POLAND Trends and Developments Contributed by: Anna Grochowska-Wasilewska, Fieldfisher Poland
cial bail and travel restrictions fall within the category of so-called preventive measures. Their principal pur - pose is to safeguard the proper course of criminal proceedings. Pre - trial detention Pre-trial detention undoubtedly constitutes the most severe preventive measure available under Polish criminal procedure. Although police supervision has, since 2005, been the preventive measure most fre - quently applied during the investigative stage, with pre-trial detention ranking second, concerns regard - ing the excessive use of pre-trial detention persist. In the practice of criminal justice authorities, allega - tions of financial (economic) crimes increasingly serve as a basis for pre-trial detention comparable to that applied in cases involving offences against life and health. Statistical data demonstrate that, over many years, courts have granted approximately 90% of prosecuto - rial applications for pre-trial detention and around 95% of applications seeking its extension at the investiga - tive stage. At the same time, appeals against deten - tion orders have proved overwhelmingly ineffective: between 2018 and 2021, the success rate of appeals against district court detention decisions remained at approximately 3%, whereas appeals against circuit court decisions concerning pre-trial detention suc - ceeded in less than 1% of cases. Apart from the requirement of a high degree of prob - ability that the suspect has committed the alleged offence (Article 249, Section 1 of the Polish Code of Criminal Procedure), the application of any preventive measure additionally requires the existence of at least one specific statutory condition, namely the risk of absconding, the risk of interference with the proper course of the proceedings or the risk of reoffending (Article 258, Sections 1 and 3 of the Polish Code of Criminal Procedure). The latter ground is confined exclusively to situations involving the risk of further offences against life, health or public safety. The Polish Code of Criminal Procedure also recog - nises one additional specific ground that may justify the imposition of pre-trial detention: the severity of the potential penalty faced by the accused. In Poland, if
the accused is charged with an offence punishable by a maximum term of imprisonment of at least eight years, or if a court of first instance has imposed a custodial sentence of no less than three years, the likelihood of a severe penalty may itself justify the imposition of pre-trial detention in order to secure the proper course of the proceedings (Article 258, Sec - tion 2 of the Polish Code of Criminal Procedure). In practice, Polish courts frequently treat this ground as an autonomous specific condition justifying pre-trial detention. Empirical research conducted by the Helsinki Founda - tion for Human Rights points to excessive reliance on the “severity of punishment” ground in financial crime cases, due to the relative simplicity of its application. The firm’s experience leads to similar conclusions. Courts often rely primarily on the statutory penalty attached to the offence in question, without engag - ing in a more thorough assessment of risks such as absconding or interference with the course of justice. Given that many financial offences under Polish crimi - nal law, including different forms of bribery and cor - ruption (Article 228, Sections 1 and 3–6, Article 229, Sections 1 and 3–6, Article 230, Section 1, Article 230a, Section 1, Article 271, Section 3, Article 296a, Section 4 and Article 305, Section 3 of the Polish Criminal Code), money laundering (Article 299, Sec - tions 1–2 and 5–6), fraud (Article 286, Sections 1–2), aggravated invoice forgery (Article 277a, Section 1) and aggravated forms of offences involving conduct to the detriment of a company (Article 296, Section 2–3), are punishable by statutory maximum penalties of eight years’ imprisonment or more, the severity of the punishment may serve as a justification for the application of pre-trial detention in such cases. In financial crime cases, the risk of interference with the course of justice is also frequently relied upon as a ground for the use of pre-trial detention, as well as alternatives to pre-trial detention. In the view of prosecutors and courts, the mere fact that offences were allegedly committed in co-operation with oth - ers, particularly where the legal classification includes participation in an organised criminal group, is often regarded as sufficient to substantiate the existence of such a risk.
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