There are currently two separate drafts of amendments to the Code of Criminal Procedure and other acts in the legislative process, which are intended to, among other things, increase the standards related to the use of temporary detention, including, above all, curbing its abuse, which is a definitely right initiative. One of the drafts was submitted by the Minister of Justice, and the other by a group of MPs.
Both projects unfortunately also contain flawed solutions, based on clearly erroneous assumptions. This concerns the obligation, provided for in each of the proposed amendments, for advocates and legal advisers to perform rotational shifts, during which representatives of these professions will have to remain ready to provide defense to persons against whom applications for the application of temporary arrest have been filed. From the perspective of contemporary standards and the realities of performing these professions, two elements raise fundamental objections.
Firstly, none of the bills took into account the specialisation that has been developing in both professions for several decades. A significant number of advocates and legal advisers have not conducted criminal cases in their professional work for years. As a result, the authors of the bill, declaring their intention to achieve the goal of increasing the standards of protection of persons against whom a request for the application of temporary detention is made, propose mandatory on-call duty, which will be performed by, among others, lawyers who do not have the appropriate knowledge or experience in criminal cases, and therefore cannot guarantee suspects professional legal assistance. The bill's authors are striving for a situation in which, for example, specialists in tax law, labour law, real estate law or intellectual property will be required to be on duty and defend in detention cases. It is as if doctors in general – i.e. ophthalmologists, geriatricians or orthopedists – were required to be on duty in maternity wards and therefore claim that a high standard of medical care has been provided to patients. The concept is therefore flawed by definition.
The second challenged assumption of the bills is no less detached from reality. These mandatory on-call shifts of attorneys and legal advisers are to be performed free of charge. The attorney/legal adviser will be entitled to remuneration only for providing defense, if such a situation occurs during the on-call shift. It is not known why there will be no remuneration for performing on-call shifts. Attorneys and legal advisers are not public officials. While practicing their professions individually or in the form of partnerships, they conduct business activities and bear the related costs on their own. All the more reason to additionally burden them with the obligation to perform on-call shifts without any remuneration. The obligation to perform on-call shifts will affect their professional affairs and private lives. The need to remain ready for defense – moreover, on dates over which they have no influence – will limit the possibility of planning leisure, including, for example, family trips, but will often conflict with the professional duties of such an entrepreneur in his law firm, and in any case will always determine a specific planning of professional activities on the day of duty.
It should be assumed that a significant proportion of the advocates and legal advisers required to perform on-call duties who do not deal professionally with criminal law on a daily basis, and who will therefore not be able to properly fulfil their obligation to defend their potential clients in custody cases, will of necessity commission other advocates or legal advisers to perform on-call duties, and specifically those who deal with such cases professionally. As a result, the cost of performing on-call duties, which should be borne by the State as an entity with obligations to guarantee appropriate standards of respect for human rights, will be largely transferred to the advocates and legal advisers.
The introduction of paid on-call duty would therefore naturally solve the problem of the inability to properly discharge the duties of a defense attorney by persons who do not deal with criminal cases in their practice. In the case of paid on-call duty, the same situation would occur as in the case of so-called ex officio cases. People from the group of attorneys and legal advisers who specialize in criminal cases would volunteer to perform them. Only then would it be possible to achieve the declared goal of the regulation, which is to really raise the standards of the right to defense in custody cases.
author:
Michał Wojtyczek
This entry contains general information on the legal issue discussed. It does not constitute legal advice or a solution to a specific case or legal problem. Due to the unique nature of each factual situation and the variability of the legal status, we recommend that you seek the assistance of a law firm for legal advice.