Increased risk of pretrial detention used against individuals experiencing homelessness and foreigners is the main finding of the latest report by the Helsinki Foundation for Human Rights on the use of pretrial detention based on flight risk grounds.
As part of its case-file study, HFHR analysed nearly 100 criminal case files concerning pretrial detention. The study was conducted in selected courts of the Warsaw, Łódź, Silesia, and Lower Silesia regions. Its aim was to understand the circumstances in which courts use flight risk as a ground for pretrial detention.
The HFHR report highlighted the disproportionately high representation of individuals experiencing homelessness and foreigners in the study sample. In its recommendations, HFHR pointed out that such an issue is associated with the automatic application of pretrial detention in cases of individuals who do not have a permanent place of residence in Poland. "In our opinion, this leads to indirect discrimination of the discussed groups and exposes them to being detained," notes attorney Marcin Wolny, an HFHR lawyer.
Furthermore, the lack of a permanent place of residence was the most frequent reason for applying pretrial detention based on the flight risk. Additionally, courts referred to the lack of ties of the suspect to the country, particularly the absence of family relations, employment in Poland, or property. Another group of arguments included the suspect's behaviour during criminal proceedings conducted against the suspect. In this context, courts cited the lack of possibility to contact the suspect, not residing at the declared address, the necessity of searching for the suspect, or the ineffectiveness of previously used non-custodial preventive measures. Another significant category of arguments justifying the application of pretrial detention included circumstances concerning the suspect's life not directly related to the proceedings, particularly previous residence in foreign countries or lifestyle. "In several cases, courts saw the risk of escape or hiding of the suspect in the probable sentencing towards severe punishment. However, they did not refer to the regulations of the Code regarding this specific premise," emphasizes Marcin Wolny.
According to Article 258 § 2 of the Code of Criminal Procedure, pretrial detention can be based, among other things, on the fact that the suspect is accused of committing a crime or an offense punishable by imprisonment, the upper limit of which is at least 8 years. In analysing this issue, HFHR noted that in a significant part of the examined cases where courts referred to the regulations of Article 258 § 2 k.p.k., the reference to the threat of severe punishment was solely related to the legal classification of the offense committed by the suspect. The justifications for such decisions lacked any consideration of whether there is indeed a real chance of the suspect being sentenced to severe punishment in the given case. On the other hand, the analysed sample also included decisions on the application of pretrial detention where courts made predictions about the possibility of imposing severe punishment on the suspect.
However, it is noteworthy that in both categories of cases, the courts' views in a significant number of cases diverged from the final outcome of the proceedings. "As a result, the application of pretrial detention was based on the risk of imposing severe punishment, which in practice resulted in an outcome far from severe, not exceeding even 1 year and 6 months of imprisonment," points out Marcin Wolny.
HFHR also paid special attention to the manner in which courts justified their decisions on pretrial detention, particularly whether they indicated specific circumstances evidencing the grounds for applying pretrial detention. The study proved that not all of the courts’ judgments met the Code's requirements in this regard. The most frequent shortcomings in this context concerned the justification of why the court did not decide to use non-custodial preventive measures. Among the examined group, only 9 of the examined decisions directly met the requirements of the Code.
In recommendations, the HFHR highlighted the necessity of restructuring the catalogue of preventive measures and the grounds for their application, especially deleting Article 258 § 2 of Code of Criminal Proceedings, which allows the use of pretrial detention solely based on the severity of the crime committed by the defendant. It also deemed necessary to eliminate the possibility of applying pretrial detention solely based on the lack of a permanent place of residence of the suspect. Finally, HFHR emphasized the necessity of expanding the catalogue of non-custodial preventive measures and using new technological solutions for this purpose.
