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Can pre-trial detention last for nearly eight years? HFHR’s opinion

The HFHR has submitted an opinion on a case of extensively long pre-trial detention to the Court of Appeal in Warsaw. The opinion referred to the pre-trial detention standards developed in the jurisprudence of the ECtHR. In our opinion, pre-trial detention of a duration of nearly eight years is a violation of the European Convention on Human Rights.

Do pre-trial means permanent?

The Foundation was approached by the attorney of Michał, a man put in pre-trial detention in mid-May 2009. So far, criminal courts have extended the period of his pre-trial detention 29 times, repeating the same justification: a severe penalty may be imposed on the defendant, if he is found guilty, there was strong prima facie evidence that he had committed the imputed offences and there was a risk of him perverting 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.

Strasbourg standard

The European Court of Human Rights has found on many occasions that Poland violated 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.

ECtHR: pre-trial detention is applied excessively in Poland

In the case Kauczor v. Poland of 2009 the ECtHR decided 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”. The HFHR has also raised this issue many times: in 2016, a detailed report was published, 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”, claims Piotr Kubaszewski, an 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.

“Further 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”, says 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”, adds Mr Kubaszewski.


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