Pre-trial
detention
31.08.2020

The European Court of Human Rights and the extension of pre-trial detention

Pre-trial detention is the most severe preventive measure provided for in the Polish criminal procedure. Contrary to other measures stipulated in the Code of Criminal Procedure, the decision on the application of pre-trial detention may only be issued by a court which should follow the directive on minimizing preventive measures expressed in Art. 257 § 1 of the CCP This directive also implies that, mentioned in Art. 251 § 3 of the CCP the court’s obligation to explain why it was not considered sufficient to apply another preventive measure.

The code also strictly defines the maximum period of applying pre-trial detention. According to Art. 263 § 1 of the CCP in the preparatory proceedings, the court, while applying pre-trial detention, shall mean its term for a period not longer than 3 months. Pursuant to Art. 263 § 2 of the CCP if, due to the particular circumstances of the case, it was not possible to complete the preparatory proceedings within 3 months, the court may extend the pre-trial detention for a period which may not exceed 12 months in total. In practice, however, it happens that the prosecutor’s office’s applications for prolongation of pre-trial detention are filed automatically, on the basis of general statutory grounds, and the courts, just as unreasonably, following the provisions of the Code, adjudicate on pre-trial detention for the next period requested by the prosecutor, justifying such a need. the development nature of the proceedings, its complexity, and the need to continue the evidentiary proceedings. In this case, it is also worth knowing that in addition to national regulations, which guarantee the protection of civil rights, international law also applies.

The issue of the rights of persons deprived of their liberty as a result of a conviction or pre-trial detention is also regulated in the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the “Convention”). The convention is part of the internal legal order and thus may constitute the direct basis for decisions of national authorities, including courts. At the same time, domestic courts are obliged to interpret domestic law in accordance with the provisions of the Convention. According to Art. 5 sec. 1 lit. c) of the Convention: everyone has the right to liberty and security of person. No one may be deprived of liberty except in the following cases and in the manner prescribed by law for a lawful arrest or detention for the purpose of bringing before a competent authority, if there is a reasonable suspicion of having committed an offense, or, if necessary, to prevent the commission of such a criminal offense. the act or preventing escape after it has been committed.

According to Art. 5 sec. 3 of the Convention: anyone arrested or detained in accordance with the provisions of paragraph 1 lit. (c) of this Article shall be brought promptly before a judge or other official authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. The release may be conditioned by guarantees to appear for trial.

Examples of Court judgments finding a violation of Art. 5 sec. 3 of the Convention

The European Court of Human Rights (hereinafter referred to as the “Court”) is an international court that adjudicates on complaints about violations of the rights and freedoms contained in the Convention for the Protection of Human Rights and Fundamental Freedoms and its Additional Protocols. A complaint may be brought by any person, non-governmental organization, or group of individuals who consider themselves to be a victim of a violation of the above-mentioned rights. Importantly, in accordance with Art. 35 sec. 1 of the Convention: the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken.

Violation of Art. 5 of the Convention is a frequent cause of complaints before the Court against Poland. The applicants alleged irregularities in the application of pre-trial detention – its length, grounds, and procedural guarantees. The Tribunal determined the above-mentioned problems as structural, i.e. those resulting from the defective functioning of a certain fragment of the legal system, in this case, a defective practice of the judiciary in Poland. The Court’s jurisprudence in cases of pre-trial detention against Poland is unfortunately very extensive and, despite numerous convictions in favor of the applicants, the abuse of this preventive measure remains a problem.

Examples of judgments made in cases against Poland, in which the Court found a violation of Art. 5 sec. 3 of the Convention.

The judgment of the European Court of Human Rights of 23 February 2016, 26649/12 (Matczak v. Poland)

In the present case, the applicant was charged with participation in an organized criminal group that involved extortion and having committed several violent crimes as part of his activities in that criminal group. He was detained on remand for a total of three years and six months.

The courts justified the use of pre-trial detention and its subsequent extension on the grounds that there was a reasonable suspicion that the applicant had committed a crime, imposing a severe penalty and the need to secure the proper course of the proceedings, due to the risk that the applicant could obstruct the proceedings. These fears were due to the fact that he was part of an organized criminal group and that one of the charges against the applicant concerned the violent manipulation of a witness.

The Court stated that the complaint was well-founded, as there had been a violation of Art. 5 § 3 of the Convention. In its justification, the Court stated that the seriousness of the charges could not in itself justify a long period of pre-trial detention, and the fact that the case concerned a member of a criminal group may be considered a basis for his detention at the initial stages of the proceedings, and under certain circumstances may also constitute grounds for later extension of the detention. However, this does not give unlimited powers to extend the period of application of this preventive measure, as with time the initial grounds for pre-trial detention become less relevant, and domestic courts should rely on other “appropriate” and “sufficient” grounds justifying the application of the measure. preventive measure in the form of imprisonment. In this case, the possibility of applying less restrictive measures should be considered in order to ensure the proper course of the procedure.

The judgment of the European Court of Human Rights of 21 March 2017 34458/03 (Porowski v. Poland)

In the present case, the applicant was charged with armed robbery and illegal detention. The total period in which he was temporarily arrested within the meaning of Art. 5 sec. 3 of the Convention was just over four years and six months.

All the detention orders issued against the applicant were based on the fact that there had been strong evidence against the applicant that a severe sentence would be imposed in the event of a conviction and that the course of the proceedings. An additional argument used by the courts was the fact that the applicant rarely lived at his address prior to his arrest.

In the statement of reasons for the decision, the Court stated that the reasonable suspicion against the applicant of having committed a serious crime could initially justify his detention. However, with the passage of time, this premise became less and less appropriate. The risk of obstructing the course of the proceedings by the applicant by trying to convince witnesses to give false testimony could have been a valid reason for prolonging his detention, but only at an earlier stage of the proceedings when his alleged accomplices had not yet been arrested.

The Court found that in this case there was a violation of Art. 5 sec. 3 of the Convention. In the Court’s view, while the severity of the sentence faced is an appropriate element in assessing the risk of someone absconding or re-offending, the seriousness of the charges cannot in itself justify long periods of pre-trial detention – in this case, more than four and a half years. As for the argument that it was likely that the applicant would go into hiding because, prior to his arrest, he rarely lived at his permanent address, the Court notes that there was no indication that the applicant actually went into hiding, moved abroad, or that his whereabouts remained unknown. In this respect, it does not appear that the authorities have had any problem finding and detaining him. The Tribunal also emphasized that pursuant to Art. 5 sec. 3 of the Convention, the authorities, when deciding whether a person should be released or remanded in custody, are obliged to consider alternative measures to ensure his appearance at the trial. A number of other, less restrictive, preventive measures could have been considered and applied to the applicant as an alternative to ensure his presence and participation in the proceedings.

The judgment of the European Court of Human Rights of 18 October 2018 15333/16 (Burża v. Poland)

The applicant, charged with participation in an organized criminal group, was detained for five years and three months.

The use of pre-trial detention and its subsequent extension was justified by the courts on the suspicion that there was a reasonable suspicion that the applicant had committed a crime, imposing a severe penalty and the need to secure the proper course of the proceedings. The courts pointed out that, due to the risk of a high penalty, the applicant might try to obstruct the proceedings by fleeing or influencing the witnesses in order to present a version of the events in his favor.

In the opinion of the Tribunal, there was a violation of Art. 5 sec. 3 of the Convention. In its justification, it admitted that, given the seriousness of the charges against the applicant, the domestic courts were entitled to assume that there was a risk of obstruction of the proceedings, however, according to the Court, the court’s decisions were often worded too general and did not present specific cases of the applicant’s conduct. during any investigation or trial that would justify an extension of pre-trial detention. The decisions did not mention any specific risk factors of the applicant tampering with evidence, deliberating, absconding, or otherwise interfering with the proceedings. The grounds for detention on remand were very often the same with regard to all co-accused and did not contain arguments specific to the applicant. Consequently, over time, the arguments initially used became less relevant and could not justify the entire duration of the preventive measure.

Summary

Consequently, several main problems related to the application of pre-trial detention in Poland can be distinguished:

  • long-term use;
  • the generality of the presented conditions for application in the provisions on the application and extension of the application of the above-mentioned measure
  • failure to take into account the possibility of using non-isolation measures,
  • the repetition and schematic nature of argumentation in decisions to extend the application of the above-mentioned measure,
  • justifying the above-mentioned measure through general statutory reasons, e.g. the severity of the impending penalty.

Such practices of the Polish judiciary may be considered a violation of Art. 5 sec. 3 of the Convention and become the basis for an award by the Court of compensation to the applicant. The Tribunal has consistently emphasized the need for Poland to take action aimed at combating the tendency for courts to prolong pre-trial detention.

The problems in applying this preventive measure in Poland are also highlighted by the Helsinki Foundation for Human Rights in its periodically published reports entitled “The practice of pre-trial detention in Poland”, which recommends a number of solutions that have not been implemented so far, incl. elimination from the Code of Criminal Procedure the premises of “a severe penalty threatening the accused”, introduction to the Code of Criminal Procedure a new preventive measure in the form of home arrest / electronic monitoring as well as a combination of non-custodial measures.

To sum up, it is worth remembering that after exhausting the remedies provided for in the Code of Criminal Procedure, in the event of a violation of rights under the Convention, it is possible to submit a complaint to the European Court of Human Rights. Practice shows that complaints about pre-trial detention are often considered positively.