The terms of communication between a person detained pending trial and his/her counsel for the defence K 25/11
The lack of premisses the occurrence of which would authorise a prosecutor to permit the monitoring of correspondence carried out between a suspect and his/her counsel for the defence is inconsistent with the Constitution.
At the hearing on 10 December 2012 at 10 a.m., the Constitutional Tribunal considered an application, submitted by the Polish Ombudsman, with regard to the terms of communication between a person detained pending trial and his/her counsel for the defence.
The Constitutional Tribunal adjudicated that Article 73(3) of the Act of 6 June 1997 - the Polish Code of Criminal Procedure, due to the fact that it indicated no premisses the occurrence of which would authorise a prosecutor to permit the monitoring of correspondence carried out between a suspect and his/her counsel for the defence, was inconsistent with Article 42(2) in conjunction with Article 31(3) of the Constitution.
The above provision shall cease to have legal effect after the lapse of 12 months from the date of publication of the judgment in the Journal of Laws. With regard to the remainder, the Tribunal discontinued the proceedings.
The restriction arising from Article 73(3) of the Code of Criminal Procedure (hereinafter: the said Code) does not have a significant impact on the procedural situation of the accused, who in principle exercises the right to defence, and the restriction only concerns correspondence exchange with his/her counsel for the defence.
The regulation contained in the provision under the review corresponds to what is provided for by Article 73(2) of the said Code. The restriction of the right to defence, indicated in Article 73(3) of the said Code and limited by no clause, may however go beyond the situations in which it is constitutionally and conventionally admissible for a prosecutor to exercise the right referred to in Article 73(2) of the said Code.
The Constitutional Tribunal confirmed the aptness of the reservations raised by the Ombudsman with regard to Article 73(3) of the Code of Criminal Procedure, which were manifested in the allegation that “the substantive elements of the restriction of the right to defence introduced in the case” remained outside the scope of a statutory regulation, and thus it stated that Article 73(3) of the said Code was inconsistent with Article 42(2) in conjunction with Article 31(3) of the Constitution due to the fact that it did not indicate the premisses the occurrence of which would authorise a prosecutor to permit the monitoring of correspondence carried out between a suspect and his/her counsel for the defence.
The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was Judge Wojciech Hermeliński.
The judgment is final and its operative part shall be published in the Journal of Laws.