P RE - TRIAL DETENTION

5.1 The legal framework

5.1.1 Detention on remand as part of the criminal justice process

The Code of Criminal Procedure 1997 states that detention on remand should only be used in cases where it is necessary to ensure the proper conduct of criminal proceedings and when there is evidence to indicate strong likelihood of the person being convicted for the alleged offence.²⁸ Remand can be used during the investigative stage of the proceedings, as well as for the duration of the trial. It may only be used where no other measure, for example, release on bail, would be appropriate and

28 The Code of Criminal Procedure 1997 Article 249 para. 1

sufficient in the circumstances of the case.²⁹ In particular, detention on remand can be used when:

1. there exists a reasonable suspicion that the person will abscond or go into hiding, and in particular where the person’s identity cannot be established or verified or where they have no fixed abode in Poland; or

2. there exists a reasonable suspicion that the person will interfere with witnesses or in any other way may try to pervert the course of justice.³⁰ In exceptional circumstances, remand may also be used to prevent the person committing further serious crimes,³¹ as well as when the charges are of such gravity that they would justify long-term imprisonment on conviction.³² Remand is ordered by a court following a remand hearing.³³

When ordering detention on remand, the courts are required to determine the length of such detention and specify the date on which detention is to cease.³⁴ The courts may determine, in the course of criminal proceedings, that further detention is needed in a particular case for the duration of the trial³⁵ and extend the initial length of such a measure.³⁶ The courts are obliged to give reasons for such extension and, each time, give reasons for which other measures, such as release on bail or release under police supervision, are not appropriate or sufficient in a particular case.³⁷ Remand should also not be used where the the alleged offence is punishable with imprisonment of 12 months or less,³⁸ or where there are reasons to believe that the sentence will be a community-based disposal or that the sentence of imprisonment will be suspended on conviction.³⁹

While considering detention on remand, the courts may choose not to order such a measure in circumstances where the person’s detention would have particularly serious consequences for the accused or their family.⁴⁰ For example, the court may consider that where a person is a sole carer of their children, or the only member of a family providing income, detention on remand would not be appropriate. Such exemption will not be granted, however, if the court is of the view that no other measure will ensure the appropriate conduct of criminal proceedings.

In accordance with Article 261 para 1 of the Code of Criminal Procedure, when ordering detention on remand, the courts are obliged to inform without delay the

29 As above Article 257 para.1

30 As above Article 258 para. 1

31 As above Article 249 para. 1 and Article 258 para. 3

32 As above Article 258 para. 2

33 As above Article 249 para. 3 and Article 250 para. 1

34 As above Article 251 para. 2

35 As above Article 251 para. 2

36 In any case, the length of detention between the time of the first decision to remand in custody and the sentence in the court of first instance should not be more than 24 months (Article 263 para. 3 of the Code of Criminal Procedure). In practice, however, Poland has been widely criticized for the systematic overuse of detention on remand for significantly longer periods of time (see for example Kauczor v Poland, 2009 (Application no. 45219/06), a case of an individual held on remand for nearly eight years)

37 The Code of Criminal Procedure 1997 Article 251 para. 3

38 As above Article 259 para. 3

39 As above Article 259 para. 2

40 As above Article 259 para. 1

of-kin of the detained person. This can be a member of their family or any other person named by the accused.⁴¹ Additionally, the court is obliged:

1. to inform a family court of the fact of detention on remand in cases where there is a need to provide care for the children of the person so held;⁴²

2. to inform social services in cases where the person provided care to other members of their family (for instance, elderly parents); and

3. to make sure that the person’s place of residence and their belongings are secure for the duration of detention on remand.⁴³

Every person detained on remand has to be informed of any decisions taken by the Family Court, social services or other authorities as a result of the court’s actions listed above.⁴⁴

5.1.2 The rights of remand prisoners

Remand prisoners in Poland are held separately to sentenced prisoners, either in a separate unit of a larger prison or in a self-contained remand prison (Areszt Sledczy).

In accordance with Article 210 of the Code of Execution of Criminal Sentences 1997 (Kodeks Karny Wykonawczy), remand prisoners are to be informed of their rights on admission and provided with a copy of the relevant regulations of the Code. Remand prisoners have the right to inform their family of the details of the place of their detention⁴⁵ and may also choose to inform other persons or organisations, for example, a voluntary organisation providing legal advice.

In general, remand prisoners are supposed to have the same rights as sentenced prisoners held in closed prisons,⁴⁶ with exceptions introduced only where it is necessary to ensure the proper conduct of criminal proceedings; ensure the safety and security in the remand prison and to ‘prevent further demoralisation’ of remand prisoners.⁴⁷ Such definition of the exceptions and relevant regulations of the 1997 Code, however, allow for the introduction of significant restrictions on rights; the restrictions placed on remand prisoners’ contact with the outside world, described below, being the best example.

Individuals held on remand are subject to restrictions regarding their correspondence and the use of telephone. On the basis of Article 217(a) of the Code, their letters are censored.⁴⁸ Remand prisoners are not allowed to use the telephone or any other means of telecommuncation.⁴⁹ This, together with restrictions placed on visits to individuals held on remand, impacts significantly on the person’s enjoyment of the right to family life.

41 As above Article 261 para. 2

42 Under Article 109 para. 2(5) of the Family and Care Code (Kodeks Rodzinny i Opiekunczy) 1964, a family court will decide immediately on the necessary course of action, including on the placement of a child/children with a foster family or in institutional care

43 The Code of Criminal Procedure 1997 Article 262 para. 1

44 As above Article 262 para. 2

45 The Code of Execution of Criminal Sentences 1997 Article 211 para. 2

46 As above Article 214 para. 1

47 As above

48 Article 217(b) of the the Code of Execution of Criminal Sentences 1997 provides for the exception of correspondence with defence lawyers, state authorities or international organisations such as the CPT.

49 The Code of Execution of Criminal Sentences 1997 Article 217(c)