Prawa człowieka a zatrzymanie i tymczasowe aresztowanie w polskim prawie i praktyce jego stosowania

The social and political changes in Poland led to abolition of Realsozialismus which is now being replaced with a democratic country governed by Rechtostaat (Art. 1 of the Constitution) from aspirations after national freedom and respect of human rights in public life. The problem of protection of individual freedom made itself particularly felt here; it is also subject of the present paper which discusses the protection of individual subjectivity in the light or the institutions of arrest and detention awaiting trial. Until quite recently, Poland was one of the many Communist countries where human rights were violated much too often, also on the occasion of arrest and detention awaiting trial. Many factors were conductive to this situation, such as faulty legislation; inadequate socjal consciousness; depreciation of the authorities, law and other norms; prevalence of repressiveness in dealing with social pathologies; and absence of social control of the activity of law enforcement agencies, the police and prison staff in particular. But the weakness of legal protection of individual resulted also from a strong relation of the activities of practically all governemental and social bodies those dealing with prosecution and investigation as well as administration of justice included, to politics. This political nature of functioning of those agencies, resulting monopolistic power of the Communist party, led to a limitation of the independance of the judiciary. The adoption of new political principles of Polish State and election of the new Parliament (on June 4, 1989), together with formaion of the non-Communist Cabinet, created the conditions for a new criminal policy based step by step on European standards. The institutions of arrest and detention awaiting trial well illustrate the pathology of functioning of the agencies of legal order and the direction of changes taking place in criminal policy. They also demonstrate a specific paradox; the Polish people’s great devotion to freedom and the simultaneous unfeeling tramling of that freedom. The two institutions have been discussed from the viewpoint of protection of human rights on both the normative plane and in the practice of the years 1980–1990. Arrest is one of the forms of coercion which consists in a short-term deprivation of liberty. The Polish legal system provides for procedural, preventive and administrative arrest. Each of these types has a separate legal regulation (procedural arrest, the Act of 19 April 1969 – Code of criminal procedure; preventive arrest, the Act of 6 June 1990 on the police and another Act bearing that same date on State Protection Office, together with their executory acts; and administrative arrest, the Act of 28 October 1982 on education to sobriety and control of alcoholism). Moreover, each type of arrest is to serve different aims (procedural arrest, protection of propriety of criminal proceedings; preventive arrest, protectton of order and public safety, human life and health, and property; and administrative arrest, control of alcoholism). Also different are the conditions of arrest, the agencies authorized to apply it, and the period for which a person can be detained. The present authors focus mainly on preventive arrest related to the administrative function of the police as guardian of order. That form was particularly abused and human rights were often violated in the course of its execution. Preventive arrest has recently undergone significant changes both in the normative sphere and in practice. As compared to the former one, its present regulation: 1. defines its legal grounds with greater accuracy; 2. broadens the detainee’s rights; and 3. introduced judicial review. This has contributed to the curbing of arbitrary police activities in this sphere. Duration of arrest is specified in the Constitution (Art. 87) and in the provision of Art. 207 of the code of criminal procedure. It cannot be londer than 48 hours from the moment of detention, and 24 hours in the case of administrative arrest (Art. 40 of the act on education to sobriety and control of alcoholism). Violations of these provisions have so far been frequent. In the case of procedural and preventive arrest, the rights of the detainee are the same. According to the valid provisions, the detainee has the following rights among others: the right to be informed in writing as to the time and reasons of arrest; the right to be advised as to the possibility of complaining to the court against the application of that measure, and to the public prosecutor against the way of its execution: the right to health care. The catalogue of the detainee’s rights is insufficient: e.g. it does not contain the right, to legal assistance (conseul). What particularly impairs the protection of the detainee’s personal interests is the absence of by-laws concerning the execution of arrest in the police house of detention, as the duplicated set of provisions called ,,By-laws for Detainees”, introduced by an order of the Chief of Civic Militia in 1959, hardly comes up to the standards. The provisions now in force have broadened the range of legal means of vindication of his rights that are at the detainee’s disposal. Particularly notable here is the reintroduction of the institution of habeas corpus. Namely, the detainee has been granted the right to complain to the court against arrest (Art. 207 point ”a,, of the Code of criminal procedure) and to the public prosecutor against the way of execution of arrest (Art. 15.7 of the Act on the police). If the arrest has been obviously unjustified, the detainee is due indemnity from the Treasury and monetary compensation of moral injury (Art. 487 of the Code of criminal procedure); the same concerns the situation where he has suffered damage or injury as a result of an improper execution of arest (Art.Art. 417-419 of the Civil code). Besides, the detainee may approach the court with a claim in virtue of protection of his personal interests (Art.Art. 23 and 24 of the civil code). In the latter half of 1990, arrest was executed in 798 police houses of detention all over the country, that is fewer by a whole 71,7 per cent as compared to 1989. The recent changes have made it possible to abolish the division of houses of detention into categories (of which there used to be three according to the duration of detention). The number of arrests amounted to over 500,000 a year at times (with the peak of 572,220 in 1982 – see Table 1). Starting from 1988, it gradually went down to nearly one-third of its original value which reflects above all the general liberalization of the police approach towards crime and other deviations. In the period under analysis, the living conditions in the police jails were – and still are primitive and many a time offensive to human dignity. This has been confirmed by the present author’s own study and two surveys of those jails carried out by the National Ombudsperson. An acute problem is the right to apply constraint during and upon detention. It is regulated by provisions of the police Act and an Ordinance of the Council of Ministere of 17 September 1990 which specifies the situations, conditions and ways in which direct coercion can be used by the police. Without questioning the grounds for such coercion, not only the legal conditions of its application but also the faults or even abuses in this sphere have been pointed out. What the authors find the most severe violation of human dignity are neither humiliating conditions of isolation nor illicit prolongation of detention but first and foremost beating of a person after he has surrendered to the power of enforcement officers. Cases of beating have again started growing in number this year (as has been found by the Helsinki Committee in PoIand and the National Ombudsperson). The activities of the public prosecutor’s office in this sphere have been criticised in the article. The paper also discusses the consequences of the introduction of Art. 209 of the Code of criminal procedure which made it possible to commit to the police jails persons detained awaiting trial (for up to ten days or three months), and even those sentenced to a prison term (of up to six months). This provision has recently been quashed, but the police press for its reintroduction. Until quite recently, the police jails were submitted to no supervision whatever. The public prosecutor’s. office remained passive and carried out but most perfunctory supervision, if any. This situation hardly served the protection of detainees’ rights. It was only improved in 1988 when the police jails were submitted to supervision by the Ombudsperson and later also by Commissions: of Administration and Internal Affairs of the Diet and of the Rule of Law and Human Rigths of the Senate, and by other agencies and institutions. Also pre-trial detention is a serious interference with human rights. It is one of the preventive measures provided for by the Code of criminal procedure, and at the stage of execution – by the Code of execution of penalties and the Ordinance of Minister of Justice of 2 May 1989 – by-laws of execution of detention awaiting trial. The discussed measure can be applied by the court, and before the indictment also by the public prosecutor. The present authors find the latter’s right to apply pre-trial detention contradictory to provisions of international law, the covenants ratified by Poland included (see Art. 9,3 of the International Covenant on Political and Civil Rights). The legal provisions fail to specify the upper limit of duration of pre-trial detention. The amendement of the Code of criminal procedure and the changed policy of application of dotention resulted in a fall in the number of those detained awaiting trial. There were 9,722 such detainees on July 31, 1989 (see Tables 4–5). There was also a radical drop in the number of persons detained for over 12 months: in 1990, as f

Communism · Constitution · Democracy · Dignity · Legislation · Parliament · Political science · Politics · Law · Polish Historical and Cultural Studies · Polish Law and Legal System

• Prawa więźniów w perspektywie europejskiej ostatnich lat

  Open Access•Dirk Van Zyl-Smit, Dirk Van Zyl-Smit Dirk Van Zyl-Smit et al.•Archiwum Kryminologii•2009

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