Polish pre-trial detention practice still far from perfect

“Poland still faces serious challenges with respect to pre-trial detention,” says the report on pre-trial detention (PTD) prepared by the Helsinki Foundation for Human Rights.

The report “The Practice of Pre-trial detention: Monitoring Alternatives and Judicial Decision-making in Poland” is one of 10 country reports outlining the findings of the EU-funded research project conducted in 10 different EU Member States in 2014-2015 and coordinated by Fair Trials International. Data was obtained through analysis of literature and statistics on PTD, monitoring of PTD hearings, analysis of case files, surveying defence lawyers and interviewing judges and prosecutors. In the course of the Polish research, 4 PTD hearings were observed, 70 case files analysed, 24 defence lawyers surveyed, and 9 judges and 7 prosecutors interviewed.

The research showed that the defendant, if not in hiding or otherwise unavailable to the justice system, is present at the first PTD hearing. “Unfortunately, the defendant is not always present at other pre-trial detention hearings, especially if he has been appointed a lawyer,” says advocate Katarzyna Wiśniewska, coordinator of the Polish research. “This is why we recommend that the legislator should introduce a provision on the defendant’s obligatory presence at all pre-trial detention hearings,” she adds.

Three grounds for pre-trial detention are the most common – the risk of perverting the course of justice, the risk of absconding and the fact that a severe penalty may be imposed on the suspect. “The abuse of severe punishment as a reason for detention is worrying. The provisions in this respect will be examined by the Constitutional Tribunal thanks to the motion submitted by the Polish Commissioner for Human Rights,” explains Joanna Smętek, researcher on the project.

The study showed that rationales of decisions on PTD are often formulaic and not tailored to the specific case, repeating the arguments raised by the prosecution. As advocate Katarzyna Wiśniewska notes, “surveyed defence practitioners complained of the automatism and superficiality of judicial decisions, which lack proper justifications based on the facts of the case.” The same charge also concerns the review process. The case file analysis confirmed that courts of higher instance rarely change the decisions of lower level courts, and the decisions of higher level courts often repeat previous ones.

The conducted research and official statistics revealed that police supervision and money bail are the most commonly used non-custodial, preventive measures. At the same time, the interviewed judges and prosecutors do not perceive non-custodial preventive measures as effective and trustworthy alternatives to PTD. “It seems that judicial consideration of alternatives to detention is limited to a single-sentence argument that such alternatives would not protect the integrity of the proceedings,” observes Joanna Smętek.

“In the report, we recommend, among others, that the legislator should introduce a maximum period of pre-trial detention. We also see the need to provide obligatory legal representation in cases where a prosecutor requests pre-trial detention or alternatives to detention,” says Piotr Kładoczny, secretary of HFHR’s Board. “It would, at this stage, be beneficial if the legislator considered adding new preventive measures, such home detention and electronic monitoring, into the Code of Criminal Procedure,” he adds.

The full report is available here.