Poland

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Contents

Introduction

After several hundreds of tumultuous history, including 123 years of partition between Russia, Prussia and Austria and over forty years of Soviet occupation, Poland became a democratic country at the end of 1989. The formation of the newly born democracy was finalised with the adoption of the Constitution on 2 April 1997. On 1 May 2004 Poland joined the European Union. Nowadays Poland is considered one of the healthiest post-communist countries and is one of the fastest-growing economies within the EU.

Type of system

Poland is a parliamentary representative democratic republic. The Constitution adopted on 2 April 1997, as the supreme legal act in Poland, specifies the framework for the functioning of all main authorities, including the justice system, as well as the basic rights and freedoms of the citizens. The main role in the Polish political system lies with the Parliament within its two chambers – Sejm (lower chamber) and Senate (higher chamber). The executive power is exercised by the Council of Ministers (Rada Ministrów), led by the Prime Minister. The President, who mainly serves as the diplomatic representative and the watchman of the Constitution, is the official head of the country and is elected by popular voting.

Poland's justice system is performed by: the Supreme Court (Sąd Najwyższy), common courts, administrative courts and military courts. There are three levels of common courts, which have jurisdiction over criminal cases: district (sądy rejonowe), regional (sądy okręgowe) and appeal (sądy apelacyjne). Criminal cases are proceeded by separate criminal divisions of each type of court. The criminal proceedings are of two instances, which means that the party may appeal against the first instance judgment. The district courts always rule as the first instance court and they hear minor cases such as thefts, insults or drunk-driving. More serious cases, such as murders, rapes or drug trafficking, are ruled in the first instance by the regional courts. The appeals are made:

  • (i) from the first instance judgment of the district court to the regional court; and
  • (ii) from the first instance judgment of the regional court to the court of appeal. In exceptional circumstances, cassation claims to the Supreme Court are allowed. These include the possibility of cassation claims from final judgments closing the proceedings and final decisions of appeal courts terminating the proceedings and applying security measures. Cassation claims may be brought by the parties, the Polish Ombudsman and the Polish Ombudsman for Children. Cassation claims may be brought solely because of the shortcomings mentioned in Article 439 of the Code of the Criminal Procedure (reasons for a judgment to be set aside) or other flagrant violations of law, if they could have had a significant influence on the content of the judgement. Cassation claims cannot be brought solely because of disproportionate punishment.

The main problem of the Polish judicial system, which was subject of a number of cases before the European Court of Human Rights, is the lengthiness of the proceedings and the long-lasting temporary detention. It is believed that some of the related issues will be resolved by the significant amendment of the Code of the Criminal Procedure which is expected to enter into force on 1 July 2015 a (as enacted on 27 September 2013).

The legal aid situation in Poland

The Polish Constitution provides human rights and civil rights protection in many areas, such as the right to property and inheritance, the right to liberty, the right to equality before the law and prohibition of discrimination, the right of defence, the right to a fair trial, the right to privacy, freedom of religion and beliefs and many others.

Any person whose rights and freedoms have been violated may revert to the Polish Ombudsman (Rzecznik Praw Obywatelskich - http://www.brpo.gov.pl/), who plays an important role in supervising whether the law, including the protection of human rights, are observed by the state authorities. The motion to the Ombudsman does not have to meet any special requirements – its enough to present one’s case and ask for help. The Ombudsman and his / her deputies monitor current events and in case they find that due to intentional actions or lack thereof by any agencies, organizations or institutions which are duty bound to respect freedoms and rights of the people, these freedoms and rights were violated, they undertake relevant actions. In such cases, they can act on behalf of the people in courts. The Ombudsman can undertake such actions only if a thorough analysis of the situation shows that the rights or the freedoms of the people were infringed, and only if such analysis recognizes the need for the Ombudsman to be involved in a case. The Ombudsman’s duties and prerogatives are regulated in the Polish Constitution and – additionally – in a separate legal act (Ustawa o Rzeczniku Praw Obywatelskich).

There are also a number of non-governmental organisations which provide free legal advice, for example the Helsinki Foundation for Human Rights (Helsińska Fundacja Praw Człowieka - http://www.hfhr.pl/en) which provides advice in relation to human rights abuses, and primarily the right to a fair trial. Other notable NGOs are: the Civil Advice Office (Obywatelskie Biuro Porad - http://obywatelskiebiuroporad.pl/) and Academia Iuris Foundation (Fundacja Akademia Iuris - http://www.academiaiuris.pl/) which provide legal assistance to people experiencing difficulties and who do not have substantial means. Law students’ initiatives also provide free legal through academic legal clinics (for example: http://www.wpia.uw.edu.pl/studia/klinika-prawa/klinika-prawa-kontakt/).

The accused may be represented during the trial by a qualified legal counsel (exceptionally by a trainee lawyer). Their relationship is based on trust, the legal counsel provides legal aid and explanations. The accused may appoint up to three legal counsel in the same proceedings. The organisations mentioned above may represent the defendants only through the cooperating legal counsel. According to the Code of the Criminal Procedure (Article 78) a defendant may request free legal aid if the defendant is not able to cover the related costs themselves. Also, any defendant who is:

  • (i) under 18;
  • (ii) deaf, blind or mute; or
  • (iii) is of questionable mental soundness

must be mandatorily represented in the court by a professional legal counsel (Article 79). If such person has not appointed their own legal counsel, the appointment will be effected by the court and the counsel’s fees covered by the State.

Sources of defendants' rights

Poland is signatory to several international conventions such as Convention for the Protection of Human Rights and Fundamental Freedoms, the Universal Declaration of Human Rights, the Helsinki Accords, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. As a member state of the European Union, Poland is also obliged to obey the principles established by this organisation.

The most important national legal source of provisions on the defendant’s rights is the Polish Constitution, which additionally guarantees most of the globally approved human rights including the defendant’s rights in criminal proceedings (see section on Rights of the accused below).

Another important source is the Code of the Criminal Procedure - a statutory act regulating the trial and the pre-trial proceedings in criminal matters. The Criminal Code is, in turn, relevant for determining whether an act may be classified as a crime.[1]

Pre-trial procedures

Informing authorities about the crime

According to the Code of the Criminal Procedure, every person is under an obligation to notify the Police or the Public Prosecutor if they are aware of a crime that has been committed (this obligation refers only to the offences prosecuted ex officio, i.e. with respect to which the Public Prosecutor or the Police must mandatorily institute criminal proceedings.[2] The authority that receives notification of the alleged crime has an obligation to deliver a decision on whether a preliminary investigation will or will not be opened.[3] The Police or the Public Prosecutor may also initiate criminal proceedings upon their own initiative, once they have knowledge that a crime has been committed.

Stop and arrest

The Police have the power to stop a person if there is a reasonable suspicion that they have committed a crime and the risk exists that they might try to escape, hide, or clear the traces of the crime.[4] The person may be also caught red-handed (in flagrante delicto) by anyone while committing a crime. Everyone has the right to catch a person in flagrante delicto or in a pursuit undertaken immediately after the commission of the offense, if there is a fear that the person may hide or it is not possible to determine their identity. Such person shall be promptly handed over to the Police.

Police are required to immediately inform arrested persons of the reasons for the arrest and of their rights, including the right to have legal counsel. At the detainee’s request they shall be allowed to meet their counsel.

Detainees must not be held for more than 48 hours, following which the detainee shall be released. Otherwise they must be handed over to the court and a request for a temporary detention has to be submitted to the court. There is no requirement to request the temporary detention in each case of the crime commitment. This will be subject to the Prosecutor’s and court’s assessment whether the temporary detention is required to secure the proper conduct of the proceedings. If the court’s decision regarding the temporary detention is not delivered within 24 hours the detainee shall be unconditionally released. Another detention under the same facts and circumstances is not allowed.[5]

The detainee may appeal to the court and require that the court examines the merits of the legality and regularity of his/her arrest.[6]

Pre-trial detention

The Polish criminal procedure contains preventive measures such as temporary detention of the defendant, security of property and police supervision, which may be used to secure the proper conduct of the proceedings and, if necessary, to prevent commitment of a further serious offense by the defendant. Preventive measures may be used only if there is a high probability that the accused person did commit the crime and only until commencement of the punishment ordered by the court in the final judgment.

Temporary detention of the defendant is a measure of last resort and shall not be applied if another preventive measure is sufficient.[7]. Temporary detention may be ordered by the court only (i.e. not by the Police or the Prosecutor). This order is required to specify the detention period, include reasons and be delivered to the accused person.[8] The detention order may be appealed against by the defendant[9]. A motion for a change or remission of a preventive measure may be submitted at any time.[10]. This applies to all preventive measures, not just detention.

If detention is ordered, the detainee’s next-of-kin or another person specified by the detainee should be promptly notified by the court of the detention. The basic duration of the detention may not exceed three months. After that period the Prosecutor may apply to the court for an extension, but the detention cannot last longer than 12 months in the pre-trial phase. Prior to delivery of the first-instance judgment the detention cannot exceed 2 years.

When deciding the appropriate level of security for the temporary detainee's premises, the court is not bound to accept the Prosecutor's version of the crime allegedly committed by the defendant.[11]

Preventive measures, including temporary detention, should be immediately remitted or amended, if the reasons due to which the measures were applied cease to exist[12].

Conditions, duration and possibility of extension of temporary detention are the subject of amendments to the law which will enter into force in mid-2015. The possibility to apply to extend the detention will be highly limited as compared to the current law. Accordingly, it will not be possible to use temporary detention if the crime is punishable by imprisonment not exceeding two years instead of one year (as the law currently states). If the accused's health condition so requires, temporary detention may take place in an appropriate medical center, including a psychiatric institution.

The new law will also provide other more detailed limitation to the use of the temporary detention.

Interrogation

Pre-trial proceedings are managed and supervised by the Public Prosecutor.

Before a suspect's first interrogation they should be informed of their rights to provide or refuse to provide explanations, to answer or refuse to answer questions of the Prosecutor or the Police, to request that certain procedural actions be taken, the right to legal counsel and to the final review of the proceedings’ files.[13] During pre-trial proceedings the suspect shall be granted, upon his own or his counsel’s demand, the option to provide written explanations The interrogator is required to prevent any contact between the suspect and other persons at the time of preparing the written explanations. The interrogator may, for certain reasons, refuse to accept an accused's written explanation. Signed and dated written explanations of the accused are added as an enclosure to the minutes of the interrogation.

No force may be used during the interrogation, save when it is needed to protect the safety of the interrogator or the accused. There are no set time limits for the duration of the interrogation. However, the Prosecutor and the Police must ensure that the interrogation is held in humanitarian conditions (including time and duration) and that human’s dignity is observed.

The authorities are not entitled to force a confession from the accused. The reliability of any confession made by the accused during the interrogation will be subject to the court’s assessment and is not binding upon the court.

If requested, a suspect's interrogation should be conducted in the presence of their appointed counsel.[14]

Rights of the Accused at All Times

According to the Polish Constitution a defendant has the “right to defence” at all stages of criminal proceedings (Article 42) and the right to a fair and public trial conducted without undue delay by a competent, impartial and independent court.[15]

The Constitution prohibits arbitrary deprivation or limitation of an individual's freedom. Such deprivation or limitation must always follow the statutory requirements and guarantees. A detained person shall be promptly informed in a comprehensible manner of reasons for the detention. Anyone deprived of their freedom shall be treated in a humane manner. Torture or cruel, inhumane or degrading treatment as well as physical punishment are explicitly prohibited [16]

The above-mentioned rights and guarantees are developed and implemented in the Criminal Procedure Code.

Any person accused of committing a crime against Polish law who does not speak fluent Polish may request the free assistance of an interpreter as well as delivery of translation of the basic proceedings documentation (including the indictment act)[17]

In one of its recent judgments[18] the Supreme Court confirmed that the right to defence includes a defendant’s right to take part in the court trial in person. If no possibility for personal participation in the trial is granted, this would constitute a very serious violation of the right to defence.

Double Jeopardy

No criminal proceedings shall be initiated if another criminal proceeding in respect of the same act committed by the same person have been validly completed (ne bis in idem, res iudicata) or are already pending (lis pendens)[19] If criminal proceedings are initiated in contravention of this principle, the proceedings shall be discontinued.

Legality Principle

As mentioned above, no act may be considered a crime unless it satisfies the statutory premises. Most of the criminal acts are described in the Criminal Code. The following types of punishments – depending on the gravity of the criminal act - may be imposed by the court:

  • (i) fine;
  • (ii) restriction of freedom;
  • (iii) imprisonment;
  • (iv) 25 years of imprisonment; and
  • (v) life imprisonment.

Capital punishment is not permitted under Polish law.

Presumption of innocence

The accused shall be presumed innocent until their guilt is proven and confirmed by a final court judgment. Any doubts which arise during criminal proceedings and cannot be removed are required to be resolved in favour of the defendant.[20]

The Supreme Court has clarified this provision on numerous occasions. In its decision of 28 February 2013[21] the Supreme Court explained in detail that any ambiguity shall be addressed by comprehensive evidentiary initiative and followed by a thorough analysis of the entire evidentiary material gathered in the case. A mere existence of several different versions of the underlying events is not sufficient to assume occurrence of irremovable doubts.

Court procedure

Pre-trial

Within 14 days following the close of an investigation the Prosecutor shall prepare an indictment act, or approve the indictment act prepared by the Police, and bring this act to the court.[22] The indictment act shall cover all circumstances related to the crime, precise information on the time and place of the commission of the crime, all evidentiary requests and justification of the indictment.[23]

If the Prosecutor finds no basis for further prosecution, a decision to discontinue the proceeding shall be delivered. This happens under the supervision of the court, which may set aside such a decision, in which case the final decision lies at the discretion of the Prosecutor again. If a final decision to discontinue the proceeding is delivered by the Prosecutor, the aggrieved party may file an indictment act themselves on the basis of Article 55 of the Criminal Procedure Code.

There are two simplified modes of proceedings that include cooperation of the accused person with the Prosecutor:

  • (i) a motion for voluntary submission to the punishment; and
  • (ii) a motion for conviction without conducting a hearing in open court.

They both relate to minor crimes and only apply to individuals with no criminal record.

Trial

Hearings are required to be scheduled and carried out without undue delay. Unless the court decides otherwise, Polish law requires hearings to be public. The trial begins with the presentation of the indictment by the Public Prosecutor. The parties (the Prosecutor and the accused) are generally entitled to present their views whenever the other party presents theirs or submits a motion. In particular, the accused is entitled to present their position against any evidence (documents, witness statements etc.) submitted in the case. After the evidentiary proceedings are closed the parties may present their final statements.

It is important to note that the accused is not obliged to self-incriminate – they have the right to refuse to testify or to answer any questions.

Sentencing

The judgment is delivered after the hearing is closed. The judgment is required to be based on all circumstances disclosed during the trial, but the court may exclude unreliable evidence from its consideration. The judgment must be in writing and publicly announced in the court room. During the judgment announcement, the court verbally explains the main reasons for the judgment.

Within seven days from the date of the announcement (and with regard to a judgment served during the trial, when the law provides for the delivery of the judgment - within seven days from the date of its receipt by the party) the parties may request in writing that the court provide written justification of the judgement. The written justification of the judgment shall be delivered within two weeks of the party’s request.

Appeal

Each party may appeal (in part or in a whole) against the first instance judgment within two weeks after the judgment is delivered to that party with its justification.

The defendant may only bring an appeal in their favour. This restriction does not apply to the Prosecutor who may appellate for or against the benefit of the accused. The appeal should be addressed to the court of second instance but submitted through the court of the instance, which issued the contested judgment.


References

  1. Article 1, Criminal Code.
  2. Article 304, Criminal Procedure Code.
  3. Article 305, Criminal Procedure Code.
  4. Article 244, Criminal Procedure Code.
  5. Article 248, Criminal Procedure Code.
  6. Article 246, Criminal Procedure Code.
  7. Article 257, Criminal Procedure Code
  8. Articles 250 and 251, Criminal Procedure Code.
  9. Article 252, Criminal Procedure Code
  10. Article 254, Criminal Procedure Code
  11. Supreme Court’s ruling of 27 January 2011, case no. I KZP 23/10.
  12. Article 253, Criminal Procedure Code
  13. Article 300, Criminal Procedure Code.
  14. Article 301, Criminal Procedure Code.
  15. Article 45, Polish Constitution.
  16. Article 40, Polish Constitution.
  17. Article 72, Criminal Procedure Code.
  18. Supreme Court decision dated 18 May 2012, case no. IV KK 119/11.
  19. Article 17, Criminal Procedure Code.
  20. Article 5, Criminal Procedure Code.
  21. Supreme Court decision on 28/02/2013, case no. V KK 343/12.
  22. Article 331, Criminal Procedure Code.
  23. Article 332, Criminal Procedure Code.



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