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Guest Post: New Polish Criminal Procedure Code

8718355095_9f1c2af051_bThe revised Polish Criminal Procedure Code enters into force today, and Małgorzata Mączka-Pacholak (from LEAP Advisory Board Member Mikolaj Pietrzak's office) covers the key changes and talks about the current state of implementation of the EU Directive on Access to a Lawyer. 

  1. Amendment to the Code of Criminal Procedure (2013 & 2015)

 In 2013 and 2015, the Polish Parliament adopted amendments to the Polish Code of Criminal Procedure (CCP) that will enter into force on July 1, 2015. The amendments introduce fundamental and complex changes to the course of criminal investigations and court proceedings, as they modify regulations governing some basic principles, such as the presumption of innocence and the principle of material truth. The amendments introduce new rules aimed at reforming the criminal procedure so as to make it more adversarial in nature. The most fundamental changes in the CCP relate to the rules regarding:
a) Conducting investigations, preparing the act of indictment, the evidence-gathering process by the prosecution authorities, and plea bargaining;
b) the process of criminal trials, where the Court will not be entitled to play as active a role in the evidentiary part of proceedings,
c) the new, very active role of the prosecution and defence, in accordance with the “equality of arms” principle (especially with reference to the evidentiary part of the proceedings);
d) new safeguards for the right to defence - at the court stage of the criminal proceedings everyone (regardless of means-test or any criteria regarding vulnerability) will be entitled to a state-appointed defence lawyer, while not only advocates, but also legal advisors will be entitled to act as the defence counsel,
e) limitations to the admissibility of illegally obtained evidence.
The amendments raise concerns among both theorists and practitioners of criminal law, particularly among prosecutors, who typically show no greater activity than in the trial stage of criminal proceedings, under the strongly inquisitorial procedural regime in place up to this point. The entry into force of the amendments was not postponed, but it was argued that it could allow the professional participants of criminal trials to better prepare for their duties in the new realities of the criminal proceedings.

  1. Amendment to the Criminal Code (2015)

In 2015, the Polish Parliament adopted an amendment to the Criminal Code that will also enter into force on July 1, 2015. The amendment introduces complex changes reflecting the principles of the State’s penal policy. The reform is aimed at increasing the frequency of using fines and penalties to restrict liberty by the Courts, whilst reducing imprisonment (custodial) sentences. Currently in Poland more that 60 % of prison sentences are suspended (non custodial). According to the authors of the reform – this weakens the deterrent and educational impact of criminal punishment as such. Custodial sentences are to be reserved for perpetrators of very serious offenses. The reform of the Criminal Code also expands the scope of applicability of the electronic surveillance system (tagging).

  1. Implementation of the EU Directive on right to access to lawyer (2013/48/EU)

The deadline for the implementation of the directive is 27 November 2016. Flaga_RP_z_UENo substantive steps directed specifically at a comprehensive implementation of the EU directive 2013/48/EU have yet been undertaken by the Polish authorities. At the end of May 2015, the Ministry of Justice adopted an ordinance on establishing a list of lawyers available to provide legal services via legal aid under the new rules of CCP, safeguarding the right to defence. Earlier this year, article 245 of the CCP regarding contact with a defence lawyer at the very first moments of the criminal proceeding, was amended. This amendment is intended to ensure realisation of the right of an arrested person to receive assistance of a lawyer through duty shifts of advocates and legal advisors. The parliamentary Criminal Law Codification Commission by the Ministry of Justice recommended, in February this year, to refrain from implementing further amendments to the CCP (implementing further provisions of the EU Directive on the right to access to lawyer), before other EU directives, relating to the right of the defendant, are adopted. The Commission’s objective is to implement these changes en masse to ensure maximum coherence, so further legislative action on this matter has (intentionally) not been taken by the Commission at this stage.

This is a guest post written by Małgorzata Mączka-Pacholak and may not reflect the views of Fair Trials.

This information was also provided as a memo to form the basis of Mikolaj Pietrzak's presentation at the ECBA Spring Conference 2015, Bucharest.

Małgorzata Mączka-Pacholak is an advocate at Pietrzak Sidor & Partners, where Mikolaj Pietrzak, our LEAP Advisory Board member for Poland, is a partner. You can read more about our Mikolaj Pietrzak and our LEAP Advisory Board members here.

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