Defence lawyer removed from client’s interview: HFHR intervenes

The HFHR has been approached by a criminal defence attorney who claims to have been removed from a client’s interview by a prosecutor for no apparent cause.  

Interview without defence lawyer

According to the attorney’s account of events, she wanted to participate in an interview of her client that took place at the end of August. However, upon presentation the attorney’s credentials, a prosecutor asked her to leave the office used as an interview room. The prosecutor claimed that the attorney would be heard as a witness in the client’s case so she could not represent the client. Apart from the above, the prosecutor gave no specific justification for her request. The attorney has inquired about the situation in a conversation with a Deputy Prosecutor General, but, according to her account, he was unable to explain the conduct of his subordinate.

Call to Prosecutor General

The HFHR has notified the Prosecutor General of the incident in a letter. The letter emphasised that the situation violated the right to a defence, a basic principle of the criminal process and a guarantee of constitutional law and international law. According to the letter, the right to a defence is an elementary standard of a democratic state ruled by law and a foundation of the fair criminal process.

The HFHR asked the Prosecutor General to explain the situation and provide a legal basis for the prosecutor’s decision. “We hope that this kind of action, which involves restricting citizens’ constitutional rights, is an isolated and random incident”, the HFHR wrote in the letter.

ECtHR: absence of lawyer at interview may be proof of unfair process

In the letter to the Prosecutor General, the HFHR quoted decisions of the European Court of Human Rights, which has many times reiterated that the right to assistance of a defence lawyer should be guaranteed from the very outset of proceedings, in all types of cases, and that a suspect’s contact with a defence lawyer cannot in any way be restricted. As the ECtHR pointed out, the presence of a defence lawyer during initial questioning is crucial for the defence case and a failure to ensure a lawyer’s attendance at a suspect’s hearing may ultimately cause a major violation of the right to a fair trial and lead to the invalidation of the entire proceedings in a case.

“The fundamental responsibility of a defence lawyer at the pre-trial stage of criminal proceedings is to ensure that the prosecution acts lawfully. It is thus important for a suspect or a defendant to have effective legal representation provided by their defence lawyer from the very outset of the proceedings. This means that an attorney or legal counsellor must be guaranteed the right to participate in all acts of the proceedings”, said HFHR’s lawyer Maciej Kalisz.