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Should electronic tagging abroad reduce penalties imposed in Poland?

The Helsinki Foundation requested the Minister of Justice to resolve the issue of calculating periods of electronic tagging used in connection with European Arrest Warrants.
The legislative amendment that introduced electronic tagging as one of the forms of the penalty of deprivation of liberty entered into force on 15 April 2016 and this should be an excellent occasion for presenting a comprehensive explanation of the problem.

Pursuant to the current wording of the Code of Criminal Procedure, the length of a convicted person’s term of deprivation of liberty is reduced by the period they actually were deprived of liberty prior to their transfer to Poland under a European Arrest Warrant. The above statutory wording causes confusion and controversy in the judicial practice and may result in unfair treatment. In its statement sent to the Minister, the HFHR cites two separate court decisions that call for addressing the legal situation of Polish citizens subject to electronic tagging measures abroad. Individuals and lawyers have on many occasions informed the HFHR about problems relating to the practical interpretation of law in this area.

“In many countries such as the UK, Portugal or France there are preventive measures that involve the use of electronic monitoring. Such solutions do not exist in Poland, which causes interpretative problems at the moment of a person’s transfer to Poland under an EAW”, says the HFHR’s lawyer Katarzyna Wiśniewska.

Under the newly enacted law, electronic tagging may also be used as a mode of enforcing a prison sentence. “Since Polish criminal process does not know any preventive measure that would be similar to electronic tagging used in other jurisdictions, and employs electronic tagging only as a type of a custodial penalty, then we should assume that period of ‘preventive’ tagging should be credited towards the length of the imposed sentence”, says Artur Pietryka, an attorney working with the HFHR. Only this approach should be considered reasonable and correct from the perspective of the Polish legal system.

The scale of the problem is substantial: in 2015 alone, courts issued more than 1600 orders based on the procedural rules on the European Arrest Warrant.

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