The possibility of applying pre-trial detention is conditioned by the simultaneous occurrence of the general condition and the so-called specific reasons. The general premise is the evidence collected in the case showing a high probability that the suspect has committed the alleged act. It is indicated that the probability of the suspect committing the alleged offenses must even “border on certainty”, which is confirmed by both the adopted jurisprudence and the views of the doctrine.
Although in practice a certain problem may be observed, which is that both in the applications for pre-trial detention and subsequently also in the decisions of the Court on this point, there is no reference to evidence that would imply the conclusion that there was such a probability, and to a large extent. Moreover, often, on the grounds of the above conclusions or decisions show that in fact the only evidence relating to the alleged commission of a criminal act by a suspect is the explanations of another suspect in a given case.
Standards for assessing the credibility of libel evidence developed in jurisprudence
Therefore, we are dealing here with the so-called slander of the co-suspect, which “can be considered as full-fledged evidence only if, in the context of specific findings, it does not contradict other evidence, and above all does not report different versions of the same event” (see S. Steinborn, Code of Criminal Procedure. Commentary on selected regulations, LEX / el. 2016).
Due to the fact that the evidence of the co-suspect’s slander comes from a person
Who is most interested in the result of the case, “requires above-average diligence in its conduct and evaluation” (judgment of SA in Łódź of May 20, 2014, II AKa 51/14, LEX no. 1493764). In the jurisprudence, standards have been developed for the assessment of libel evidence (see, for example, judgment of SA in Kraków of November 24, 2011, II AKa 189/11, KZS 2012, item 2, item 39). Referring them to the situations that can be observed in practice, it is worth emphasizing that a reliable and thorough analysis of explanations often leads to the conclusion that we are dealing with the lack of fulfilment of these conditions, because often:
Information provided by a co-suspect is not confirmed by a given suspect, and they are also contradicted by the explanations provided by, for example, other suspects and testimonies of witnesses.
Regarding the role of the suspected slander, no other evidence, including any of the persons interviewed in the case, is corroborated.
The circumstances cited do not confirm in any way that the defendant was aware of committing prohibited acts.
The explanations cannot be considered spontaneous due to the fact that, for example, a few years after the occurrence of the events described by the co-suspect, constitute the most favourable, previously prepared version of the events for this person.
They come from a person who is not impartial because it is in their obvious interest to burden others to make their role in the criminal act as insignificant as possible. The explanations of the co-suspect are clearly aimed at emphasizing the leading role of other people in the allegedly committed prohibited acts, while minimizing their own role.
The explanations do not seem to correspond to reality in any way, and above all, they are inconsistent and contain information that is inconsistent with the facts of the case.
In this context, it is worth bearing in mind that very often such explanations are submitted by a co-suspect who, “in exchange” for the burden of other suspects in the case, concludes an agreement with the procedural authority, for example within the institution under Art. 335 of the CCP The agreement often concerns not only, as can be seen from the provision cited, “to agree to penalties or other measures provided for the alleged offense”. In practice, preferential conditions for this co-suspect also apply to, inter alia, failure of the Prosecutor’s Office to
Evidence of slander of a co-suspect in law enforcement practice
In practice, therefore, it is important to verify whether the explanations of the accusing co-suspect really meet the requirements for such explanations in an exhaustive manner, in order to consider them credible and capable of providing evidence in the case. The more so that, based on evidence in the form of only evidence of a co-suspect’s slander, often apply for the application of temporary arrest, without the prosecutor having to check the “hypotheses” of the accusing person.
This can be observed in particular in subjectively complex investigations with a complicated factual state, in cases in which the suspects’ complicity was admitted in the given proceedings. In these proceedings, it can be easily noticed that the law enforcement authorities often do not analyse and verify the evidence, the circumstances of the case, and, consequently, also the existence of premises for the application of pre-trial detention in relation to a specific suspect.
Thus, law enforcement agencies often refer to testimonies of witnesses who do not even know the suspect and do not refer in any way to this specific person, indicate analyses or opinions which do not indicate that the suspect has committed a prohibited act. At the same time, the remaining circumstances cited by the Prosecutor to prove a high probability of the alleged act being committed are only hypothetical and are not reflected in the collected evidence. Such factual situations in the course of conducting cases can be observed very often. It is therefore worth recalling at this point that the basis for an application for pre-trial detention may only be evidence open to the suspect and his defence lawyer, which cannot be met in a situation of abstract evocation of evidence.
Thus, the public prosecutor ignores the fact that the assessment of the conditions for the application of this isolation preventive measure is individual, it is unacceptable to apply the regime of collective responsibility and equal treatment of all suspects. Only evidence and circumstances relating to a given suspect are assessed, not the general situation that has arisen during the proceedings.
In practice, it turns out, then that the only evidence showing that the suspect intended to commit the alleged prohibited acts is the slander of the co-suspect in the same case, which for the reasons mentioned above cannot be considered credible.
Therefore, there can be no doubt that in such a situation, it is completely insufficient to base the application for pre-trial detention solely on the explanations of another suspect.
In view of the above, it is worth pointing out that the prosecutor did not present any evidence that would prove that the suspect had committed the alleged criminal acts, thus the general premise of applying pre-trial detention under Art. 249 §1 of the CCP, which, depending on the stage of the proceedings, should result in disregarding the prosecutor’s request for the application or extension of pre-trial detention or the revocation of the court’s decision challenged by the defence lawyer.