HFHR on Marcin D.’s detention

The Regional Court in Kraków has dismissed Marcin D.’s attorney complaint against pre-trial detention order issued against his client. Following D.’s arrest in late August, a court ordered his conditional pre-trial detention, setting financial surety as the alternative remand measure. Despite the surety having been paid, Marcin D. still remains in detention. According to the HFHR, this is illegal.

“This is not a new situation for us. We’ve been dealing with similar cases before”, the Foundation’s lawyer Piotr Kubaszewski says. “Two years ago, a court in Nowy Sącz ordered pre-trial detention of a defendant and also set some amount of financial surety. The defendant paid the required surety but nonetheless remained in jail. In our opinion, pre-trial detention is exhausted upon the payment of surety”, Mr Kubaszewski adds.

In a brief submitted for the court’s consideration, the Helsinki Foundation explains that “upon the submission of financial surety, conditional pre-trial detention transforms into financial surety, which is governed exclusively by the provisions applicable to this preventive measure. At the same time the original measure – pre-trial detention – ceases to apply.”

The Minister of Justice acknowledged the HFHR’s opinion. In a letter to the Human Rights Defender, the Ministry of Justice noted that “the provision of financial surety within a deadline set by a court results in the replacement of the applied custodial measure (pre-trial detention) for a non-custodial measure (surety) and obliges the court to immediately release the defendant from a detention centre. Therefore the payment of surety results in a change in a defendant’s status: they are no longer in pre-trial detention, but on remand with surety set.”

“Notably, upon the payment of financial surety, any further application of pre-trial detention against a given person becomes illegal and provides a cause of action for compensation”, Piotr Kubaszewski says.