STOP officers limiting contacts between pre-trial detainees and their defenders!

A decision on pretrial detention is a sudden and unexpected decision. Law enforcement agencies should ensure that a person detained has access to a defense attorney immediately. Remember, the court has only 72 hours to issue a detention order and defend the detainee, preventing them from spending the next three months in detention!

The right of a person detained on remand to contact a defense attorney is a fundamental element of the constitutional right to defense. A detained person has the right to contact their defense attorney in person, by telephone, and by correspondence. As a rule, this contact must be permitted at the detainee's request and cannot be time-limited. Apart from the attorney and their client, no one else has the right to participate in this special exchange of information.

The currently applicable regulations regarding contacts between a detainee and his/her defense attorney should be strictly observed by state authorities.

Unfortunately, we are increasingly encountering situations where the law regulating contact with a defense attorney is not respected by state authorities. This applies particularly to regulations regarding the conditions for conducting telephone calls and in-person visits.

In his letter to the Minister of Justice dated 9 July 2020 (IX.517.2656.2019.MK), the Commissioner for Human Rights stressed that despite the existence of relevant provisions specifying in detail the procedure and manner of establishing contact between a detained person and a defense lawyer, the accused’s right to defense is being violated more and more often.

Refusal to consent to telephone contact is often justified by the alleged fear of unlawful use of such contact. While such a restriction is permissible under Polish law, it does not mean that it should be automatically applied to every person deprived of their liberty.

The organizational and orderly regulations governing pretrial detention detail the manner in which a detainee establishes contact with a defense attorney. It is the responsibility of the prison administration to ensure that the call is only connected to the number specified in the contact consent order, as well as to verify the identity of the person receiving the call. When the handset is handed over to the detainee, access to the telephone keypad is blocked, as it could be used to undetectedly change the recipient of the call. Due to the application of these security principles, there is no reason to limit the right of detainees to contact their defense attorney by telephone—except in exceptional circumstances.

Visits between a legal representative and a detained person should take place under conditions that prevent third parties from recording the course of such a meeting. The visiting room should be free of any devices capable of recording image or sound. Reports that defense visiting rooms in some pretrial detention centers are monitored by video surveillance are cause for concern. This practice violates applicable law, which requires visits to be conducted without the presence of other persons. Observing such a meeting by Prison Service officers undoubtedly violates both the detainee's right to defense and the right to a fair trial.

Proponents of increased control over visits cite the potential for unauthorized use of proxy visits, for example, through the transfer of prohibited substances or letters from third parties. It should be noted that guards are responsible for appropriately monitoring individuals attending visits with detainees, while respecting ethical boundaries and defense confidentiality.

Both attorneys and legal counsels exercise a profession of public trust. The belief of state authorities that they view attorneys for incarcerated individuals with an excessive degree of distrust should be considered unfounded. Of course, irregularities during closed contacts with defense attorneys do occur, but these are isolated incidents and should not be used as a basis for expanding visitation control.

Work has been underway for some time on amending the regulations, which, while respecting the interests of the justice system, would expedite the opportunity for a defense attorney to contact a detained person. The need to wait for a relevant order from the authority currently in charge of the detainee significantly complicates the work of attorneys. Such legislative efforts should be viewed positively. When an arrest and, consequently, pretrial detention occurs, prompt contact with an attorney will ensure immediate defense.

How to respond to attempts to hinder contact with a representative?

• whenever possible, document any difficulties encountered, e.g. by submitting objections to the minutes and other statements
• report irregularities to the superiors of persons undertaking actions that violate the rights of a detained/temporarily arrested person
• consider reporting the scale of irregularities in a given penitentiary unit to organizations monitoring the rights of persons deprived of their liberty

[showlayout id=668]