Pre-trial detention in Poland

Pre-trial detention is the most important measure for safeguarding proper procedure of criminal proceedings in Poland. The Polish Code of Criminal Procedure stipulates that the pre-trial detention arrangement is only permissible if the purpose cannot be achieved by other measures. Thus the Polish Code of Criminal Procedure and others provides police supervision as well as the prohibition to leave the country (with the additional ability to seize your passport). In practice, pre-trial detention in Poland is, however, more often arranged as this would be necessary in respective cases.

The conditions for the use of pre-trial detention

Basically, the pre-trial detention may be arranged if there is a reasonable risk that the accused intends to withdraw the criminal proceedings by escaping or hiding. This is particularly true when the identity of the suspected person cannot be determined or if he has no permanent place of residence in Poland. In addition, the accused can be placed in pre-trial detention if there is a reasonable risk that he will force witnesses to false statements or in some other illegal way will attempt to obstruct the course of the criminal proceedings. Furthermore, the arrangement of pre-trial detention is allowed in case of a high probability that the accused intends to perpetrate a new felony.

The Polish Code of Criminal Procedure provides moreover the application of pre-trial detention as justified, if the suspect is accused to have committed an offense, which is punished with imprisonment with a maximum of at least 8 year’s imprisonment.

The arrest warrant and the right to appeal

Pre-trial detention may only be ordered by judicial decision (arrest warrant). This decision has information about the accused of the alleged offense, on its legal qualification as well as on the legal basis for the application of pre-trial detention. In addition, the arrest warrant specifies the length of the pre-trial detention, where the last day of the period must be precisely named, as well as the facts justifying the existence of the above conditions. In this context, of special importance are the explanations as to why the arrangement of another protection measure is not to be taken into consideration.

Any order for pre-trial detention should be in the framework of a complaint with the court of the II. Instance be checked, and this is also due to the fact that the pre-trial detention in Poland disproportionately often is applied. Each arrangement of pre-trial detention should be reviewed within the frames of an appeal at the Court of II instance, especially due to the fact that the pre-trial detention in Poland is used disproportionately frequently.

In any case, it is important that immediately following the arrest the person concerned or the members of his family contact an experienced defense lawyer, if this after the provisional arrest has not yet been done. Only a criminal lawyer experienced in Polish criminal proceedings is capable of creating a complaint with the necessary arguments to convince the appeals court to lift the arrest warrant against the accused within the legal period of 7 days.

Other tasks of the criminal lawyer during the pre-trial detention in Poland

The defense attorney has still further important tasks to do during the period of detention: on the one hand he has to check the conditions of detention. In situations where they do not meet legal requirements, he will then turn on behalf of accused persons with a claim or appropriate amendments to the administration of the correctional facility, to remedy the situation. On the other hand, he has to obtain permission for the visit of a close family member. These will be processed on the basis of the provisions of the Polish penal law on the basis of a corresponding application and may be rejected if there is a danger that the visit would be used to impede the criminal proceedings. In this situation the defense attorney will appeal court, to allow the visit with the detainees still close relatives.

In this context it is important to note that in the event of difficulties with obtaining the permission for a visit to the prison, there is a possibility to obtain a permit for a maximum 15-minute conversation with the detainee ion the occasion of a scheduled court hearing.

Length of pre-trial detention and prison examination

Pre-trial detention is ordered by the judge in Poland usually for a period of 3 months, where the beginning of this period is the date of the provisional arrest. If due to the existence of special circumstances in the respective criminal case the investigation cannot be completed within three months, the judge basing on a request of the public prosecutor’s Office has the possibility to extend the pre-trial detention for further 9 months to 12 months in total. Please note, that the duration of pre-trial detention up to the termination of the I. instance proceedings cannot exceed basically a period of 2 years.

In Poland, the responsible for reviewing the arranged security measures, as well as the measure of pre-trial detention is the same body that leads the proceedings at the moment of the application request. This means that during the investigation it is the public prosecutor who decides on the request for waiver of the pre-trial detention, however, after submission of the bill of indictment to the competent court, the decision is up to the judge.

The waiver request of pre-trial detention or on change of pre-trial detention to another measure securing proper conduction of criminal proceedings is possible at any time. To note is that against the negative decision of the public prosecutor or the court, a complaint is only admissible if the renewed request for detention was submitted after a period of at least 3 months from the date of resolution.

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