Paweł Jabłoński: courts refuse pre-trial detention more often. What doesn’t he say?

The issue of the use of pre-trial detention by courts appeared in public discussion on the occasion of the release of Włodzimierz Karpiński, former Minister of Treasury in the PO-PSL government, suspected of corruption. PiS politicians accuse the Speaker of the Sejm, Szymon Hołownia, of “letting him go.” How we explained in Konkret24these allegations are unjust: Karpiński was released from custody after nine months based on the prosecutor’s decision, after Marshal Hołownia issued a decision on Włodzimierz Karpiński taking up the mandate of MEP.

On November 19, politicians talked about the Włodzimierz Karpiński case and the problem of temporary detention in “Rymanowski’s Breakfast” on Polsat News. To the comment of PiS MP Paweł Jabłoński that it is the courts that decide on provisional arrest, KO MP Robert Kropiwnicki replied: “In this system you have created, the prosecutor decides to a large extent.” He added that “there is one percent refusal just because [sędzia] there are no conditions to examine the files.” Przemysław Wipler from Konfederacja, in turn, stated that “pre-trial detention is abused in Poland, judges reject nine out of ten applications for detention due to opportunism and for their own safety.” According to Wipler, “the fact that someone he has been in custody for nine months, he has not committed murder, he is not a threat and there is no indictment brought against him in court, this is a scandal.

To which MP Jabłoński, turning to the representatives of other parties present in the studio, replied: “The number of decisions refusing to apply pre-trial detention has increased during our term of office. Courts refuse to do so much more often than they did during your rule“.

Statistics from the prosecutor’s office and the Ministry of Justice confirm this, but also show – which the PiS politician did not say – that during the rule of the United Right, the total number of prosecutors’ requests and court decisions on temporary arrest increased. And the number of people who spent more than a year in pre-trial detention increased.

The use of pre-trial detention by courts has been in force in Poland since 1997, when the current constitution came into force. In art. 41 section 3 recorded:

The prosecutor submits a request to the court to apply pre-trial detention “in order to secure the proper course of the proceedings and, exceptionally, also to prevent the accused from committing a new, serious crime.” Pre-trial detention can only be applied when “the collected evidence indicates a high probability that the accused has committed a crime” (Article 249, paragraph 1 of the Code of Criminal Procedure).

In 2010, there were prosecutorial requests for temporary arrest 25.7 thousand. , in 2015 – 13.7 thousand.; the number of applications accepted by courts also decreased – respectively 23.1 thousand. down 12.6 thousand.

After the United Right took power, there was an increase in the number of applications for pre-trial detention submitted by prosecutors: z 13.7 thousand. in 2016 to 22.9 thousand in 2022. The number of applications accepted by the court also increased: in 2016 there were them 13.8 thousand, and in 2022 already 19.9 thousand.

However, the number of refusals during the PO-PSL government in 2010 was: 2605in 2015 – 1075. After the change of government, the trend was reversed: in 2016 it was 1381 refuse, and in 2022 – 2981. These data confirm the words of Paweł Jabłoński that “the number of decisions to refuse to apply pre-trial detention has increased during our term of office.” Also the so-called the success rate of prosecutor’s motions is lower than in the times of PO-PSL – then it was at the level of 90%. (i.e. the courts accepted 90% of prosecutors’ requests for pre-trial detention), and during the rule of the United Right in 2022 it dropped to 87%. This does not change the fact that the number of decisions to apply pre-trial detention has increased in recent years.

The authors of the Helsinki Foundation for Human Rights (HFHR) report published in July 2023 indicate that the number of decisions on pre-trial detention has stabilized at a high level. In the report “About a standard that was not adopted (in Poland). The practice of applying pre-trial detention in the light of the provisions of the European Convention on Human Rights” wrote: “Although in the last five years the courts have increasingly refused to apply pre-trial detention, due to the increased number of prosecutor’s requests for an isolating preventive measure, the number of issued decisions to apply pre-trial detention increased significantly between 2018 and 2019 and then remained at a similar high level.

According to HFHR calculations, in the years 2018-2022 the share of granted applications for pre-trial detention decreased only by 3.4 percent., while the increase in the number of submitted applications amounted to 16.4 percent. “These data may suggest that the courts – despite a decrease in the percentage of requests for pre-trial detention they granted – were still too rigorous in assessing prosecutors’ requests, which, in the face of the increasing activity of public prosecutors in submitting them, led to an increase in the number of decisions to apply an isolating preventive measure. “- emphasized HFHR experts.

As a result, there was an increase in the number of pre-trial detainees. During the PO-PSL government, the tendency was the opposite – in 2008, there were such people 9913in 2015 their number decreased to 5140. After the change of power in 2016, there were more people temporarily arrested 4917in 2020 – 8878and in 2022 – 8453. The HFHR’s report concludes that the court exercises poor control over this preventive measure, and the number of people in pre-trial detention is “a function of the number of prosecutor’s requests.”

HFHR experts also draw attention to the issue of the length of pre-trial detention in Poland. Pursuant to Article 263 of the Code of Criminal Procedure, pre-trial detention cannot exceed three months; in a situation where “due to the special circumstances of the case, it was not possible to complete the preparatory proceedings” during this time, the court may extend the detention to one year, and “the total period of pre-trial detention until the first judgment is issued by the court of first instance may not exceed 2 years.” However, there is an exception in paragraph 4: the appellate court may decide on a longer period of pre-trial detention, e.g. in connection with “the performance of evidentiary activities in a case of particular complexity”.

“The use of pre-trial detention pursuant to Article 263, paragraph 4 of the Code of Criminal Procedure (…) is the norm,” warns the HFHR. This standard applies especially in recent years. In the years 2013-2015, the number of people in temporary custody staying in isolation for more than two years did not exceed 41; there were such people in 2017 97in 2022 already 240.

“One may get the impression that the code’s protection against excessively long use of pre-trial detention in preparatory proceedings has degraded over the last five years and did not constitute an adequate guarantee of respect for citizens’ right to personal freedom,” we read in the HFHR report. Experts warn that such a dynamic increase in the number of people staying in pre-trial detention for a long time “will lead, in particular, to the occurrence of a much larger number of extreme cases than before, when suspects will remain in penitentiary isolation for many months or even years before an indictment is brought.” .