Zagrożenie surową karą jako samodzielna podstawa stosowania tymczasowego aresztowania w świetle orzecznictwa Europejskiego Trybunału Praw Człowieka

Abstract

The issue of the correctness of the application of provisional arrest represents the bulk of case law addressed by the European Court of Human Rights (ECHR), which considers each case through the prism of conventional standards. In accordance with article 5 § 1 c) Convention for the Protection of Human Rights and Fundamental Freedoms, remand shall apply to „the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fl eeing after having done so” Against this background is the issue of threat of severe punishment (article 258 § 2 p.p.c.) as an independent rationale for the provisional application of arrest. Important, therefore, is that this provision does not provide for the application of on remand in custody on grounds of threat of severe punishment. In both ECHR case-law and related literature, the view is accepted that threat of severe punishment may be justifi ed on the presumption that the accused will interfere with the investigation in its early stages. However, with the passage of time and the development of evidence this argument loses ground. ECHR allows use of the premise but only under certain conditions: availability of supporting evidence, the time at which it will be applied during the provisional stage, the length of detention period envisaged, whether the application of provisional arrest can be justifi ed in preparatory proceedings over time. Hence, recognition by the Supreme Court that the threat of severe punishment is a premise for the provisional application of an arrest warrant is at least questionable, especially in view of the revision of article. 258 § 2 p.p.c., and new interpretation of the provision that denies the wording expressed by the Supreme Court in its resolution of 19 January 2012. Therefore, it should be adopted that the interpretation of articles. 258 § 2 p.p.c. presented by the Supreme Court in its previously cited resolution, confl icts with the conventional standards referred to in article 5 § 1 c) of the ECHR.