeping the suspect in custody. The court decided that non-custodial preventive measures would not be sufficient to secure the proper course of proceedings.

The lawyers pointed to the possibly “fatal” consequences of depriving their client of access to appropriate medical care, given that he is a person recovering from a stroke, severe COVID-19 and diagnosed with bipolar affective disease, which symptoms are exacerbated by confinement. The risks are magnified by the fact that the suspect speaks only Italian and would therefore not be able to describe his symptoms accurately.

Moreover, the man faced difficulties in accessing and communicating with his lawyers. According to the lawyers’ letter, despite obtaining permission to visit the suspect and talk with him on the phone, a member of the defence team was able to contact the suspect a full 22 days after the start of his pre-trial detention. At the same time, the prosecution refused an Italian-speaking attorney, acting as a substitute for one of the defence lawyers, access to the suspect.

HFHR: deterioration of health in custody may constitute a violation of Article 3 ECHR and depriving a suspect of the opportunity to speak to a lawyer may harm the exercise of the suspect’s right to a defence.

In a brief, the HFHR pointed out if a court fails to take the suspect’s state of health into account when deciding on the application of a preventive measure and the suspect is not provided with access to appropriate medical care, this may lead to a violation of not only the suspect’s right to health protection but also the prohibition of torture, inhuman or degrading treatment or punishment. Although illness does not, in principle, rule out the possibility of detention in a penitentiary institution, because of the special situation of the detainee being subordinated to, and in the custody of, the state, the ECHR also gives rise to a specific responsibility on the part of the public authorities for the detainee’s state of health.

“If authorities decide to detain a person suffering from a medical condition, they must abide by the obligation to provide a sufficient level of care under conditions compatible with respect for human dignity” the HFHR stressed in its brief. “A manifestation of the implementation of the above guarantees in the Polish criminal process is the requirement to waive pre-trial detention if deprivation of liberty would pose a serious threat to the life or health of the suspect under art. 259 § 1 (1) of the Code of Criminal Procedure”.

The Foundation also referred to problems with access to a lawyer. In this respect, the HFHR drew attention to Directive 2013/48/EU on Access to a lawyer, according to which Article 3 (2) (c) of the suspect has the right of access to a lawyer without undue delay, in particular, after deprivation of liberty. At the same time, as the suspect has been deprived of the possibility of contacting a lawyer who speaks a language he understands, the Foundation stressed that “the State must ensure that the suspect has the right to a defence lawyer in such a timely and effective manner as to allow the suspect to exercise their right to a defence. Undoubtedly, depriving a suspect of an opportunity to speak to a lawyer, either in person or on the phone, may hurt the ‘genuine and effective’ exercise of the suspect’s fundamental right to a defence.”

The brief was drafted as part of Covid 19 – Criminal Justice Campaign, a project coordinated by Fair Trials International.