Tymczasowe aresztowanie i zatrzymanie w postępowaniu karnym
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Date
1984
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Wydział Prawa i Administracji UAM
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Detention under remand and detention is custody in criminal procedure
Abstract
It is in general commonly understood in literature that detention under
remand is only a litigious coercive measure, which is designed to prevent
defendants' avoidance of sentence and carrying out the penalty. In reality however,
it serves certain extrajudicial functions in all countries as general and individual
crime prevention. It is an undesired fact transforming the detention under remand
in a peculiar means of repression and causing too extensive use of that drastic measure. This is also a phenomenon violating the principle of presumption of the
accused innocence. The grounds of application of the detention have to be therefore
essentially limited to reasonable suspection of defendants (suspect's) avoidance
of administration of justice. The only exception has to be extended on preventing
the defendant from committing a new severe offence against life, health or public
safety. Besides, the grounds for the detention under remand ought to be more
precisely formulated land and the explicit duty to quote detailed reasons for the
detention's application in the decision has to be introduced. In case of severe
offences (liable to minimum five years of punishment) a reference to a prospective
long term confinement might be sufficient reasons unless circumstances occur
excluding the suspection of defendant's avoiding administration of justice (eg. his
invalidism).
The detention under remand should be decided exclusively by a judicial organ
(court, examining magistrate) which is independent and impartial. Prosecutor is
deprived of those qualities as he is acting under conditions of hierarchical subordination
and performs functions of prosecuting side in criminal proceedings.
Moreover, vesting judicial organs with the sole competence of applying that means
would be entirely conformable to art. 9 sec. 3 of the International Covenant of
Civil and Political Rights, ratified by Poland in 1977.
Limitations in realizing the right to defense by the detainees in course of
the preparatory proceedings are known. It is mostly the case of subjecting
suspect's (possibility to consult his counsel for the defense to prosecutor's consent
and searching the possibility of counsels presence during suspect's interrogation.
In this respect substantial changes are needed.
A problem of applying detention under remand both in the preparatory
proceedings and throughout the whole of criminal proceedings is not properly
solved in the respect of time limits. They do not have a character of deadlines
in the preparatory stadium and they are lacking in the further stages of the
proceedings. The similar phenomenon is after all observed in many countries. In
the result there are instances of lengthy deprivation of liberty of persons Who
have! not yet been sentenced. It therefore seems that a definitive period of
application of detention under remand should be statutorily limited to one year
in the preparatory proceedings and to two years until passing a sentence in the
first instance court.
Detention in custody is another acute although short term means of depriving
of liberty which is in the discretion of civic police (militia). It is most extensively
applied and seldom controlled both by judicial organs and by prosecutor. In this
respect more precise statutory provisions are needed to strengthen legality of use
of that coericive mean and introduce a judicial review of the practice. In this aim
a requirement of issuing a motivated writ of detention in custody should be
introduced, and detainees must be vested with the right to claim their immediate
bringing to court, lodging a complaint against groundless detention as well as
adopting a counsel for defense.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 46, 1984, z. 3, s. 1-26