Report ‘Non-custodial preventive measures’

Courts and prosecutors still do not use non-custodial preventive measures often enough, says the joint report by the Helsinki Foundation for Human Rights, the Forum of Civic Development and the Polish Business Roundtable drafted as part of the ‘Better Justice System’ project.

The ‘Non-custodial preventive measures’ report examines the practical application of such measures as surety, duty to report to local police, prohibition to leave the country or suspension from work in criminal proceedings. The authors of the report compared the use of these measures and pre-trial detention in the judicial practice of Polish courts.

They took the view that despite the ongoing changes Polish judicial and prosecutorial authorities still demonstrate an excessively instrumental approach to pre-trial detention. ‘The most significant reduction in the number of persons detained pending trial was recorded at the end of 2007 and early 2008’, says Katarzyna Wiśniewska, co-author of the report. ‘However, since 2008 the figure has been retained at the same level, averaging 9,000 persons annually’.

The authors believe that in applying pre-trial detention courts should take into account the recommendations of the European Court of Human Rights. In its judgements entered in cases against Poland the ECHR has many times highlighted that national authorities should first consider imposing one of non-custodial measures before they move on to the more restrictive remedies.

For example, in 2010 district courts issued almost 19,000 orders for pre-trial detention. At the same time, they entered 7,000 orders for surety, 66 orders for guarantee made by a trustworthy person and only 2 orders for guarantee made by an employer or a public-trust institution.

The majority of the attorneys surveyed by the authors of the report said that such a low number of guarantee orders reflected the state authorities’ distrust of citizens and weak social bonds.

Another issue is a question of not homogeneous practice of applying the measures in question. In the first half of 2010 the district courts of the Kielce circuit imposed 735 orders for surety whereas in the Zamość judicial circuit this measure was applied only once.

The Report contains statements of judges, prosecutors and attorneys on the practical application of the provisions governing non-custodial measures. ‘The Report gives readers a vivid and up-to-date picture of the non-custodial measures application in Poland’, said Prof. Włodzimierz Wróbel in his review of the report.

The authors recommend to amend the provisions of the Criminal Procedure Code allowing for imposition of the pre-trial detention on suspects facing potential severe penalties. ‘We believe that such an amendment would force courts and prosecutors to more often apply non-custodial preventive measures’, says Adam Bodnar, HFHR legal expert.

‘At the same time we strongly recommend that non-custodial measures be applied jointly’, says Dominika Gmerek, co-author of the Report. According to Ms Gmerek, such a practice would better secure the course of justice, and the courts would not have to resort to pre-trial detention as often as today.