The problem of pre-trial detention in Poland does not stem from the shape of the law, but from the approach of the people who apply it. The amendment to the Code of Criminal Procedure concerning, among other things, the rules for applying pre-trial detention, which was recently vetoed by the President – with that utterly unsurprising populist justification: “we want to continue having the ability to violate your rights in order to protect you, dear citizens” – was a step in the right direction, but not a necessary one to solve this problem.
It is people who interpret and apply the law. The current provisions of the Code of Criminal Procedure regarding preventive measures (including detention) need to be changed, but this is not essential for the practice of their application to change. The truth is that prosecutors (who file such motions) and judges (who approve them) are responsible for the abuse of pre-trial detention in Poland – who, feeling their own impunity (formal immunity!), know that they can do whatever they want in detention cases. They will not bear any responsibility for it anyway.
Therefore, as long as judges and prosecutors do not start bearing responsibility like ordinary citizens (ok, while retaining certain material immunity), even the best provisions on pre-trial detention will continue to be opportunistically interpreted and applied. And nothing will change.
On what basis do I make such conclusions? Based on my own experience in criminal cases and the application of pre-trial detention, as well as the Helsinki Foundation Report from 2023.
What prosecutors and judges often write in detention motions and orders is some perversion of the justice system, at the hands of people who decide about our life and freedom. All because the reality of the Polish justice system is such that whatever a judge or prosecutor writes in a case concerning preventive measures, they will not bear any responsibility for it.
It is standard that in motions for pre-trial detention and court orders approving these motions, one can find platitudes, generalities, some terrible bureaucratic newspeak that sometimes cannot be understood, let alone subjected to any logical assessment from the standpoint of legal argumentation. I collectively call the work of prosecutors and judges “copy-paste documents.” Why is this so? Because they know that it does not matter what they write, since nobody will hold them accountable.
Let me give some examples from practice:
- Pre-trial detention for a girl in her 6th month of pregnancy, in a cryptocurrency case (all data indelible in banks and on the blockchain), where the court and prosecutor unanimously concluded that the suspect could “alter or delete data on the blockchain” (!), so detention was necessary.
- A motion for pre-trial detention justified by the threat of evidence tampering, “because the suspect has a phone and social media” and since so, they could tamper with evidence through social media.
- Pre-trial detention justified by flight risk, “because the suspect has a passport and already knows that proceedings are being conducted against them, therefore it should be presumed they will flee.”
- Rampant “presuming” and “inability to exclude” special grounds for applying preventive measures (including detention) when these grounds must be real, justified, and derived from evidentiary material. But again, what difference does it make. Nobody will hold anyone accountable for it anyway.
- Extension of detention by a judge, a well-known defender of the Constitution and human rights (but only when it concerns judges’ rights…), who shortened the prosecutor’s and my statements to one sentence, closed the hearing, and sent the detainee to prison for another 3 months.
- A prosecutor who refused a visit for a detainee with his newborn child (in the presence of an officer – such a possibility exists), citing the “threat of evidence tampering” and violation of the newborn’s human rights.
I could go on for a long time. The truth is that people must change above all, not the law. It is people who apply the law, not the other way around.
It is enough to abolish formal immunities of judges and prosecutors and start with transparency of detention proceedings (as the Helsinki Foundation writes about in their 2023 Report). It would immediately turn out that, on the basis of current legislation, it is possible to simultaneously: apply detention and preventive measures “humanely” and decisively and effectively combat crime. There is no contradiction here, and these two goals can and must be pursued in parallel.
Paweł Osiński
Attorney, practicing in criminal cases involving economic crime, money laundering, and new technologies (crypto assets)
Contact us:
E-mail: pawel@osinski-legal.com
Tel. +48 698 765 048