Defending theHuman Rightto a Fair Trial
March 17, 2017
One of the main issues with pre-trial detention has to do with its length. As we showed in our regional report on the use of pre-trial detention in the EU, too often people who have not been convicted of any crime spend several weeks in detention. At times, the detention can last months, and even years, without any trial. Our partner and LEAP member Helsinki Foundation for Human Rights has shared with us a case from Poland, where a person spent about eight years in remand.
Michał started to be detained pre-trial in mid-May 2009. The pre-trial detention decision was consecutively extended no less than 29 times, and each time the criminal court would repeat the same justifications: a) a severe penalty is to be imposed on the defendant, if he is found guilty, b) prima facie evidence indicates that he had committed the imputed offences and c) the defendant risks to pervert the course of justice. However, none of the courts has ever indicated how the man could have possibly interfered with the proceedings lasting for almost eight years. In the end, Michał has been detained for seven years and ten months despite the fact that the case was sent to a retrial and the non-final sentence of 10 years of imprisonment was not challenged by the prosecution.
After being approached by Michał’s lawyer, HFHR submitted an opinion to the Court of Appeal in Warsaw, denouncing the over-lengthy detention and referring to the pre-trial detention standards developed in the jurisprudence of the European Court of Human Rights (ECtHR). In their opinion, HFHR considered that pre-trial detention of a duration of nearly eight years is a clear violation of the European Convention on Human Rights.
ECtHR: pre-trial detention is applied excessively in Poland
The ECtHR has found on many occasions that Poland violates the right to trial within a reasonable time or to be released pending trial (Article 5 (3) of the Convention). These especially concerned situations where domestic courts justified the prolongation of pre-trial detention citing the gravity of charges and using general statements without referring to specific facts of the case. The ECtHR also noted that the gravity of charges and a threat of a severe penalty may not by itself justify the application of the most severe preventive measure, whereas the prolongation of detention may not be applied in anticipation of a penalty of imprisonment.
In Kauczor v. Poland (2009), the ECtHR ruled that the excessive use of pre-trial detention in Poland is a structural problem consisting in the “application of a practice that is inconsistent with the Convention”. HFHR has also raised this issue many times: in 2016, it published a very detailed report, and every year the Foundation submits to the courts several detailed legal opinions on the violation of the Convention’s standards in specific cases. Such opinions usually put an end to the application of the most severe preventive measure.
Does Michał have any chance to be released pending trial?
“The case of Michał is not different from [other cases] involving infamous record long pre-trial detention orders that are the subject of judgments issued by the European Court of Human Rights against Poland”, claimed Piotr Kubaszewski, a HFHR lawyer. The case of Kauczor v. Poland involved a man charged with manslaughter, whose pre-trial detention order was revoked by a court after nearly eight years in the course of pending proceedings.
“Furthermore, the application of pre-trial detention against Michał is even more inconsistent with the Convention given that under the prohibition of the reformatio in peius he may be sentenced to a maximum of ten years’ imprisonment”, said Piotr Kładoczny, secretary of the Board. “Regrettably, despite our opinion, the Court of Appeal in Warsaw upheld the application of the most severe preventive measure against Michał for another three months”, added Mr Kubaszewski.
As with all of our guest posts, the views represented are of the author and may not reflect the views of Fair Trials.
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