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HFHR gives its opinion on the draft amendment to the Code of Criminal Procedure

The Helsinki Foundation presented the Minister of Justice with an opinion on the draft law amending the Code of Criminal Procedure, dated 5 June 2012. The project in its current shape is designed to significantly modify the essence of criminal litigation. So far, the court has played a key role in criminal evidentiary proceedings. However, the draft amendment places the burden of going forward with evidence onto the parties to the proceedings.

“In principle, our assessment of the reform is positive”, says Barbara Grabowska, a lawyer with the HFHR. “Yet the proposed solutions will be effective only if appropriate changes are introduced into the structure of the prosecution service. Also, a robust free legal aid scheme needs to be put in place”, explains Ms Grabowska.

Considering the above caveats, the HFHR doubts if the proposed expansion of the discretion given to the parties to criminal proceedings will, in fact, result in streamlining the process and finding “the substantive truth” in a case.

The draft amendment also modifies the rules of pre-trial detention. The Criminal Law Codification Commission, the author of the bill, maintained the currently existing de-facto presumption that a person suspected of committing an offence carrying a severe penalty automatically presents a risk of obstructing justice (as confirmed by the Supreme Court in January this year). The HFHR is concerned that such regulations may in practice expand the automatism of applying the most severe preventive measure.

Furthermore, the draft amendment provides that several types of court hearings, including those relating to pre-trial detention, are to be held in private. “This proposal raises serious constitutional doubts”, notes Barbara Grabowska.

The HFHR’s opinion provides a positive response to the proposed modifications of the rules governing access to records of pre-trial investigation. According to the draft law, suspects and their counsel will be given unconditional access to case records that contain materials in support of the prosecution’s motion for applying or extending pre-trial detention.

Moreover, the draft amendment imposes on judges a duty to base the ruling on applying or extending pre-trial detention solely on the materials made available for the suspect or their counsel. “The both changes are in line with the standards set out by the Constitution and ECtHR’s case law because they safeguard the equality of arms principle and the effective right to defence in criminal process”, reads the opinion.

The draft does not modify the catalogue of entities eligible for the status of “an aggrieved party”. The HFHR suggests that upon a detailed review of the case records the court should be able to award the aggrieved party status to persons suffering negative consequences of a crime against the common good. The Foundation fears that the substantive definition of the aggrieved party, as accepted in the jurisprudence and legal doctrine, may result in an infringement of individuals’ right to have their case heard by a court.

Also, the HFHR’s opinion proposed to introduce another ground for the refusal of extradition, namely the fact that a prosecuted person has the refugee status awarded to them in Poland or other EU Member State. “In extradition cases brought against persons who have been awarded the refugee status in one of the EU countries, Polish courts fail to take such a status into account as a ground for refusing extradition. Hence, there is a need to explicitly put this element on a statutory footing”, says Jacek Białas, member of the HFHR legal team.

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