IN THE EUROPEAN COURT OF HUMAN RIGHTS. Władysław JAMROŻY v. Poland (Application no. 6093/04) WRITTEN COMMENTS HELSINKI FOUNDATION FOR HUMAN RIGHTS

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1 IN THE EUROPEAN COURT OF HUMAN RIGHTS Władysław JAMROŻY v. Poland (Application no. 6093/04) WRITTEN COMMENTS BY HELSINKI FOUNDATION FOR HUMAN RIGHTS 4 March INTRODUCTION 1. These written comments are submitted by the Helsinki Foundation for Human Rights (hereinafter referred to as the HFHR ), with its seat in Warsaw, Poland at ul. Zgoda 11 pursuant to a leave granted to the HFHR by Mr Nicholas Bratza, the President of the Chamber of the European Court of Human Rights (hereinafter: the Court ) under Rule 44 2 of the Rules of the Court. 2. These comments are limited only to the points of law, and in particular to the question of existence in Poland of a structural problem related to the application of pre-trial detention, especially its excessive length. These submissions do not include any comments on the facts or merits of the case of Władysław Jamroży v. Poland (Application No. 6093/04), but address only the general principles involved in the case. 2. INTEREST OF THE HELSINKI FOUNDATION FOR HUMAN RIGHTS 3. The HFHR is a non-governmental organization established in 1989 by members of the Helsinki Committee in Poland in order to promote human rights and rule of law as well as to contribute to the development of an open society in Poland. The HFHR undertakes legal actions in the public interest, including the representation of parties and preparation of legal submissions to national and international courts and tribunals, particularly within the framework of the Strategic Litigation Program. The aim of such submissions is to influence the process of changing laws and practices that the HFHR finds contrary to human rights standards. The HFHR has several times submitted its third party interventions to the European Court of Human Rights. 1

2 4. Since its establishment, the HFHR has been promoting the standards of the European Convention on Human Rights (hereafter: the Convention ), including human rights protection established by Art. 5 of the Convention 1. The case of Jamroży v. Poland presents an important issue, concerned with the general practice of application of pre-trial detention by Polish authorities. 3. GENERAL ASSESSMENT 5. The case of Jamroży v. Poland presents a problem of the use of pre-trial detention in Poland and in many cases its excessive length. There is a wide jurisprudence of the Court in which Poland has been declared as violating art. 5 3 of the Convention. Also the HFHR has undertaken different activities to popularize the jurisprudence of the Court such as holding conferences and seminars as well producing reports, press releases and leaflets. However, despite efforts by the HFHR and other institutions, such as Polish Ombudsman, standards elaborated in the Court s jurisprudence are not implemented fully into the practice of Polish courts and prosecutors. 6. Our general comments in the case are divided into following sections: (1) Relevant domestic law; (2) Pre-trial detention as a structural problem of Polish legal system judgments of the Court concerned with the application of pre-trial detention in Poland, the statistics concerned with the use of pre-trial detention in Poland and financial consequences of the use of pre-trial detention in Poland; (3) Problems with the application of pre-trial detention in Poland; (4) Institutional problems affecting the abuse of pre-trial detention; (5) Conclusions. 3.1 Relevant domestic law 7. The Code of Criminal Procedure of 1997 (hereinafter: CCP ) defines pre-trial detention as one of the so-called preventive measures. The other measures are bail, police supervision, guarantee by a responsible person, guarantee by a social entity, temporary ban on engaging in a given activity and prohibition to leave the country. Art of CCP sets out that preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence. 8. Art. 258 of CCP lists grounds for pre-trial detention. It provides that pre-trial detention may be imposed if (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode; (2) there is a justified fear that an accused will attempt to induce (witnesses or co-defendants) to give false testimony or to obstruct the proper course of proceedings by any other unlawful means. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years imprisonment, or if a court of first instance has sentenced him to at least 3 years imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed. However, recent changes to CCP introduced a possibility of imposing the pre-trial detention if the offender was caught while committing the crime or immediately after it. In such a case a general rule that pre-trial detention cannot be applied in case of an offence for the commission of which one may be liable to a statutory maximum sentence up to 1 year, is not applicable (art of CCP). 9. CCP establishes the priority of non-isolation preventive measures - pre-trial detention shall not be imposed if another preventive measure is sufficient (Art of CCP). 10. According to Art of CCP pre-trial detention shall be lifted if there are no special reasons to the contrary, in particular if depriving an accused of his liberty would seriously jeopardise his life or health or entail excessively harsh consequences for the accused or his family. 1 E.g. Arrest and pre-trial detention and Human Rights, edited by A. Rzepliński and Z. Hołda, Helsinki Commitee

3 3.2 Pre-trial detention as a structural problem of the Polish legal system Judgments of the Court concerning pre-trial detention in Poland 11. According to the HFHR the application of pre-trial detention in Poland can be said to be a structural problem of Polish legal system. There are many problems regarding the use of pre-trial detention in Poland both of direct (see point 3.3) and indirect (see point 3.4) character. However, the fact that application of pre-trial detention is a structural problem in Poland can also confirmed by the jurisprudence of the Court itself. 12. What is more, the number of the judgments in which the Court has found violation of Article 5 3 of the Convention on account of the excessive length of pre-trial detention by Poland is continuously growing. There are over 70 judgments in which the Court has found such violation with regard to Poland. The problem of the use of pre-trial detention in Poland has been noted by Council of Europe in the Committee of Ministers' Interim Resolution CM/ResDH(2007)75 concerning the judgments of the ECHR in 44 cases against Poland relating to the excessive length of pre-trial detention adopted on 6 June Despite different questions raised in this document Polish authorities has not undertaken yet sufficiently comprehensive plan of action to eliminate this problem The statistics concerned with the use of pre-trial detention in Poland 13. The official statistics prepared by the Ministry of Justice for years show that approximately 90% of the motions' of the prosecutor for an application of the pre-trial detention are allowed by courts. It means that per year courts use pre-trial detention in approximately cases (the lowest number was in cases, the highest in cases). 14. In most cases pre-trial detention is applied for a period of not exceeding 3 months. For instance in 2006 (last full year for which statistics are available) among detainees (the number of people who were in detention on the 31 December 2006) were detained for time not exceeding 3 months, for period exceeding 3 months but less than 6 months, 855 for period exceeding 6 moths but less than 12 moths, 186 for period between 12 and 24 moths and 12 persons for time longer than 2 years. The statistics concerning other years in that period are very similar. 15. These statistics were confirmed after inspection carried out by inspector judges (sędzia wizytator) in the area of Warsaw Court of Appeal upon the motion of the HFHR. The inspection was carried out in 11 different district courts and involved randomly chosen cases which were examined by these courts in years 2006 and The report from inspection showed that almost all motions of the prosecutor requesting for application of detention were allowed by courts. Furthermore, courts of second instance very seldom, if ever, changed decisions of district courts. For example, prosecutor submitted 282 motions for the application of pre-trial detention to the District Court in Ostrołęka. Only 23 of them were dismissed. The court of second instance which examined complaints in 93 cases, did not allow any of them. Furthermore, report from two district courts contained information concerning the length of detention. Even if most of the pre-trial detentions were for period of less than three months, in most cases the courts applied the maximum three month detention limit allowed by law, and not limited it to 1 month or 2 months Financial consequences of an abuse of pre-trial detention 16. Abuse of pre-trial detention results in serious financial consequences for the State Treasury. Costs borne by the State Treasury include direct costs related to detainee s stay in the place of detention as well as damages that the State has to compensate for unjustified pre-trial detention. 17. The amount of damages awarded by Polish courts differ from case to case. On average, in the first half-year of year 2007 the State was obliged to pay PLN (about Euro) to each complainant. The highest amount of awarded damages was PLN, while the lowest average 3

4 was PLN. However the general conclusion is that the amount of damages adjudicated for unjustified detention is growing. 18. In 2006 total amount of compensation paid for illegal or unjust pre-trial detention was equal to 4,8 million PLN (approx. 1,33 mln EUR). 19. Detention may have serious social and financial consequences for detainee. It may result in an infringement of a detainee good name and reputation, especially if it is unjust, even if as a result of a trial he would be acquitted. Such danger exists especially in local communities. Excessive or unjust detention may also have a negative impact on the business activity of detainees. In particular, it may happen when detention is connected with the seizure orders made by the prosecuting authorities, because of which accused can lose control over his company. 3.3 Problems with the application of pre-trial detention in Poland 20. One of the reasons for the structural character of the problem concerning application of pre-trial detention in Poland is the lack of sufficient knowledge by Polish authorities of the standards concerning the use of this preventive measure, as established in the jurisprudence of the Court Application of the ECHR standards by Polish authorities 21. The main problem with the use of temporarily detention in Poland is the way in which Polish prosecutors and courts apply the grounds for the application of pre-trial detention, given in the CCP and Art. 5 3 of the Convention. It happens that grounds for pre-trial detention are given by the court automatically, without real and extensive justification. Decision of the court, by which personal freedom of the suspect is strongly limited, remains in fact without justification and it is rarely longer than 2 pages of typescript and may also ignore specific circumstances of a case or be issued to a group of individuals (and not each to them separately). Reasonable suspicion of committing the offence 22. The persistence of reasonable suspicion that the detained person has committed an offence is both according the Polish law and Court's jurisprudence (among many others Klamecki v. Poland, no /96, 3 April 2003, 119), a condition sine qua non for the lawfulness of the continued detention. However, it happens that courts do not justify why the reasonable suspicion exists they limit themselves to the statement that in the light of statements given by prosecutor such a suspicion exists. We are familiar with the practice where the ground of existence of a reasonable suspicion, justified in described way, remains, in fact, the only premise for the application of pre-trial detention. 23. There is also a problem of non-sufficient knowledge of the standard that following lapse of certain time, persistence of reasonable suspicion no longer suffices to justify the prolongation of pre-trial detention. At the same time, it happens that courts do not examine whether there other grounds justifying the continuation of the deprivation of liberty. What is more, such grounds should be according to ECHR jurisprudence be relevant and sufficient and that it is expected that the national authorities display special diligence in the conduct of the proceedings (Jabłoński v. Poland, no /96, 21 December 2000, 80). Likelihood that a severe sentence might have been imposed on the applicant 24. Another ground that is applicable as a justification of pre-trial detention likelihood that a severe sentence might have been imposed, is abused. This ground is sometimes invoked in a hypothetical way, without giving specific reasons why in fact a severe sentence may imposed. 25. Moreover, with the passage of time, this ground becomes less relevant. Furthermore, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (e.g. Drabek v. Poland, no. 5270/04, 47, 20 September 2006). 4

5 Need to ensure the proper conduct of the criminal proceeding 26. It happens also that Polish courts justify their decision on the use of pre-trial detention on the ground that the suspect may interfere with the proper conduct of proceedings. According to standards of the Court such a danger cannot be hypothetical and that the anticipated risk of such a event should be proved. There must always be an indication that in reality at any earlier stage of the proceedings, the applicant tampered with evidence or made any attempt to induce witnesses to perjury (Klamecki v. Poland, cited above, ). The Court also disapproved the situation in which the detention of the accused no longer served the purpose of securing his proper conduct in such a situation court should apply non-isolative preventive measures that usually also guarantee effective process of obtaining evidence (G.K. v. Poland, no /97, 84, 20 January 2004). 27. Another problem is presumption by Polish courts that the suspect or the accused will interfere with the proper conduct of the proceedings it happens that courts reverse burden of proof in such a way that the suspect or the accused has to prove that other preventive measures will guarantee the proper conduct of the proceeding. In this way they violate the presumption of innocence as a general principle under the Convention (Labita v. Italy, 26772/95, 6 April 2000, 152; Celejewski przeciwko Polsce, no /04, 4 May 2006, 34). The nature of the proceeding 28. The reason for prolongation of pre-trial detention is often in fact a complicated nature of the case (so called rozwojowy charakter sprawy ). Prosecutors file motions for pre-trial detention expecting that in future - in the course of proceedings they will obtain new evidence confirming the criminal responsibility of the suspect. In this way, pre-trial detention is becoming an instrument for prosecutors to convince suspects to provide expected information. The suspect in that framework faces a deal according to which in exchange for explanations the pre-trial detention would be lifted. The Court has in its jurisprudence called for reassessment of the grounds of pretrial detention while prolongation of it is made in the light of evidence that was progressively obtained (Ilijkov v. Bulgaria, no /96, 80-81, 26 July 2001, Łatasiewicz v. Poland, 44722/98, 23 June 2005, 55-58, Contrada v. Italy, no /95, 24 August 1998, 54). Polish courts sometimes act contrary to this rule they prolong the pre-trial detention giving the same grounds as at the beginning. The risk of absconding 29. Polish courts use also the risk of absconding of the suspect or accused persons as a ground for the application of pre-trial detention. However, it happens that they do not give any real explanation why such a danger exists. The risk of absconding was inter alia used as the ground for detention in the decision of the Katowice District Court to justify the detention (no. XIV Kp 106/06, 23 February 2006). In this decision pre-trial detention was applied to businessman from New Zealand, Bruce R., a Member of the Board of International Fair of Katowice (Międzynarodowe Targi Katowickie) when a tragedy of building collapse resulting in death of 65 persons occurred in January Such ground was referred despite the fact that Bruce R. had come back from his country to explain exactly the accusations against him before the court decision was taken. 30. The Court has stated on numerous occasions that the danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be made to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts (W. v. Switzerland, Series A no. 254-A, 26 January ; Contrada v. Italy, as cited above, 55; Smirnova v. Russia, nos /99 and 48183/99, 24 July 2003, 60); 5

6 Consideration of other preventive measures 31. HFHR observes that the application of other preventive measures such as bail, personal guarantee or police supervision is limited. The prosecutors rarely request for these other preventive measures and the courts that very often are not familiar with all the documents and evidence prefer not take any to risk and therefore routinely apply pre-trial detention. Also the burden of proof that other measures such as bail and police supervision are sufficient to secure proper conduct of proceedings is, in practice, shifted to the suspect or accused. The Court stated repeatedly that state authorities should always consider, especially while prolonging pre-trial detention consideration, the possibility of ensuring proper conduct of criminal proceeding by imposing other preventive measures (Neumeister v. Austria, no. 1936/63, 27 June 1968, 3; Contrada v. Italy, as cited above, 54-55; Jabłoński v. Poland, as cited above, 58; Chodecki v. Poland, no /99, 26 April 2005, 58). Most recently, the Court reaffirmed this principle in case of Pyrak v. Poland (no /00, 12 February 2008), where the personal guarantee of highly prominent persons (including former Prime Minister) were not sufficient for the court to lift the pre-trial detention. 3.4 Institutional problems affecting the abuse of pre-trial detention General remarks 32. In the opinion of the HFHR the second major reason of the abuse of pre-trial detention in Poland are certain institutional and legal problems concerning regulation of this preventive measure. We are of the opinion that majority of problems could be avoided if the CCP would be drafted in a better way and provided more safeguards against violation of personal freedom. Sometimes this problems are of minor nature. However, taken all together lack of sufficient safeguards may result in the serious abuse of pre-trial detention in a significant number of cases Independence of prosecutors 33. The abuse of pre-trial detention is partially a consequence of an institutional regulation of the Prosecutor s Office. As a result of the last reform, the independence of lower level prosecutors has diminished in comparison to the previous regulation. Art. 8 of the Law on Prosecutor's Office of 1985 (Ustawa o Prokuraturze), has established many exceptions to the rule of the independence of the prosecutor who is in charge of an investigation. In fact, it provides superior prosecutor with many measures to influence the decision made by the prosecutor who is in charge of an investigation. Powerful position of superior prosecutors is especially important in the case of detention. The failure of the prosecutor's to make a motion requesting detention of the accused or suspect may result in disciplinary measures for him. Thus, prosecutors submit such motions (requesting detention or requesting its prolongation) too often. In this way, they pass the responsibility for use of pre-trial detention on courts. On the other hand courts sometimes may not have enough knowledge or experience (see below) and make decisions on the use of pre-trial detention too easily. 34. Furthermore, prosecutors may use pre-trial detention as a tool to force a suspect to provide certain explanations (this is so called areszt wydobywczy ). The suspect in such situation may face a deal according to which in exchange for an explanations the detention would be annulled. This can influence testimonies of a detainee, especially taking into account the fact of overpopulation and general poor conditions in Polish detention units. The term areszt wydobywczy is commonly used in media. Experience of the HFHR and our numerous conversations with former detainees indicate that such a practice is not only a media speculation Assistant judges 35. Decision on the use or prolongation of pre-trial detention is often made by assistant judges (asesor sądowy), who sometimes may not have sufficient experience necessary to properly examine the situation. Young, inexperienced assistant judges, may be susceptible to strong suggestions 6

7 made by the prosecutors who are in charge of investigations. The status of the assistant judge is regulated by sections of the Law on Courts of General Jurisdiction (Ustawa o ustroju sądów powszechnych). In the judgment of 24 October 2007 (No. SK 7/06) the Constitutional Court decided to repeal Article 135 (1) of the Law on Courts of General Jurisdiction. According to the Constitutional Court the status of an assistant judge differs from the status of a judge since the former is not guaranteed complete independence from the executive. As a result, the Constitutional Court found that the provision regulating the status of the assistant judges is not compatible with the Art. 45 of the Polish Constitution. In its judgment Constitutional Court took into consideration high number of 1700 assistant judges in Poland and the fact that they issue judgments and decisions in almost 3 million cases per year. It was also noted that assistant judges give judgments on the level of the courts of first instance and that they are very often responsible for difficult penal cases as well as pre-trial detention decisions. It is noteworthy that decisions upon the application of the pretrial detention both, in the case of Józef Wiśniewski (the applicant in case SK 7/06) and in the case of Mirosław Garlicki (see the communicated case Garlicki v. Poland, no /07) were made by assistant judges. 36. The need for guarantees of independence of assistant judges in deciding upon the application of the pre-trial detention is especially important, for instance in cases well known to the public, shaped by interests of political parties and mass media. There is also a practice that sittings of the court, on which it is decided whether to apply detention or not, are presided by assistant judges. The procedure for deciding which judge (and whether it will be an assistant judge) will preside in such sessions is vague and unclear. 37. Please note that in view of the judgment of the Polish Constitutional Court, the Polish Ministry of Justice is currently working on the reform of the institution of assistant judges Public character of the court sessions 38. The regulation concerning the court session during which the court decides about use or prolongation of pre-trial detention is problematic. The literal meaning of Article 96 of CCP leads to the conclusion that such sittings of a court are not public. It means that not only such sittings are closed for public or journalists, but also its wording indicate that such sittings are closed for the representatives of the non-governmental organizations. As a result, the courts decides arbitrarily whether to allow the attendance of such representatives. This leads to lack of the social oversight of the application of the detention in Poland. The representatives of the HFHR have experienced a couple of times refusal to attend court sessions when court was deciding on pre-trial detention. At the same time, the legal doctrine 2 and the jurisprudence of the Supreme Court (I KZP 46/03, judgment of 25 March 2004) tend to allow public character of such sessions Right to defence of a detainee 39. Another problematic issue stems from Art of the CCP. The practice of courts based on this provision results in the lack of information for the attorney about the court session during which the decision upon detention is taken. Such practice endangers the right to defence of the accused and prima facie to violate the general rule of the Art of the CCP. 40. The above mentioned problem should be seen in the wider perspective connected with access by the suspect to attorney in case where he cannot afford to hire an attorney. The rules of admitting ex officio attorneys are unclear in Poland (see Art of CCP). Thus it happens that the suspect who cannot afford legal representation does not appear personally in the court deciding on prolongation of the pre-trial detention usually he/she is only present on the court session when pre-trial detention is applied for the first time. Such situation is possible due to lack of provisions in 2 Piotr Kładoczny, Jawność posiedzeń aresztowych [Public character of court sessions concerning pre-trial detention], [in] Łukasz Bojarski (eds.) Sprawny sąd. Zbiór dobrych praktyk, Warsaw 2008, str

8 the CCP obliging the court to inform the suspect and bring him to the court for the session during which the decision on the prolongation of the detention is taken. Due to this gap the right of defence for suspect who is not represented by attorney is seriously limited. Quite often the first real contact of the suspect with court takes place after the bill of indictment is filed and the trial proceedings are started Access to documents 41. Furthermore, provisions of CCP are vague as regards access of suspect and his counsel to documents gathered during investigation that support decision about detention. In practice it happens that attorneys are restricted in access to case files, because of the proper conduct of investigation. According to Art CCP it depends on the prosecutor who is in charge of the investigation whether the parties to the proceeding during an investigation will be allowed an access to the files. In effect, pre-trial detention may be used or prolonged for a significant period of time and at the same time attorney of the detained person does not know even basic information from the case-file which may be of relevance in defending the client against the abuse of pre-trial detention. The HFHR has been many times contacted by attorneys being in such a situation, where because of will of the prosecutor, they were deprived access to court files and in consequence could not present any serious arguments at court sessions deciding on prolongation of pre-trial detention. 42. In this context one should note interesting interpretation made by the Regional Court in Tarnobrzeg (postanowienie Sądu Okręgowego w Tarnobrzegu, , sygn. akt II 1 Kz 144/07). It decided that in order to show respect for the principle of equality of arms and fair trial it is necessary to give the suspect, concerning whom the motion for pre-trial detention was submitted, and his counsel, an access to those files on which decision about detention was based. These files should be considered as court files according to the Art of the CCP and consequently the suspect and his counsel should not need to ask for an agreement from the prosecutor who is in charge of the investigation in order to have an access to it. However, this interpretation is not a standard among Polish courts and may be regarded as rather unique No time limits for prosecutors 43. In the CCP there is lack of provisions upon which prosecutor would be obliged to undertake every action involving a detainee immediately after detention. No time limits for the prosecutor are given in CCP. Thus, it happens in practice that first actions, like for instance hearing, takes place in the second or even third month of the detention. 44. Please note that under Polish law there is also lack of any remedy against the length of preparatory proceedings. Currently the Government is working on the relevant amendments to the Law of 17 June 2004 (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki), which would enable to complain on the excessive length of proceedings at this stage. Such amendment will have a disciplinary effect on prosecutors in performing their duties, and indirectly may have impact upon the length of pre-trial detention Lack of the jurisprudence of the Supreme Court 45. Please note that the jurisprudence of the Supreme Court on legal issues connected with pre-trial detention is scarce and consists of only few cases. Extraordinary cassation appeals concerning pretrial detention cases may be filed to the Supreme Court only by the Polish Ombudsman or by the Prosecutor General. Thus, since the judgments of the Supreme Court still remain the main source of information and source of Polish legal act interpretation (including standards established under the CCP), the chances for Polish judges and prosecutors to get familiar with the human rights standards in case of pre-trial detention are limited. At the same time the Supreme Court has only very limited opportunity to interpret different provisions of the CCP and their application in individual cases 8

9 concerning pre-trial detention and thus to have impact on the jurisprudence of lower courts Regulations concerning prolongation of pre-trial detention 46. According to Polish law, the length of pre-trial detention cannot exceed 3 months (Art of the CCP). However, the HFHR observes that in most cases, when first decisions on detention are made, courts apply detention for the maximum allowable period, i.e. for period of 3 months. They consider very rarely possibility for shorter periods of detention (e.g. two weeks, month or 2 months). 47. In Poland criminal investigation is usually not terminated during the prescribed period of 3 months it happens often that prosecutors during the third month of detention file a motion to the court asking for prolongation of the detention. The reason given is usually that investigations have not been completed and that the other actions, e.g. witness hearing, are to be taken. In such cases the court of first instance competent to deal with the case may prolong the detention for a period (or periods) which as a whole may not exceed 12 months (Art of the CCP). 48. The whole period of pre-trial detention until the date on which the first conviction by the court of first instance is imposed may not exceed 2 years. However, the court of appeal within whose jurisdiction the offence in question has been committed, can prolong pre-trial detention for a further fixed period exceeding 2 years for such reasons as when it is necessary in connection with a stay of the proceedings; a prolonged psychiatric observation of the accused; a prolonged preparation of an expert report', when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings as well as other important obstacles which could not be overcome. 49. This last proviso other important obstacles which could not be overcome has been found unconstitutional by the Polish Constitutional Court (judgment of 24 July 2006, no. SK 58/03). The Constitutional Court decided that this proviso allowing for extension of pre-trial detention for a period longer than 1 year in preparatory proceedings is unconstitutional. It was declared as not precise enough and it opened possibilities for being overused to justify prolongation of the detention. 50. In the same judgment, the Constitutional Court made some de lege ferenda remarks. According to the Court, a motion to the court of appeal for prolongation of pre-trial detention for a fixed period exceeding 2 years, should be made in a preparatory proceedings by the Prosecutor General. A given prosecutor dealing with the case should ask Prosecutor General for such a motion. Constitutional Court in its de lege ferenda remarks suggested also that a fixed time limit for which pre-trial detention can be applied as a remedy for speeding up the criminal proceedings should be considered. The Polish Ombudsman is of the opinion that such maximum time-limit should be established. Taking into account this position, the Ombudsman acceded to the constitutional complaint submitted by Józef J., who questions the lack of such limit. The case is currently under consideration of the Constitutional Court (No. SK 46/07). 51. The judgment of the Constitutional Tribunal, although important, did not change the policy regarding pre-trial detention - proposed solutions have not been introduced into the Polish legal system. The ease of the prolongation of the detention and its length remains a systematic problem of Polish legal system. Quite often the final sentences are no longer than the length of the pre-trial detention for given case. In this way, pre-trial detention is increasingly replacing the final penal sentence. 4. CONCLUSIONS 52. In opinion of the HFHR the abuse of pre-trial detention in Poland is a structural problem, which needs a comprehensive addressing and reform. The current situation endangers such basic rights as personal freedom, presumption of innocence, right to a fair trial, the right of the suspect or accused 9

10 to defence, as well as the right to peaceful enjoyment of possessions and freedom of economic activity. 52. This situation is a result of some imperfections of the Polish criminal procedure but the much more important cause is inappropriate application of the existing rules by the authorities. 53. Some possible changes in Polish law are as follows: Establishment of a fixed time-limit during which pre-trial detention can be applied, in accordance with de lege ferenda remarks by the Constitutional Court and Polish Ombudsman; Exclusion of assistant judges from decision making in cases concerning pre-trial detention; Implementation of the obligatory ex officio representation for all suspects; Implementation of the obligatory appearance of the suspect on the court session during which the decision upon prolongation of the pre-trial detention is taken; Guarantee of the full independence of the prosecutor who is in charge of an investigation to make a decision concerning necessity of the pre-trial detention; Application of a genuine control over an investigation, to avoid situation when the time of the pre-trial detention becomes excessive due to improper conduct of an investigation; Introduction of the complaint on the length of proceedings at the preparatory stage; Establishment of disciplinary responsibility of a prosecutor who submits a motion requesting pre-trial detention, which is not well justified; Providing better access to case files for attorneys in order to properly defend their clients in proceedings concerning use or prolongation of pre-trial detention. 54. We consider also that complex awareness-raising activities are necessary on the part of the Government in order to provide all judges and prosecutors with the extensive knowledge on the standards of the Court concerning pre-trial detention. On behalf of the Helsinki Foundation for Human Rights, Adam Bodnar Secretary of the Board Written comments have been prepared by Maciej Bernatt and Ewa Dukaczewska, lawyers in the Strategic Litigation Program of HFHR 10