Legal status of the accused in the light of the planned amendment of the Code of Criminal Procedure

On 5 December 2018 on the website of the Government Legislative Centre was on 5 December 2018 on the website of the Government Legislative Centre, a bill from 4 December 2018 amending the Act – Code of Criminal Procedure and some other laws[1], the aim, as pointed out by the Ministry of Justice, is, above all, to improve and speed up criminal proceedings and to prevent abuse of the procedural rights of parties which lead to the extension of proceedings. The draft proposed by the Ministry of Justice envisages, among other things, limiting the directness of evidence or reducing the formality of criminal proceedings.

Introduction

Amendment of the current law on 6 June 1997 - Code of Criminal Procedure[2] is justified and necessary, but its shape is finally proposed by the Ministry of Justice 17 January 2019 raises doubts as to the preservation of the fundamental rights of the defendant.

The greatest attention should be paid to such changes as the introduction of the principle of probative precision, the possibility of taking evidence under the justified absence of the accused or his defender, or of limiting the rule of his defender, or limiting the rule of ne peius.

1. Introduction of the principle of evidence precision

Under Article 170 k.p.k., which presents exhaustive catalogue of grounds for dismissing the evidence application by the court, the projector proposes to introduce additional section 6, which would read: ‘[an application for evidence shall be rejected if:] the application for evidence has been submitted after the procedural period specified by the authority, which has been notified to the party submitting the application’.

The proposed solution raises concerns in the light of the guarantees of the rights enjoyed by the accused, in particular the law resulting from Article 74(1) k.p.k., according to which in the course of the proceedings the defendant is not obliged to command his innocence, nor is he required to provide any evidence of his disadvantage, which is a consequence of the principle of presumption of innocence and the law resulting from Article 175k.p.k., i.e.

the right to silence. The use of this guarantee by the accused should not be at any stage of criminal proceedings (i.e. (preparatory proceedings and court proceedings) cause negative consequences for the accused.

In the light of the proposed amendment of the rules, the defendant in accordance with Article 378(1) k.p.k. would be required to submit any evidence within the time limit[7] days from the date on which the indictment was served, as he may lose his right to rely on it at a later date. At present, however, the legislature did not foresee any negative consequences for the accused for failing to fulfil that obligation.

It should be stressed that, at each stage of the proceedings, including the evidence provided by the prosecutor, the defendant should be able to submit evidence applications and not submit them within the time limit specified by the court or the judicial authority, should not give rise to any adverse procedural consequences, including a presumption of his possible liability.

It should be pointed out that the court has an obligation to examine material truth and this principle should be of paramount importance throughout the course of the proceedings. With regard to the above, it should be pointed out that the proposed solution may give the court an instrument to dismiss the evidence requests too freely.

Reasons under Article 170 k.p.k. is sufficient to discipline the parties during the proceedings.

The introduction of the principle of probative preclusion in order to improve the criminal process is not a good solution for the accused, who are legally granted guarantees which he can benefit from in accordance with the line of defence adopted at the time.

2.Interviewing witnesses in the absence of the defendant and his defender

Another significant change proposed by the project promoter to which it relates is the addition of Article 378a,which reads as follows: ‘If the defendant or the defender has appeared at the hearing and there is no evidence in the case file of service of the notice or of the summons, or if it is reasonable to believe that the failure to file was due to obstacles or other exceptional reasons, or if he has duly justified the failure to file, the court may conduct evidence proceedings in his absence and in particular examine witnesses who have appeared to the hearing’. Although the drafter, in the following part of the article, allows additional evidence to be carried out, the relevant request must be made at the latest at the time of the next hearing and should justify that the manner in which the evidence was carried out in the absence of the accused or the defence lawyer was in breach of procedural guarantees, in particular the rights of the defence.

Such a legal norm may significantly violate the defendant's right of defence.

After first because the defendant's right to attend the hearing provides, as the Ombudsman rightly states in his observations from 19 December 2018 to the project, one from the fundamental attributes foreseen under Article 42(2) the Constitution of the Republic of Poland and Article 6(3) ECHR[3] .

It is important that, when formulating the main principles of the right to question witnesses, the European Court of Human Rights[4] submits that the evidence should be carried out during a public hearing while the defendant is present, thus giving him the opportunity to challenge their credibility.

Any exception to this rule shall not prejudice the rights of the defence[5] .

Moreover, as Maria Kierska points out, if the conviction is based solely or to a decisive extent on the testimony of a witness to whom the accused was not given the opportunity to ask questions, both at the stage of the preparatory and judicial proceedings, the rights of the accused are so limited that they strike the right to a fair trial guaranteed under Article 6 ECHR[6] .

At this point, it should be pointed out that the drafter claims that the introduction of a legal standard in such a way does not in any way undermine the rights of defence.

This justifies that the proposed amendment only contains a solution to the possible conduct of evidence, rather than a hearing under the justified absence of the defendant or his defender. However, this view, in the light of the reasons already stated, cannot be accepted.

Next, it is appropriate to refer to the fact that the drafter is obliged to identify a breach of procedural guarantees and, in particular, of the rights of defence in the event of a request for additional evidence.

This also violates Article 42(2) Constitution of Poland[7] and Article 6(3) ECHR[8] , because it does not guarantee that the evidence which took place without the participation of the accused or his defender is carried out in any event.

After first This would depend on a unilateral decision of the court, and secondly, whether a further date for the trial on which the proceedings would take place would be possible (e.g.

a trial at which the court interrogates the witness in the absence of the defendant or counsellor, and then after hearing the witness, close the hearing by the court and issue a judgment, whether in a situation where the witness changes his residence and does not inform the court thereof).

In addition, whenever a hearing is conducted in the absence of the accused, who, for reasons independent of him, such as incorrect delivery of a notice of time to him, or when he has duly justified his non-profession, will constitute a breach of his right to participate in the trial and give the presumption that he may have been deprived of the opportunity to defend himself, in particular that the application for further proof must contain a clear indication of the breach of procedural guarantees.

At this point, it should be pointed out that the defendant should not suffer the adverse consequences of the errors of the employees of the court, as it does not affect their performance and there is no possibility that such a provision should justify the economics of the proceedings.

In such a case, the right of defence is an overriding good, and the conduct of proceedings and the conduct of evidence in the absence of the accused or defender must be exceptional and carefully considered by the court.

It is important that the conduct of the ordinary hearing without the participation of the accused in cases where none of the circumstances listed above has occurred under Article 376 K.p.k. orders that the case be considered to have had an absolute appeal, as determined under Article 439(1)(11) k.p.k.

(the case was identified in the absence of the accused, whose presence was compulsory)[9] .

In referring to the above, the introduction of the possibility of judicial action, including the hearing of witnesses in the absence of the accused or defender, despite the existence of force majeure, the failure to serve the notice of the date of the hearing or other justified reasons, is a solution contrary to applicable standards, case law and the position of doctrine.

3. Limitation of ne peius rules in criminal proceedings (Article 454 (k)

Current provision Article 454 k.p.k. provides that: (section 1) the appeal court cannot convict the defendant who has been acquitted In the first instances or for which In the first the instance has been released or conditionally discontinued the proceedings and (section 3) may not exacerbate the sentence by imposing a life sentence.

Projector proposed to repeal section 3 the current law, and Under section 1 introduce the possibility of being convicted by the appeal court of the defendant on whose condition discontinued the proceedings. With regard to the proposed amendment, it should be pointed out that the solution adopted by the projector, consisting of repealing section 3 under Article 454 k.p.k., where a prohibition on exacerbating punishment by granting life imprisonment is not appropriate, as this violates the principle of duality.

Should it be necessary to impose the strictest penalty provided for in the criminal code, the appeal court should revoke the judgment under appeal and refer the case back to the court for review, since, in such a case, the court must first the instance can then exacerbate the penalty, which gives the defendant the opportunity to appeal again.

The main objective of such a regulation is that, with the most severe penalty, the right of the accused to defend must be secured by ensuring duality.[10]. A similar situation arises when a court has ruled a conditional discontinuance of proceedings.

The conviction of the defendant in such a case would lead to a reform decision from which the defendant would no longer be able to appeal, which definitely justifies his right to ensure that the proceedings are two-instance.

4. Preparation of the grounds for the judgment on the form

Another significant change proposed by the drafter is the possibility of drafting judgments on the form. This is an idea to be critical.

The drafting of justifications on the established pattern may result in them being very general, condensed and written in a specialized, legal language, thus incomprehensible to a person who has not been represented by a defender or a professional proxy in the course of proceedings before a court.

It cannot be shared with the projector's view that such a formula would be clearer and clearer.

In the current state of the law, the justifications are drawn up in such a way that any person receiving them understands the grounds for the ruling, the reasoning of the court and what evidence was reliable for the court and who was denied this credibility. The shortening of the statement of reasons and bringing it to the form may lead to the party not interpreting its content properly and thus not affording itself the possibility of an effective remedy.

Furthermore, it should be pointed out that in multi-thread and multi-person cases, the drawing up of such a form makes it difficult to actually justify the decision of the court and may render the justification ill.

Furthermore, the court in the statement of reasons should not be restricted by the content of the form because each judge has a different way of formulating statements and drawing up a form; instead of facilitating and speeding up the work on the statement of reasons, it can in practice lead to a hindrance.

As regards the above, it must be agreed with the Court that Article 6(1) The Convention obliges courts to justify judgments accordingly. The reasons for the ruling show the parties that their case has actually been examined.

The courts, as well as other authorities, are obliged to give proper reasons for their judgment by showing the arguments which have decided to issue the judgment.

The reasons also show that the parties to the proceedings concerned have been heard and that the appeal can be brought effectively and that the contested judgment can be reviewed in a stable manner In the second instances. Only those rulings that give rise to reasons allow open judicial review[11].

However, where the position of the party decides on the outcome of the proceedings, it needs a specific and clear answer.

With regard to the above, it should be pointed out that the Court’s view that it is the duty of the courts to verify the main claims and arguments of the parties relating to the rights and freedoms guaranteed by national and international law, and that courts are obliged to examine them extremely rigorously and meticulously.

It is important that Article 6(1) does not require an appeal by the court (i.e. second instance) a more thorough justification of the judgment when that court indicates a specific legal provision to dismiss an appeal on a legal matter[12].

In indicating this, the proposal to draw up justifications on a form which may be too general, incomprehensible and not answer the arguments raised by the parties, which is contrary to the Convention's assumptions, should be criticised.

1. Hearing of the victim who did not complete the hearing 15 years, in cases of criminal offences committed with the use of violence or a threat of unlawful or referred to in Chapters XXIII, XXV and XXVI of the Criminal Code[13], without the help of a defender

In the current state of the law, the hearing of the victim in criminal cases involving a violent or unlawful threat or referred to in Chapters XXIII, XXV and XXVI k.k. (i.e. crimes against freedom, crimes against sexual freedom and morals and crimes against family and care) which were not completed at the time of the hearing 15 years, he conducts the court at a sitting in which the prosecutor, the lawyer and the victim's attorney are entitled to attend.

The drafter proposes to amend the above regulation, which removes the prosecutor, the defender and the victim's attorney from the right to participate in such a hearing.

This is a significant disqualification of the defendant's rights of defence, as it prevents the defense attorney from controlling the conduct of the hearing when the evidence of the victim's hearing is based on the entire proceeding.

The defender loses the opportunity to verify the witness' credibility, ask additional questions and supervise the victim's interrogation.

In addition, the hearing of a minor victim with the involvement of a prosecutor, a lawyer or a victim's attorney would not violate any procedural guarantees of the victim and would not violate the principle of the protection of his or her welfare, as the questions are asked through a judge conducting the hearing in the presence of an expert psychologist and he or she has the opportunity to revoke them and correct their wording so as not to embarrass the victim and at the same time seek to establish the true course of proceedings. The absence of the involvement of the prosecutor, defender or the victim's attorney in the hearing of the injured minor, where his hearing is a unique act, may lead to gaps in the proceedings which will require them to be completed without delay, and this in turn will lead to the need for the victim to be heard again and the opposite effect as intended by the project promoter.

In addition, when evidence from the witness' hearing is to be evidence leading to the trial, then only such evidence is based on the conviction, and the defendant was not able to ask questions, both at the stage of the investigation and in the court proceedings, the rights of the accused are extremely limited – this strikes the right to a fair trial guaranteed under Article 6 Convention.

1. Legal recognition of unread minutes and documents to be read at the hearing at the time of the closure of the court line

Another significant change which the drafter has submitted is the recognition, by law, of the unread minutes and documents to be read at the hearing at the time of the closing of the court. At this point, it should be pointed out that this is not a change favourable to the accused.

Mainly because the parties have the right to know what is the basis for judgment. Furthermore, the parties are not able to control which documents or protocols should be disclosed. The content of the judgment of the European Court of Human Rights, Brzuszczyński p.

Poland, from 17 September 2013[14], where the Court expressly states that, before the defendant is convicted, all evidence must be disclosed in his presence, as he undertakes Article 6(3) point d of the Convention.

As regards the above, it should be pointed out that the drafter should introduce the possibility of disclosing the minutes and documents at a separate sitting before the closing of the hearing, which will enable the court, given the number of documents and time-consumingness, to easily exchange the documents and protocols on the basis of which it issues its ruling.

As a result, the parties will also be able to find out without haste the evidence on the basis of which the court will issue its ruling and raise any objections. Thus the court will not violate the defendant's procedural guarantees.

_________________________________________________________