Tech & Rights

Poland's New Criminal Code: 3 Years of Work for 9 Months of Use

A change to the country's criminal procedures — implemented a year after the previous amendment was adopted — poses a threat to the principle of legal certainty.

by Polish Helsinki Foundation for Human Rights
(Image: Polish Ministry of Foreign Affairs)
An amendment of the Criminal Code was implemented in July 2015, after preparations that took over three years. It introduced the adversarial system of justice.

The adversarial system involves minor participation from judges, who are tasked only with deciding cases, and major roles for attorneys and stakeholders directly involved in the case.

Recently, the Sejm (the lower house of the Parliament) adopted a measure to withdraw the entire reform and restore the model of the inquisitorial system, wherein judges have a major investigatory role. The act is soon to be implemented.

Fruit of the poisonous tree

In its opinion, the Helsinki Foundation for Human Rights had positive comments on the proposed changes to the use of punishment without a trial and plea-bargaining, and to the removal of the regulation that allowed for termination of criminal proceedings when requested by the victim.

"The amendment overrides the law that prohibited using in proceedings the so-called fruit of the poisonous tree - the evidence which was acquired for the purpose of criminal procedure by a banned act," says Piotr Kładoczny, a lawyer at the HFHR. "The overruling of that law is in our view a wrong idea. Obligation of introducing regulation that prohibits using the fruit of the poisonous tree results from the case-law of the [European Court of Human Rights]."

Unfortunately, the act narrows the range of liability for damages regarding errors of the criminal justice system. According to the HFHR, the proposed regulation would make it impossible to investigate the responsibility for damages resulting from application of criminal measures such as vocational activity ban or driving ban, which have even more negative effect on an individual than the punishment.

Compatibility with European standards

The HFHR has some doubt regarding the act’s compatibility with the laws of the European Union. Some changes in the access to data of pre-trial proceedings are contrary to the regulations of the EU directive on the right to information in criminal proceedings.

Additionally, the draft does not contain any analysis on whether the planned regulations are compatible with the standards of the European Convention of Human Rights.

"The HFHR is mostly concerned with the changes regarding provisional detention”, says Barbara Grabowska-Moroz, a lawyer at the HFHR. "The Tribunal in Strasbourg ruled that probability of such a harsh punishment as imprisonment is not enough a reason for provisional detention for a longer period of time."
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