Effective Defence in the Pre-trial Detention Proceedings (Remarks in the Light of the Judgment of Strasburg Tribunal of January 15, 2008, Łaszkiewicz v. Poland)

Abstract

The article analyzes fundamental problems of the effective participation of the defence counsel in the pre-trial detention sessions in the Polish criminal procedure. One of the last judgments of the Strasburg Tribunal (Łaszkiewicz v. Poland case of January 15, 2008, ECHR nr 28481/03) constitutes the background for the deliberation. Violation of article 5 § 4 was announced because the procedure of the judicial application of the detention in preparatory proceedings in the Polish 1997 Code of Criminal Procedure does not fulfil the requirements of the adversarial procedure based on the principle of equal weapons. According to the Polish procedural regulations, the court grants the defence access to the files of not only preparatory proceedings but also or even most of all, to the detention motion, upon the approval of the prosecutor. Those regulations constituted basis for the recognition of the complaint by the Strasburg Tribunal. Based on the statistical data, author analyzes the reasons of weakness of the judicial control over the detention in the provisions of the 1997 Code of Criminal Procedure and reaches to the procedural practice based on the provisions of the previous Code of 1969. He indicates the “mudded” responsibility between the organs deciding upon the detention: applying prosecutor and deciding court. The article also deals with the problem of favor procuratori that is the need of some cooperation between the advocate and prosecutor necessary for the effective defence in the preparatory proceedings. Author emphasizes dangers arising from an increasing significance of the operational and identification actions in the Polish criminal procedure. He calls for the amendment of the provisions of the 1997 Coder of Criminal Procedure challenged by the ECHR.