Attorney at law with detainee from the beginning

plpolski (Polish)

Detention of an individual is one of the coercive measures. Regardless of the method and the basis of detention, each time it is combined with stress accompanying the detainee. This is due to the fact that it usually occurs unexpectedly. In addition, sometimes it is also unjustified. In such cases, it is invaluable to contact an attorney, who is able to guide the detainee through it. They can also assess legality and legitimacy of the detention. Currently, a detainee has the right to make contact with a lawyer or legal counsel. The problem arises when the detainee does not have the number to any of the above-mentioned persons or does not know any qualified lawyer at all. The solution would be being able to appoint an ex officio legal counsel from the beginning of detention.

Possible solution

The Supreme Bar Council (NRA) pass a resolution which offers a solution. They filed a petition in the public interest regarding the amendment of Article 245 of the Criminal Procedure Code.

The draft amendments envisage the possibility of contacting an ex officio attorney even before the procedural activities involving a detainee. At the same time, the draft assumes the appropriate application of the provisions on the right to a public defender. A person applying for a professional ex officio attorney at the detention stage cannot have a previously appointed attorney.  They would also have to demonstrate they are unable to bear the costs of appointing a lawyer without financial detriment. The way to do it would be by submitting an appropriate declaration.

The petition assumes that the appointment of an attorney to take part in activities with the detainee would be made by the president or the court registrar of the district court in whose district the proceedings are conducted. In urgent cases, this could also be done by another district court.

The direction of the above changes should be viewed positively. Presence of a legal counsel with the detainee would allow them to be more calm. The legality and legitimacy of the detention could also be examined by a professional attorney. In addition, they would have the opportunity to familiarise themselves with the evidence, even before the questioning takes place. Furthermore, immediate contact between the defence counsel and the detainee would enable the development of an effective procedural strategy at the very first procedural step involving the detainee.

Concerns about the proposal

Nevertheless, there are some concerns about the proposal. The first concerns the time within which the appointment of an ex officio solicitor or attorney would take place. This issue is not regulated in the petition submitted by the NRA. A time limit for the examination of a motion for the appointment of an attorney ex officio should be added. It should be specified that the examination of the motion should take place immediately. As mentioned above, the competence in this respect would be vested in the president or court clerk of the court in whose district the proceedings are pending.

It is also dubious whether conditioning the right to a legal counsel ex officio on the income criterion is justified. It is a restriction that is contolled by the person who examines the application for a legal counsel ex officio. Even when only the detainee’s statement is subject to review. Nevertheless, the changes proposed by the NRA should be assessed unequivocally positively, in particular their direction.

Notwithstanding the above, it is always a good idea to carry a business card or a piece of paper with the telephone number of a professional attorney. This should ensure their presence during detention proceedings.

The full article is available in Polish here.

plpolski (Polish)

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