The 14th Conference of the Court Watch Poland Foundation was held on 20 September 2024. It included an Oxford debate on the topic: ‘Are amendments to the provisions of the Code of Criminal Procedure necessary for Poland to stop losing cases related to the use of pre-trial detention before the ECtHR?’. One of the participants in the debate was Mr Piotr Kubaszewski from the Helsinki Foundation for Human Rights. He presented specific proposals for amendments to the provisions of the Code developed by the HFHR.
Proposals of HFHR of changes to the law
Concrete proposals for amendments to the Code of Criminal Procedure have already been prepared by the Helsinki Foundation for Human Rights.
First of all, the HFHR proposes to completely remove the premise of threatened severe punishment from the Code. It was recently hoped that the Minister of Justice would proceed with a draft amendment to the Code envisaging, inter alia, the removal of this provision. In the end, however, the draft only weakened this premise. The threshold of the penalty is to be raised from 8 to 10 years. In addition, there are plans to limit the use of pre-trial detention on this basis to 12 months. The latter is likely to be linked precisely to ECHR judgments recognising prolonged detention on this basis as a violation of the Convention.
In the view of HFHR, the grounds of fear of being caught and fear of flight need to be modified. Namely, these fears should not only be well-founded, but real. In addition, the lack of a permanent place of residence cannot justify the fear of absconding or hiding.
The Foundation also calls for a reduction in the maximum duration of this measure from three to one month. The periods for extending pre-trial detention should also be shorter. In addition, it also proposes to remove the need to take evidence in a case of particular complexity or outside the country as justification for extending detention.
The court examining the application for remand would be obliged to control the prosecutor’s description of the act and its legal qualification. This would counteract the practice of charging in an ‘exaggerated’ manner, e.g. on the grounds of the threat of a severe punishment.
The changes would also apply to prosecutors
In addition, the draft envisages the mandatory presence of a prosecutor at an arrest hearing. The rigour here would be strict – absence would be deemed to be a withdrawal of the application. In addition, the prosecutor would be obliged to justify why other preventive measures are insufficient. He or she would also have to give a justification for the requested duration of the detention, together with a list of the activities to be carried out during this period.
As a remedy for excessive and unjustified extensions of detention, the HFPC proposes a ban on basing repeated requests for extensions on identical grounds. According to the draft, Article 263 § 4c would be added to the Code, according to which the court would refuse to extend pre-trial detention in cases where the prosecutor failed to carry out earlier procedural actions at an earlier stage without a justified reason.
The Foundation also calls for the repeal of Article 257 § 3 of the Code of Criminal Procedure, i.e. the prosecutor’s objection. Extradition detentions, which are said to be an abnormal practice, but nevertheless common, should simply be expressly prohibited.
In addition, it is also proposed to use modern technologies, already proven in the conditions of imprisonment under the electronic surveillance system. This, of course, refers to house arrest, which could provide an intermediate measure between full custodial isolation and non-custodial measures.
These are the main proposals for changes, presented by Mr Piotr Kubaszewski of the Helsinki Foundation for Human Rights during the 14th Conference of the Court Watch Poland Foundation. Undoubtedly, the jurisprudence practice needs to be changed, but without amending the legislation it may be very difficult. Therefore, it remains to be hoped that the project will soon be passed through Parliament and at least some of the proposed solutions will be introduced into the Code.
Full article is available in Polish here.
