The full text of the statement:
Dear Mr President,
On 19 July 2019 the Polish Parliament adopted an amendment to the Code of Criminal Procedure (CCP). According to the authors of the amendment, its adoption was justified by a need to accelerate criminal proceedings and guarantee that criminal cases are processed within a reasonable time. However, the content of the amendment raises serious doubts about its compatibility with international legal standards, since it will allows public authorities to arbitrarily deprive individuals of their liberty and their right to appeal against their convictions. It will also limit the scope of the right to defence. As members of the JUSTICIA European Rights Network, we are writing to express our concern about these changes.
Under the amendment, public prosecutors will have the final say in some cases concerning pre-trial detention. If the court decides to revoke pre-trial detention and grant bail, prosecutors will be entitled to file an objection, thus forcing the court to suspend the execution of its judgement. Until now, it has been solely the court’s decision whether to amend such a measure.
These changes add weight to previously raised concerns over the tendency of the Polish authorities to increase prosecutorial powers at the expense of judicial independence, violating the principle of equality of arms in criminal proceedings, and exposing individuals to the risk of human rights violations. If the final decision on deprivation of liberty is not taken solely by an independent court, then such provisions may result both in unlawful deprivation of liberty and the violation of Article 5 of the European Convention on Human Rights.Moreover, the amendment will allow appeal courts to sentence people who had criminal proceedings against them ended at a first instance court with probation. Furthermore, the amended CCP will not provide the chance for these people to appeal against their convictions. As a result, the provisions will violate Article 2.1 of Protocol no. 7 to the European Convention of Human Rights, as well as Article 14.5 of the International Covenant on Civil and Political Rights.
Finally, the amendment will, in some extraordinary cases, allow criminal courts to conduct evidentiary proceedings without either the defendant or the defence counsel being present, even when their presence is justified. At the same time, the amendment does not provide defendants with any effective remedy to compel the court to conduct the evidentiary proceedings again. Courts will be obliged to do so only if the defendant proves that the manner of evidence-taking breached their procedural guarantees, especially their right to a defence. As a result, the provision raises grave concerns about its compliance with human right standards.
The European Court of Human Rights (ECtHR) has repeatedly made clear that the right to be present during criminal proceedings is a vital element of the right to a fair trial. According to the ECtHR, the duty to guarantee the right of a criminal defendant to be present in the courtroom ranks as one of the essential requirements of Article 6 of the European Convention on Human Rights. If they are not present it is difficult to see how defendants can exercise the specific rights set in Article 6, especially the right to defend themselves in person and to examine or have witnesses examined.
A similar guarantee might also be found in the Directive 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at criminal proceedings. Under Article 8, EU Member States are obliged to ensure that suspects and accused persons have the right to be present at their trials. Moreover, a trial may be held in their absence only if they have been informed, in due time, of the trial and the consequences of their non-appearance and if they are represented by a mandated lawyer.
The JUSTICIA European Rights Network considers that none of the solutions adopted in the amendment can be reconciled with the requirements of the right to a fair trial. JUSTICIA calls upon the President of Poland to request a review of those provisions by the Constitutional Tribunal or to veto the proposed amendment.
Members of JUSTICIA European Rights Network
The members of the JUSTICIA European Rights Network are: Open Society Justice Initiative, Ludwig Boltzmann Institute, Bulgarian Helsinki Committee, Croatian Law Center, Civil Rights Defenders, Res Publica, Hungarian Helsinki Committee, Greek Helsinki Monitor, Irish Council for Civil Liberties, Czech League of Human Rights, Statewatch, Human Rights Centre, KISA, Antigone, Human Rights Monitoring Institute, Netherlands Helsinki Committee, Helsinki Foundation for Human Rights, APADOR, The Peace Institute, Rights International Spain.