Any suspect or accused in the criminal proceedings has the right to be assisted by a defence attorney. A defence lawyer in criminal proceedings may only be an advocate or an attorney-at-law. The provisions of the Code of Criminal Procedure also stipulate that a suspect or defendant in a single proceeding has the right to have up to three defence attorneys at the same time. It’s also applies to a detainee.
The rule is that defence attorney is appointed by the accuseds or suspects themselves. The situation of a detainee does not allow him to appoint a defence attorney on his own. That is of course due to his isolation from society. In such a situation, a defence attorney for a detainee on a conditional basis can be established by someone else. The conditionality of such a defence relationship is that it is necessary for it to be confirmed by the suspect. The confirmation must take place at the first action or contact with the chosen lawyer. A defence attorney for a detainee can be appointed for him by any other person. The provisions of the Code of Criminal Procedure do not provide any restrictions in this regard.
Supreme Court’s ruling concering appointing a defence attorney
However, the Supreme Court in its jurisprudence indicates that another person may appoint only one defence lawyer for a detainee. Moreover that is only if they have not previously appointed a lawyer for themselves or confirmed the PoA. (Supreme Court decision of May 11, 2017, WZ 6/17, LEX No. 2309633, available in Polish here). This ruling, however, is criticized in the doctrine as significantly limiting the constitutional right of detainees of executing defence.
The Supreme Court decision results in the fact that a prosecutor or court may not allow a defence lawyer conditionally appointed by another person to participate in the case, if the detainee already has a defence attorney in the case. Thus – unless we are not aware of the jurisprudential practice of the authority in question – the second defence lawyer must first obtain a substitution power of attorney from the first defence lawyer, and then, when visiting the detainee, obtain appointment from him in order to be guaranteed admission to the case.
Full article is available in Polish here.
