Litigation

Arrest Rights Challenge

Court
Domestic Courts
Country
Poland
Status
Closed
Case Lawyer

Denial of Right to a Lawyer for Petty Offenses

In Poland, people who are accused of petty offences are denied their right to a lawyer until the investigation into their alleged offence has been completed.  This denial of a fundamental fair trial right was challenged in the Constitutional Court by the Polish Commissioner for Civil Rights, which found that the situation failed to protect suspect to the standard required by the Polish Constitution and the European Convention. 

Facts

Under the Petty Offences Procedure Code of 2001 (“the POPC”), people who are suspected of committing a petty crime can be arrested and investigated by the police. They are only permitted to access a lawyer at the point when the investigation is complete and their case is filed with the court. This means that people are required to take part in a series of investigative acts, including interrogations and searches, without being able to get advice or assistance from a lawyer.

On June 14, 2011, the Polish Commissioner for Civil Rights filed an application in the Constitutional Court of Poland, challenging the legality of the POPC. The commissioner brought the challenge on the basis that prohibiting a person from accessing a lawyer during the initial investigation stage of a petty offence is in breach of the Polish constitution and the European Convention on Human Rights.

Open Society Justice Initiative Involvement

The Justice Initiative, with the assistance of the Polish Helsinki Committee, submitted an amicus curiae brief to the Polish Constitutional Court.  The brief provides an expert opinion on recent developments within the European Court of Human Rights jurisprudence, as well as other guiding standards from the EU and international bodies, on the grounds that it is contrary to international law to restrict people’s access to a lawyer if they are accused or suspected of a crime.

Arguments

Right to a Lawyer: Suspects have the right to access legal assistance from the outset of the investigation pursuant to (fair trial) and (fair trial).

Right to a Lawyer extends to Petty Offences: The right to access counsel extends to petty offenses in the Petty Offences Procedure Code as they are characterized as criminal charges under (fair trial).

Legal Aid: The Polish Government has an obligation to provide a legal aid scheme to facilitate the right to access counsel for people investigated for petty offenses in the POPC under (fair trial) and (fair trial).

June 05, 2014

On 5 June 2014, the Constitutional Court held that the limitations imposed by the POPC were clearly in contradiction with the protections and standards that are set by the Polish Constitution. The Court also appeared to accept the arguments made by the Justice Initiative’s brief, making references to the European Court of Human Rights jurisprudence and the new EU Directive on the Right of Access to a Lawyer. Under the Directive, all people who are accused of offences where deprivation of liberty is a possible sanction, no matter how minor or petty those offences are, must have access to a lawyer. 

June 02, 2014

Court holds that the limitations on access to a lawyer are unconstitutional.

December 01, 2011

Justice Initiative submits amicus curiae brief.

October 2011

Court gives leave to Justice Initiative to submit amicus curiae brief.

September 2011

Justice Initiative requests leave of the Court to submit amicus curiae brief.

June 2011

Commissioner for Civil Rights brings case to the Constitutional Court.

December 05, 2011
Polish Court: Lipowicz, Amicus Brief, December 1, 2011 (Polish) Download the 19-page document in Polish. Download
December 01, 2011
Polish Court: Lipowicz, Amicus Brief, December 1, 2011 (English) Download the 15-page document. Download

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