Over the years, the problem with the excessive usage of temporary arrests in Poland has been constantly increasing. By 2023, they accounted for an average of 11.5% of the full population of inmates, which clearly indicates the complexity of the situation. Moreover, the number of people in custody for a long time is besides increasing, exceeding a two-year period and more, which straight correlates with extended preparatory procedures. The consequence to this issue is the Ministry of Justice's declaration of planned changes, not only aimed at reducing the number of prisoners but besides temporarily arrested. Lawyers agree that specified a direction would be beneficial while recalling the possibilities offered by the Electronic Surveillance System.
An alarming image of the situation is illustrated, for example, by the Helsinki Human Rights Foundation study from the erstwhile year, entitled “About a standard that did not take hold (in Poland)”. The analysis of the practice of utilizing provisional arrests in the light of the provisions of the European Convention on Human Rights clearly indicates a worsening situation. The data presented shows that within 5 years, to 2022, the number of detainees for a longer period during the investigation or investigation (over 12 months) increased from 103 to 291. An increase in the number of persons temporarily arrested for more than 2 years during the investigation period was peculiarly alarming. In 2014, there were only 2 specified cases, while in 2022 there were as many as 51. The statistic clearly show that the increase in the number of long-term detainees during the preparatory procedure is closely correlated with the prolonged duration of these procedures.
Dr Szymon Tarapata of the Jagiellonian University's Department of Executive Criminal Law notes that although it is possible to reduce the number of temporary arrests, this requires action on many fronts. It besides adds that the number of persons temporarily arrested is straight dependent on the number of applications made by the D.A., which in turn depend on the managers of the institution. He is besides afraid that, regardless of the prosecution's policy, the courts consistently accept about 90% of specified proposals.
The Ministry of Justice is directing its efforts towards making changes. Maria Ejchart, acting as Deputy Minister of Justice liable for the prison area, is convinced that reducing the number of prisoners to about 55-60 1000 is attainable, but stresses that this requires long-term effort. He points out that 40 percent of the prisoners in Poland are persons with short-term penalties under 2 years for offences specified as petty theft or traffic offences. The question of whether specified people should go to prison, or whether it would be more beneficial to make an electronic surveillance strategy and another forms of punishment outside prison – are issues that inspire her interest.
Ejchart besides acknowledges that the chronicity of the usage of provisional arrest is an crucial problem. The Deputy Minister stresses that the persons arrested temporarily represent more than 10 percent of the full number of prisoners.
If we look at history, the problem of temporary arrests is not new. Already in 2001, Polish prison facilities hosted 78.7 1000 prisoners on average, of which 24 275 were temporarily arrested – almost a 3rd of the total. This trend was peculiarly worrying, as it was almost balanced with the number of convicted persons. This problem has been considered serious, both at national and global level. Despite taking certain steps to limit the usage of provisional arrest, abuses in this area have not been completely eliminated.
Despite any progress, Poland continued to be exposed to adverse judgments, specified as the judgement of 18 October 2018. The Storm case against Poland. The European Court has stressed that frequently judicial decisions concerning the interim arrest were based on besides general grounds, without taking into account the circumstantial conduct of the fishy during the proceedings. besides the judgement of 30 October 2023 ordered Poland to pay compensation for besides long detention of Catherine P., which was a violation of the European Convention on Human Rights.
– It is no secret that since 2016 there has been force and even guidance for prosecutors to apply as frequently as possible for temporary arrest – he recalls. He adds that the number of temporary arrests is closely dependent on the number of applications made by the D.A., and on who manages the institution. It besides regrets that regardless of the policy of the prosecution, courts invariably approve about 90% of specified proposals. “In specified a situation, the increase in the number of applications had to consequence in an increase in the number of temporary arrests,” stressed prof. Tarapata.
The court shall, in accordance with the prosecutor's request, decide on provisional detention, taking into account the request to guarantee the appropriate conduct of the trial. At the phase of the investigation, the provisional arrest may be cancelled or replaced by another milder preventive measure, including by the prosecutor. Temporary arrest is 1 of the most stringent preventive measures in the Polish legal system, which should only be applied if another preventive measures are insufficient (in accordance with Article 257(1) of the Code of Criminal Procedure).
– Inferring a contrario, reaching for this most aggravating penal measurement should be preceded by consideration of the anticipation of ruling a non-insulation measure. So much for theory. Regardless of the guarantees contained in the Constitution or legal acts relating to the work to comply with the rule of ultima ratio of criminal law, this measurement is frequently abused, both in the context of the frequency of its ruling and the dimension of its duration – says Dr. Izabela Jankowska-Prochot, expert at the University of WSB Merito in Warsaw.
Although a temporary arrest is applied to persons who, according to the law, are innocent and should be treated as a last resort, the prosecution frequently requests its application, and courts usually agree to these requests in over 90 percent of cases. According to Dr. Jankowski-Prochot, the main reason for this phenomenon is the fact that the temporary arrest best fulfils the procedural functions, providing protection against the anticipation of the suspect to commit the crime again, to escape it, to hide himself, to destruct or to forge evidence, and to exert force on witnesses or fellow defendants. It is frequently utilized ‘prophylactically’, although it would be possible to accomplish these objectives without placing the accused in custody, given the circumstances of the case.
It is besides widely known that the temporary arrest allows both investigators and courts to access the accused almost at any time, which in practice facilitates the conduct of various activities in preparatory or judicial proceedings.
– The most pragmatic action to change this situation would be to change the guidelines for prosecutors – says Prof. Szymon Tarapat. But he reserves that if the prosecution becomes an independent body in the future, then possibly specified guidelines will not be needed and prosecutors will make rational decisions themselves.
The question of the usage of electronic bracelets has been discussed for any time. As of 1 January 2023, there are changes in electronic surveillance, which allows for more frequent use. It is now possible not only to apply it to persons sentenced to imprisonment not exceeding 1 year and a year and a half, but besides to those who stay to service part of the conviction up to 1 and a half years, provided that this is not related to the recidivism. In addition, persons sentenced to 2 or more non-merging prison sentences may do so in the framework of electronic surveillance provided that the sum of those penalties does not exceed 1 year and 6 months, unless the accused has remained in prison for up to 1 and a half years.
What about temporary custody? According to the authors of the study published by the Krakow Criminal Law Institute last year, the usage of home arrest as part of an electronic surveillance strategy would be a worthy solution. They indicate that specified a solution is practiced in another countries specified as England and Wales, where specified a strategy has been applied since the 1990s. They believe that specified an instrument would let for the appropriate conduct of proceedings to be ensured to a greater degree than the current measures of imprisonment, without requiring the suspect to be isolated in prison.
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