Supreme Court: the risk of a severe sanction is an independent, special prerequisite for pre-trial detention

In October 2011, the Human Rights Defender (RPO) moved the Supreme Court requesting the Court’s opinion on the legal question regarding Article 258(2) of the Code of Criminal Procedure. The RPO had doubts as to whether this regulation stipulated an independent special prerequisite for applying pre-trial detention and thereby allowed for an automatic assumption that a suspect of a crime that carries a severe penalty would hinder the criminal proceedings.

‘During our work for the HFHR “Innocence” Law Clinic and the  Legal Intervention Programme we often encounter a situation where a pre-trial detention order is based on the mere fact that the alleged offence is classified as a felony or carries a penalty of imprisonment from e.g. 2 to 12 years’, says Piotr Kubaszewski, a HFHR lawyer.

‘According to our experience, the final sentence imposed in such cases is rarely more than half of the statutory menace stipulated for a given crime. This state of things is also reflected in the statistics of the Ministry of Justice’, adds Katarzyna Wiśniewska, a HFHR lawyer.

The European Court of Human Rights often stresses the preventive aspect of pre-trial detention. In cases G.K. v. Poland (38816/97, § 83-85) and J.G. v. Poland (36258/97, § 52-54) the ECtHR highlighted that in deciding whether a person should be detained pending trial authorities cannot automatically refer to the risk of the suspect obstructing the course of the trial without first explaining how the absence of the pre-trial detention may lead to the suspect tampering with evidence or otherwise upsetting the proper conduct of the trial.

The Supreme Court ruled differently. It found that grounds for imposing pre-trial detention as laid down in Article 258(2) of the Code of Criminal Procedure constitute independent, special prerequisites for applying this preventive measure, provided that other conditions set out in Articles 249(1) and 257(1) of the Code are met and there are no negative criteria specified in Article 259 of the Code.

The Helsinki Foundation for Human Rights submitted an amicus curiae brief in the case.