You don’t know the day or the hour… or the draft amendments to the law on detainees and suspects

The submitted draft amends the definition of a ‘suspect’ person contained in Article 71 § 1 of the Code of Criminal Procedure.

The postulated changes entail a certain degree of de-formalisation of the acquisition of the status of a suspect. The proponents envisage extending the circle of persons to whom the status is to be granted to persons with regard to whom the law enforcement authorities firstly assume suspicion, i.e. consider the commission of an act to be probable , and secondly undertake (certain) actions proving that a given person is a suspect. The more formalised acquisition of the status of a suspect through the issuance of an appropriate order also remains valid under the current legal status.

Paradoxically, yes. Although the term ‘suspect’ evokes a negative connotation, he or she enjoys a number of rights that guarantee the fairness of the actions and proceedings, including: the right to a defence counsel; no obligation to prove his or her innocence or to provide evidence against him or her; the right to refuse to give an explanation, answer questions, etc.; the right to inspect the case file, take copies and make copies.

Nowadays, it is not uncommon for arrests to come down to a pattern where, in the early hours of the morning, law enforcement officers appear at a person’s place of residence and enter the property as soon as the proverbial 6:01 a.m. strikes.

In the course of the operation, the detainee is deprived of access to telephones and other devices used for contact with the world, and the authorities undertake additional, “occasional” activities, such as a search of the person or premises, only formally complying with the obligation to instruct on the right to contact a lawyer. In such cases, the immediate assistance of an attorney is essential, but ‘leads’ may prove to be a barrier. It is difficult to expect that, especially in stressful situations, anyone would remember the contact details of a potential defence counsel without the use of a telephone or computer.

If you are fortunate enough to be able to notify your lawyer, sometimes the information reaches him or her tens or minutes before the hearing or other activities. The length of direct contact with the defence counsel thus depends on how quickly he or she arrives. Theoretically speaking, the prosecutor may not wait for the defence counsel because he has another activity in his schedule on the same day.

And what will the form of direct contact between the detainee and the defence counsel look like? It may be a lottery and, with a bit of luck, the conversation will take place in one of the rooms available in the authority’s unit, but if fate is not on our side on a given day, the contact with the attorney will take place in the corridor, assisted by investigators.

Therefore, following the example of other European Union countries, the legislator proposed changes within the scope of the guarantee of the “first” contact to which a detained person is entitled with his/her defence counsel on the grounds of Article 245 § 1 of the Code of Criminal Procedure and analogous in Article 46 § 4 of the Code of Criminal Procedure.

The postulated changes are already familiar to the criminal procedure: they introduce an institution similar to the one known from the so-called accelerated proceedings, imposing an obligation on law enforcement authorities to immediately submit to a detainee a list of advocates and legal advisors on duty in cases of detention.

The aforementioned right is to be reinforced by the obligation to record in the protocol the refusal of the detainee to exercise his/her right of contact with a defence counsel. Moreover, the proposed amendment deprives law enforcement authorities of the possibility to reserve their presence during the contact.

The amendment also provides for a further strengthening of the rights of the detainee in the form of the minimum conversation time that the law enforcement body should ensure during contact with a defence counsel – 30 minutes.

The proposed Article 245 § 1a of the Code of Criminal Procedure, in turn, introduces the principle of admissibility of questioning a detainee on condition that he or she is allowed prior contact with a defence counsel. An exception to this is to be made if the detainee refuses to exercise his/her right to contact within two hours of detention.

Given the shape of the current PCC regulation, it is a good idea to have an “insurance policy” – i.e. a contact number for a lawyer – in case of emergency situations. This will allow appropriate steps to be taken without delay to protect the rights of persons against whom law enforcement authorities take action.

From the point of view of citizens’ rights, the initiative to strengthen the rights of detainees and suspects in general is undoubtedly a good one. In particular, the proposal to make available a list of potential defence lawyers, the compulsory recording of refusals of assistance or the safeguarding of a minimum time limit in contact with an attorney is interesting.

However, one cannot fail to notice shortcomings of the proposed regulation, even in relation to the cited positives, which require immediate clarification. One can mention here the closed list of law enforcement activities which “upgrade” the status of a given person to a suspect. The exclusivity of questioning or presentation indicated in the draft omits, for example, persons in custody, who should similarly be entitled to this status.

The nature of the lists of advocates and legal advisers is also unclear. The drafters do not indicate in the provision whether the said list involves assistance by way of ex officio, pro bono assistance or is merely informative.

Regardless of what happens next, it is worth remembering that crisis situations require immediate solutions. The first hours after an arrest, the first explanations (or testimonies) are extremely important and can sometimes determine whether a pre-trial investigation ends in its infancy or gains momentum and goes to trial.