Preventive measures – what should you know?

Preventive measures are the type of coercive measures used in criminal proceedings against the accused, which are intended to secure the proper course of the proceedings or, exceptionally, to prevent the accused from committing a new, serious crime. Preventive measures can only be applied to the person to whom the order to present the charges has been issued, and the collected evidence indicates a high probability that the accused has committed a crime. Before taking a preventive measure, the court or the prosecutor should, if possible, question the accused. A defense counsel must be admitted to the hearing if he or she shows up. It is worth remembering that the right of the accused is to demand that the defense counsel be informed about the ongoing questioning.

There are two main groups of preventive measures in the Polish legal system – non-isolation and isolation measures. The first group includes means of appeal such as:

1. Surety
2. Police supervision
3. An order to leave the apartment temporarily
4. Suspension from official duties or in the exercise of the profession
5. Order to refrain from carrying out specific activities
6. An order to refrain from driving a certain type of vehicle
7. It is forbidden to leave the country

The second group includes only one, special punitive measure, which is temporary arrest. Its unique character results primarily from its isolation, which is followed by a serious restriction of the rights and freedoms of the accused. It is for this reason that, in order to apply this measure, the prosecutor must obtain the consent of the judge. Pre-trial detention may be used for a period not longer than 3 months. At the request of the public prosecutor, if due to the special circumstances of the case it was not possible to complete the preparatory proceedings, this period may be extended each time for another 3 months. As rightly pointed out by the Court of Appeal in Katowice in its decision of 8 July 2008 (II AKz 480/08), pre-trial detention is intended to properly secure the course of the proceedings for the time of gathering relevant evidence in the case and cannot fulfill the function of a punishment. Even the most evidently complicated case, especially of an economic or property nature, cannot extend it to unacceptable sizes.

The prosecutor has the right to apply measures in the preparatory proceedings, and the court in the jurisdictional proceedings. Preventive measures must always be based on a specific statutory legal basis, must be necessary (i.e. necessary) and applied to achieve a legally permissible (intentional) purpose. In addition, the prerequisites for the application of preventive measures are to use them in order to secure the proper course of the proceedings or, exceptionally, to prevent the accused from committing a new, serious crime.

In addition to the above-mentioned general conditions for the application of a precautionary measure, one of the specific conditions is also required. Their catalog can be found in art. 258 of the Code of Criminal Procedure Those are:

1. Well-founded fear of the accused’s flight or hiding
2. Well-founded fear that the accused has unlawfully obstructed the criminal proceedings (e.g. by persuading them to give false testimony)
3. If the accused is accused of committing a crime or a misdemeanor punishable by a maximum term of imprisonment of at least 8 years, or if the court of first instance has sentenced the accused to a term of imprisonment of more than 3 years, the need to apply pre-trial detention in order to secure the proper course of the proceedings may be justified by the threat of the accused with severe punishment
4. Exceptionally, when there is a justified fear that the accused who has been charged with committing a crime or willful misconduct will commit a crime against life, health or public safety, especially when he or she threatened to commit such an offense.

Despite the extensive development of the issue of preventive measures in the Code of Criminal Procedure, the provisions allow for a relatively large amount of freedom in their application. For years, Polish legal circles have been paying attention to the problem of abuse of pre-trial detention, there is also talk of unreliably prepared justifications or even the lack of them. We should remember that the application of preventive measures, including in particular pre-trial detention, should relate to exceptional situations and should always take into account not only the good of society, but also the fundamental rights of the accused.