Free Societies

Saying “NO” to Detention Lawlessness In Poland

Maciek Dobrowolski: one of individuals interviewed by WEI.

Erin Baumgartner | Marketing and Communications Intern

Article 47 of Poland’s constitution states, “Everyone has the right to the legal protection of private and family life, honor and reputation, and to decide on their personal lives.” But people harmed by the abuse of pretrial detention are robbed of this right before they are ever convicted of a crime.

Pretrial detention—also referred to as preventive detention or remand—is when individuals charged with a crime are held in detention centers while they await trial, as a means of safeguarding proper conduct of judicial proceedings. According to the Polish Code of Criminal Procedures (CCP), instances where remand could be deemed necessary include when there is specific and real fear of escape, expectation that sentencing of the accused will exceed eight years, or substantiated belief that the accused would commit a new aggravated felony if released. Any request from the prosecution for pretrial detention must be justified by clear and convincing evidence.

Due to the seriousness of depriving individuals of their freedoms before a conviction is made, the European Court of Human Rights describes that pretrial detention should only be observed as an exception for extreme cases, rather than the rule in legal proceedings.

The Warsaw Enterprise Institute (WEI), an Atlas Network partner, conducted an investigation on abuses of pretrial detention in Poland, and released their findings in a report earlier this year. A key part of the investigation included performing in-depth interviews with people who have been harmed by the misuse of pretrial detention. WEI reveals this to be a systemic violation of human rights within the Polish justice system, and they present a series of recommendations for addressing the abuses.

Between 2015 and 2021, Poland saw a significant decrease in the number of convicted people in prison (from 65,664 to 61,648). However, in that same timeframe, the number of people who were temporarily arrested and held in detention centers more than doubled (from 4,162 to 8,707).

Although pretrial detention is intended as a last-resort action, Poland sees extremely high rates of successful pretrial detention requests, averaging around 90% since 2009. In contrast, the number of complaints concerning pretrial detention that are upheld by the court has sharply declined. In 2021, only 141 out of 5,768 complaints were granted. Courts are increasing the practice of pretrial detention, while not taking due-diligence to evaluate officially filed complaints.

Within the individual stories WEI shares, there are common trends of accused individuals not being aware of the scope of their legal rights and not being provided lawyers in a timely manner. Additionally, case proceedings are often extremely slow-moving, during which time the accused is left in limbo, unable to maintain their livelihood while in detention.

Maciek Dobrowolski was one of individuals interviewed by WEI, and his story of pretrial detention became known across Poland.

Maciek was arrested in his house on May 28, 2012, at 6 a.m. His house was just one stop in a police roundup of about 20 to 30 people that morning. Maciek was charged with two offenses: participating in an organized crime group (the “Szkatuła” gang) and trafficking large quantities of marijuana from the Netherlands to Poland.

Maciek was a longtime supporter and active member of the fan association for Polish football club Legia Warsaw, and 2012 marked the year that Poland and Ukraine were organizing the European Football Championship. It resulted in tense relations between soccer fans and then Prime Minister Donald Tusk, with fans protesting government shortcomings in the championship organization, as well as general party politics. Maciek described, “Since I was on the board of the Legia fans’ association, I was convinced that it was a detention as part of … the aftermath of a fight between fans and the government.”

Although Maciek had a loose connection to the Netherlands through support of one of their football clubs, ADO Den Haag, and had traveled there previously, Maciek maintained his innocence. The charges brought against him, which carried possible jail time of up to 15 years, were founded on the statement of a fellow Legia supporter—and former drug dealer—but no other evidence was found to support the claims.

As a result of the seriousness of the crime, Maciek was sentenced to three months in pretrial detention. As he neared the end of his detention period, the sentence was extended an additional three months, due to the lack of progress in the case proceedings. This pattern continued, and in total, Maciek would spend a total of over three years in pretrial detention.

Maciek’s luck eventually turned when a campaign called “Free Maciek!” was spearheaded by Legia fans, and garnered popular support among the public, prominent athletes, and celebrities. His case would eventually even reach the newly- elected president of Poland. Appeasing public outcry, the presidential office made an official request to the courts for information regarding Maciek’s repeatedly extended pretrial detention, and the courts subsequently released Maciek on bail. Not long after, the witness’s statement was overturned. Earlier this year—over 10 years since Maciek was first arrested—it was announced that the case had been protracted for “reasons attributable to the judiciary.” Maciek was provided PLN 4,000 (USD$866) in compensation for the three years he spent in detention.

In his interview, Maciek told WEI, “In theory, it is the court that has to prove you guilty, [but] I was the one who tried to prove that I was not guilty.”

Penal Reform International describes that the practice of pretrial detention undermines the chance of a fair trial and the rule of law. But at a more personal level, for individuals like Maciek, the time spent in detention also results in an array of negative consequences, from suspension of personal relationships and stigmatization to financial vulnerability from the forced discontinuation of work.

The Warsaw Enterprise Institute has encouraged a range of recommendations to address the systemic abuses of pretrial detention, including introducing a maximum duration for pretrial detention, updating the criterion required to justify pretrial detention, and observing safeguards for pretrial detainees that are recommended by the European Court on Human Rights. WEI created a petition related to these recommendations, and have already gained almost 800 signatures. They also hosted a conference on the abuses of pretrial detention, which was attended by 14 legal experts and six human rights NGOs.

The Warsaw Enterprise Institute is grounded by the refrain “We can say ‘NO’ to detention lawlessness,” and will continue working to promote changes that are essential for protecting individual liberties within the Polish justice system.