[STANCE] IT’S TIME TO STOP DETENTION LAWLESSNESS

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 The Ministry of Justice is working on changes to the law on pretrial detention. In the Polish penitential system, pretrial detention has been a punishment before sentencing for decades. Prosecutors request pre-trial detention without proper legal grounds, and courts issue rulings without hesitation. As a result, innocent people, including often Polish entrepreneurs, end up behind bars for months or even years without a sentence. According to the Ministry, it is crucial to change the regulations to specify the conditions for extending detention. The Warsaw Enterprise Institute appreciates the goodwill of the Ministry but takes the stance that it should go even further and apply Finnish solutions. Otherwise, the Polish justice system will continue to be a system of human rights violations. Below are the assumptions for a thorough reform.

The presumption of innocence is a fundamental and one of the oldest legal principles. People cannot be imprisoned without evidence of guilt, trial, and conviction. Unfortunately, the unjustified adjudication and extension of pre-trial detention have been a problem in Poland for years. The number of people in pre-trial detention since the early 2000s has reached up to several thousand a year. In 2001, as many as 24,000 people were arrested. At the end of 2021, more than 11 thousand citizens were temporarily detained. Currently, more than 8 thousand people are temporarily detained. The time spent in detention in our country averages nine months, three times longer than in Austria or the UK. Pre-trial detention, in effect, instead of being a preventive measure to secure the proper conduct of proceedings, becomes a punishment issued before a sentence is passed, with an unspecified duration. The abuse of pre-trial detention is not a matter of individual decisions by judicial authorities but of the existing model of court operation in Poland, where the authorities automatically order arrest.

This is likely to change. In July 2018, the current Minister of Justice Prof. Adam Bodnar, in his capacity as Ombudsman, sharply criticized the overuse of pre-trial detention. He appealed to then-Prosecutor General Zbigniew Ziobro to introduce a maximum time limit, beyond which pre-trial detention could be extended only in exceptional cases. Today, the Ministry of Justice, under the direction of Minister Bodnar, is working on amendments to the law to clarify the grounds for pre-trial detention and to eliminate the severity of the punishment as a per se ground for the use of detention.

The Warsaw Enterprise Institute, appreciating the goodwill of the Minister, asks the government to introduce a series of reforms that will allow it to eliminate a severe and painful systemic pathology. Deprivation of liberty generates enormous costs both for the wronged individual and for society as a whole. A detained person loses the ability to support his family, which leads to negative social consequences. Unable to work, he can also not pay taxes, which depletes the state budget. Additionally, in the future, this budget will have to finance compensation for him for wrongful imprisonment. Anyone can fall victim to abuse, including entrepreneurs. Szymon Krawiec mentions this in his book “Hunting. How business is destroyed in Poland.” The author describes eleven shocking stories of entrepreneurs who were wrongfully prosecuted and placed in pre-trial detention. These people remained de facto deprived of freedom for a few months, losing the assets they had worked for all their lives. As a result, not only did they suffer, but also the dismissed workers.

In 2022, we published a Report entitled. “No verdict, no trial, no indictment. Abuse of pre-trial detention in Poland” with our recommendations for curbing this practice. Following the examples of the most developed countries, we advocate using the severity criterion of the offense. This reform was introduced in Finland in the 1970s. According to it, pretrial detention should be used only in serious violent crimes. This significantly reduces the number of detainees and, thus, the cost to the state of keeping detainees. Reducing the number of detainees is also of great importance to the detainees themselves, as overcrowding in detention centers negatively affects sanitary and living conditions.

In addition to reforms of a systemic nature, which require a certain amount of time to implement, we can already introduce quick solutions to reduce the number of people in custody. First, the guidelines for law enforcement agencies should be clarified so that they apply non-custodial preventive measures by default at the pre-trial stage[1]. To effectively demonstrate abuses on the part of the authorities, organizations protecting human rights (e.g., the Helsinki Foundation for Human Rights) should have increased access to participate in proceedings as observers. The observer should advocate for the public interest in the context of demonstrating the court’s responsibility to decide whether to use detention from the perspective of at least the impact on business. As early as in the first statement of reasons, the court should state precisely why there is suspicion of a crime and give specific reasons in favor of the use of arrest.

The abuse of pre-trial detention is a huge systemic problem, consisting of both faulty criminal policy by law enforcement agencies and passivity by the authorities. The Warsaw Enterprise Institute is convinced we face a historic opportunity for critical reforms. In the Western value system, the presumption of innocence is a fundamental principle based on respect for human freedom and dignity, so decisions to deprive people of their liberty must always be justified on grounds beyond doubt.

 

[1] The Code of Penal Proceedings provides only one isolation measure, namely pretrial detention (Article 258 of the Code of Penal Proceedings), and the following non-isolation measures: property surety (Article 266 of the Code of Penal Proceedings), social surety (Article 271 of the Code of Penal Proceedings), personal surety, also known as surety of a trustworthy person (Article 272 of the Code of Penal Proceedings), police supervision (Art. 275(1) of the Code of Penal Proceedings), conditional police supervision (Article 275(3) of the Code of Penal Proceedings), an order to periodically vacate a dwelling jointly occupied with the victim (Article 275a of the Code of Penal Proceedings), suspension of the accused from certain activities (Article 276 of the Code of Penal Proceedings), a prohibition on approaching the victim at a specified distance, (Article 276a of the Code of Penal Proceedings), and a ban on leaving the country (Article 277 of the Code of Penal Proceedings).

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