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HFHR approaches prosecutor regarding murder suspect’s right to lawyer

The Helsinki Foundation for Human Rights has sent a letter to the Circuit Prosecutor of Świdnica concerning a man suspected of murdering a 10-year-old Kristina in Mrowiny. The Foundation decided to intervene in this case when the media reported that no defence lawyer had been appointed for the suspect. In its letter, the HFHR asks whether the suspect has been assigned a defence lawyer and what measures have been taken to ensure that the man is assigned a defence lawyer so that all his rights under national and international law are safeguarded.

The Foundation points out that law enforcement’s or court’s failure to designate a defence lawyer may constitute a violation of the Constitution of the Republic of Poland, the European Convention on Human Rights and the Code of Criminal Procedure. Such an omission may also be contrary to the Access to a Lawyer Directive and the Legal Aid Directive.

Legal basis

In the letter sent to the Circuit Prosecutor, the HFHR referred to Article 42(2) of the Constitution of the Republic of Poland, according to which everyone against whom criminal proceedings are conducted has the right to a defence at all stages of the proceedings. The Constitutional Tribunal held that this right is vested in every person, from the moment of instituting criminal proceedings against them and until the final judgment is delivered, and that the right also exists at the stage of post-conviction proceedings.

In the HFHR’s view, in the context of the right of a defence, particular attention should be paid to the Access to a Lawyer Directive and the Legal Aid Directive, which oblige the Member States, including Poland, to ensure above all that a defence lawyer is provided before the first interview. A failure to appoint a defence lawyer may constitute a breach of EU law.

The HFHR also invoked the European Convention on Human Rights, according to which the absence of a lawyer may constitute a violation of Article 6. The Foundation quoted the judgment of the ECtHR in Salduz v. Turkey, in which the Court pointed out “that in order for the right to a fair trial to remain sufficiently ‘practical and effective’ … Article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police …”. The HFHR also referred to the ECtHR’s judgment in Płonka v. Poland, in which the Court found a violation of Article 6(1) in conjunction with Article 6(3) ECHR. In Płonka, the applicant signed a transcript of her interview, acknowledging that she had been informed of her right to be assisted by a lawyer and to refuse to give testimony. However, the ECtHR considered that this was not a clear and unequivocal waiver of the right to a defence lawyer, in particular as the applicant pleaded guilty at the hearing in the absence of a lawyer. Furthermore, the applicant was an alcohol addict and thus found herself in a situation of vulnerability during the interview. She withdrew her previous statements in court, but it was police officers’ statements that influenced her conviction and the final court decision.


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