Pre-trial detention; the lack of the possibility of telephone communication between a person detained pending trial and his/her counsel for the defence K 54/13
An absolute prohibition against the use of a telephone by a person detained pending trial for the purpose of communicating with his/her counsel for the defence is inconsistent with the Constitution.
At the hearing on 25 November 2014 at 9 a.m., the Constitutional Tribunal considered an application, submitted by the Polish Ombudsman, with regard to detention pending trial and the lack of the possibility of telephone communication between a person detained pending trial and his/her counsel for the defence.
The Constitutional Tribunal adjudicated that Article 217c of the Act of 6 June 1997 ‑ the Executive Penal Code, insofar as it provided for an absolute prohibition on telephone communication between a person detained pending trial 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 will cease to have effect after the lapse of 6 months from the date of the publication of the judgment in Dziennik Ustaw (the Journal of Laws).
The Ombudsman indicated that there had been consistent and well-established practice of applying Article 217c of the Executive Penal Code (hereinafter: the Code), as a result of which a person detained pending trial was prohibited from using a telephone to contact his/her counsel for the defence. The said practice is related – within a more general scope – to the right to contact the counsel for the defence, which constitutes one of the guarantees of the constitutional right to a fair trial. The Ombudsman argued that the restriction of the said right, which had resulted from the well-established application of Article 217c of the Executive Penal Code was not necessary in a democratic state ruled by law. Such a solution did not meet the requirement of proportionality, and thus should be deemed unconstitutional.
The Constitutional Tribunal considered the circumstance of the absolute prohibition on telephone communication between a person detained pending trial and his/her counsel for the defence in a situation where such contact was intended to properly prepare the accused to participate in proceedings that were pending. In that context, the Tribunal deemed that the complete exclusion of that form of communication restricted the right to defence and was not necessary.
Not in every case, the said restriction might be regarded as concurrent with the purposes of pre-trial detention. And thus, it did not always serve the basic purpose of criminal proceedings, which was to determine the perpetrator of an offence and to hold him/her criminally liable.
The Tribunal stressed that the lack of the possibility of telephone communication between a person detained pending trial and his/her counsel for the defence might be justified by concern that the accused would urge that false testimony be given or would, in another unlawful way, obstruct criminal proceedings.
Nevertheless, a possible restriction of that form of communication, which is commonly used nowadays, also in situations where such concern is not reasonably justified may not become a general prohibition.
Telephone communication with the counsel for the defence as such does not pose a threat to the proper course of criminal proceedings. It is contacts aimed at preparing the accused’s defence that are meant here. If such a risk appears, there are ways to avoid it, without incurring excessive expenses and taking extraordinary organisational efforts.
The complete deprivation of that form of contact in the case of a person detained pending trial undermines adherence to the principle of equality of arms in criminal proceedings.
Indeed, it does not provide equal chances of preparing to criminal proceedings for a person detained pending trial, as the said person is allowed only to contact the counsel for the defence during visits or by post, when juxtaposed with accusers, who may use all modern means of communication, including a telephone, for the purpose of proving accusations set out in an indictment.
The Tribunal stressed that its judgment declared the unconstitutionality of the challenged provision only within a certain scope, i.e. it did not rule the invalidity of the provision in its entirety or of the general prohibition included therein. The ruling merely pertained to the use of a telephone by a person detained pending trial for communication with his/her counsel for the defence as regards contacts related to criminal proceedings that were pending. The Tribunal’s judgment did not rule out the possibility of supervising such contacts by an authority running a relevant detention facility where the said person was being detained in accordance with general terms provided for in the Executive Penal Code or the possibility that the legislator would introduce detailed regulations within that scope, taking account of the principles set forth in Article 31(3) of the Constitution.
Bearing in mind the necessity to weigh two values: the proper course of criminal proceedings and respect for the right to defence, aiming at the avoidance of legal gaps, the Tribunal deemed that it was useful to defer the moment when its judgment would become legally effective. The constitutional significance of the right to defence weighed in favour of a relatively short period of deferral, which however took account of the fact that the legislator needed to amend the provisions of the Code, which would constitute the implementation of the Tribunal’s judgment. Taking the above into consideration, the Tribunal deemed that the period of 6 months should be proper.
The hearing was presided over by Judge Małgorzata Pyziak-Szafnicka, and the Judge Rapporteur was Judge Marek Zubik.