Monday, December 04, 2006

Polish legal corruption being discussed...

I received a letter from a Mr. Kenneth Suominen today telling me about two links that I should check out. Both proved pretty interesting so I thought that on the way to contacting them, I ought to share them publicly here in the STORY Blog.

The first link:

Fair trials abroad is website written in 12 languages offering help to citizens of the EU who have received unjust legal treatment in countries which are not their own. The lead story by the way is from out old friend Sebastian Kornhauser, who's story can be found on the Polish Police and Administrative page. (Click

The second link:

Leads to a story in the English Language "Polish Monthly" whose current top story is about Mr. Kornhauser's debacle as well as several others. Apparently Mr. Kornhauser has really taken up the fight against the Polish system and is now dressing in red Guantanamo-Bay style jump-suits. You have got to like that sort of dedication.

In any case, I am going to reprint the article from Poland monthly here today. Let me know what you think.


Two men, two towns, different circumstances; same story.
Both are woken at the six in the morning by the sound of men at their front door. Armed men charge into the flat before bundling their confused targets into vehicles for a drive across town to an uncertain future. Not the best way to start a day.
This is what happened to Bruce Robinson, a New Zealander living in Warsaw, and Sebastian Kornhauser, an Anglo-Pole living next door to the American consulate in Kraków. Both had fallen foul of the law.
Robinson was held in relation to the collapse of an exhibition hall in Katowice that claimed 65 lives. Kornhauser, a defense industry consultant, detained for possessing a firearm without a permit.
As the shock of arrest passed, the two men realized that they faced a far more serious problem. Both Robinson and Kornhauser found themselves locked, not only into their cells, but into a legal process that has been criticized by human rights groups, and one that has the propensity to wreck lives. Both men were under temporary arrest.
Behind bars…
To people like Robinson and Kornhauser, from countries with the Anglo-Saxon system of justice, the practice of temporary arrest can come as a shock although it is common in continental Europe.
In Poland, as in many countries in Europe, a suspect can be detained for a time in excess of 48 hours at the start of an investigation as long as a prosecutor can demonstrate to a court that there are valid reasons for their detention. These could be that the suspect might interfere with the investigation or try to flee. Once the person is locked up, the prosecutor can then start the formal, and sometimes lengthy, investigation into the alleged crime.
So in Poland somebody can be detained for 48 hours, then an investigating prosecutor can appeal to a judge to have temporary arrest applied, which means that the suspect can be held for up to three months in detention. After the initial 90 days has expired, the prosecutor can apply for a further three months, and this process can be repeated again and again, if need be.
All this differs greatly from the Anglo-Saxon model, which dictates in principle that authorities can only keep a suspect on remand for a lengthy period if he or she has been charged and is awaiting trial.
To some in the Polish legal system temporary arrest presents few problems. Krzysztof Kamiñski, a Lublin-based advocate and former MP, says lawyers and advocates have no problems with it, and if there was a problem he would be “the first to shout about it.”
An experienced former judge, speaking off the record, also supported the practice of temporary arrest, pointing out that if there were problems, Poland would have faced criticism from the European Commission. Legal experts also point to a number of checks and safeguard clauses in the law and constitution that should protect people from unwarranted detention.
Yet for those involved in protecting human rights in Poland, its use, or rather abuse, has raised serious concerns.
To begin with there is evidence that no matter what the circumstances surrounding a case, if a prosecutor wants to get a person detained, they can do so quite easily.
A 2004 report by the Helsinki Foundation found that 91 percent of the 18,455 applications by prosecutors for temporary arrest in the first half of 2003 were accepted, concluding that, “this indicated that an almost automatic application of temporary detention remained common practice.”
In September, the magazine Przekrój claimed that in the first half of 2005 courts approved 18,500 applications, a figure far exceeding requests for other tools at prosecutors’ disposal, such as placing a suspect under police supervision or releasing them on bail. The magazine adds that at the end of June 2005 up to 14,000 people languished in prison under the provisions of temporary arrest. In contrast, British Home Office statistics show that the number of remand prisoners (those charged with an offense and awaiting trial) in England and Wales at the end of March 2005 came to 12,347.
In a statement for Poland Monthly the Ministry of Justice rejected claims of automatic detention, saying that if this was the case, all petitions for temporary arrest would be approved.
The fact that courts seem to rubber stamp requests for temporary arrest has become, as Maciej Bernatt from the Helsinki Foundation in Warsaw explains, a major worry. “A problem exists because detention in temporary arrest is used too often by prosecutors and the courts,” he says. “Every time prosecutors ask the court to place somebody under temporary arrest the court does it. It is automatic. You can even spend three months under temporary arrest for a petty crime.”
The practice of nigh-on automatic application of temporary arrest has also, he adds, provoked the criticism of judges at the European Court of Human Rights.
Bernatt is unsure as to why courts, which are required to judge each case on its own merits, approve so many requests but speculates that one reason could be constraints imposed on courts by the country’s notoriously understaffed and inefficient criminal justice system. They may want to examine all the papers, but simply lack the time.
Other legal experts voice the more sinister suspicion that courts regard temporary arrest as an easy and safe option. Put somebody behind bars and it reduces to zero the chances that the person might commit a crime, flee the country or do something else that could embarrass the courts and legal system.
The same could also explain the fondness that prosecutors have for temporary arrest. “It’s always easier for them just to have someone in prison,” quips Bernatt.
Faced with the frightening prospect of three months in jail, most, if not all, detainees want a lawyer. The need for someone to explain to them what is happening and to try and get them released becomes the only priority, but for many, it appears, speaking to lawyer is not that easy.
Is there a lawyer in the house?
For Sebastian Kornhauser, now clothed in a red Guantanamo-Bay style jump-suit, getting legal assistance had become a desperate necessity. Nobody had explained why he had been detained or for how long he would be inside, so he was desperate for advice. But, he claims, he had no opportunity get it. “When you are detained, you are emasculated from informing anybody of where you are,” he says. “You just disappear. You cannot make a phone call or write a letter. The only way I could get a lawyer was through my cell-mate, who asked his lawyer if he could represent me.”
Kornhauser eventually got a lawyer. But, he says, only after his appearance in court when a judge—apparently wearing jeans and Adidas track shoes—approved his detention.
Bruce Robinson also had trouble. Although fortunate in that his lawyer knew quickly of his arrest, problems arose when the prosecutor, using a legal technicality, excluded the lawyer from initial proceedings. A replacement lawyer was found but he could not communicate with Robinson, and operated in a passive role.
Later, when the prosecutor petitioned the court for a temporary arrest order, Robinson’s lawyer, Grzegorz S³yszyk, was again excluded from the proceedings—a point that still rankles S³yszyk. “Let me remind people that the European Convention on Human Rights guarantees to every citizen in every country the right to a defense lawyer,” he says. “No regulations of Polish law or the Polish constitution can break this rule. This prevails, and in Bruce’s case it was violated. In those crucial moments he had no access to his defense lawyer.”
While anecdotal evidence provides testimony, research by recognized bodies provides evidence that a problem with access to legal consul could well exist.
A 2006 report by the Helsinki Foundation into human rights in the OSCE region found that the use of temporary arrest was, “highly controversial because it limited detainees’ rights, particularly the right to prompt access to legal assistance.”
A European Council for Prevention of Torture (CPT) report from 2004 said that although detainees were often told of their right to contact a lawyer, “in practice, it was extremely rare for persons in police custody to have a lawyer.”
Yet even a lawyer may have problems protecting a detainee from spending not only three months in jail, but possibly much longer. Legal provisions, which the Helsinki Foundation has described as vague, allow prosecutors to apply for extensions; thus three months can become six months, and six months nine months and so on. Once a year has passed, the authorities can ask for a further extension—this time permissions must come from the Supreme Court—and one year can become two, and even longer.
Doing time…
On Sept. 26, 2004, Marek D. was detained by police for allegedly trying to bribe a politician. Two years later he is still under temporary arrest, and for his family the wait is telling. “It is very frustrating, especially as my husband has cooperated with the prosecutor’s office,” says Aleksandra Dochnal, Marek D.’s wife, adding that they would welcome a trial. “In fact he is now serving the punishment. He is now not under arrest, he is just being punished without the judgment of a court.
“It affects our family,” she continues. “I have two small children. One is five, and other—who is a year and half—has never seen his father. The older one doesn’t really remember Marek well and he asks me questions about him that normally a child wouldn’t have to ask about his father. It’s tough and I feel it’s very unfair. He is not dangerous. Since he’s been under arrest they have released so many robbers and rapists. All these people get out after a few months, but my husband stays in jail.”
If Marek D.’s case was just an exception to the rule then it could be described as an unfortunate anomaly, but it is not.
Documents from the European Court of Human Rights in Strasbourg reveal a string of cases where people have remained behind bars under temporary arrest for years. In three cases suspects were held for over six years.
The Ministry of Justice points out that many arrested are released after three months, but the inordinate length of time detainees can spend under temporary arrest has, along with becoming another point of criticism for the Helsinki Foundation, contributed to Poland losing 36 cases in Strasbourg related to detention—a figure the Helsinki Foundation’s Bernatt describes as a lot. Last year, out of the 17 cases the court heard concerning the length of detention on remand, Poland beat Turkey to the honor of having the most cases. Little wonder court judges have criticized Poland over the issue.
Perhaps as an attempt to address the problem, in July this year the Constitutional Tribunal ruled the legal clause governing the extension of temporary arrest too vague recommended it be tightened. The recommendation, if turned into legislation, should cut the time people can spend in jail and the numbers detained, and this could have a positive effect on another aspect of temporary arrest that has drawn fire—living conditions.
Life behind bars…
Anybody spending time under temporary arrest in Poland may well find conditions arduous. According Bruce Robinson’s parents, their son shares a 15-square-meter cell with seven other men under arrest, and remains locked up for 22 to 23 hours a day.
Along with tight restrictions on who can visit, Robinson’s post, his parents add, is routinely censored, or it just fails to arrive. The authorities also restrict his access to telephone calls; a source of particular grievance for his family as Robinson has two children. “Let’s remember that in the eight months since he’s been in there he’s had one phone call of 10 minutes, and one phone call of 40 minutes,” explains his father, David. “Bruce gets pictures from his little ones, who are three and six, but no other contact. They are at a vital stage when Bruce needs to know how they are getting along.”
Once again anecdotal evidence has the backing of independent reports. A 2004 report by the CPT into conditions at a number of Polish remand centers raises some disturbing points.
It found that Warsaw-Mokotów Remand Prison was operating at 120-percent capacity, which resulted in up to 12 prisoners being held in 18-square-meter cells. At Kraków Remand Center the CPT reports that space available for prisoners was occasionally as low as 1.7 square meters, a factor that “clearly violates the standards provided for in Polish legislation and is even more unacceptable by the CPT’s standards.” It also found that prisoners frequently spent 23 hours a day in their cells, and male prisoners allowed just one shower a week (female prisoners are allowed to shower more often).
The report also criticizes, while accepting the need for unimpeded criminal investigations, “blanket bans” on telephone calls and restrictions on visitors and letters, adding that remand prisoners should share the rights of convicts.
The government has responded to a number of the criticisms made by the CPT report and has pledged to improve conditions but, for the time being at least, overcrowding will remain a problem and prisoners will spend most of their time in their cells.
While too many prisoners in too little space as a result of temporary arrest might draw the ire of human rights groups, it is a problem not unique to Poland as other countries in Europe wrestle with the problem of prison overcrowding. If people want a more distinctive problem they perhaps should look elsewhere, and examine the possibility of political interference.
A call from on high…
Sebastian Kornhauser, for one, claims that his detention was motivated by political pressure. As a consultant in the defense sector trying to strike deals with Polish arms companies and the Indian government, he says he became aware of corruption in the state-controlled Polish defense industry, and wrote a letter to Delhi outlining his suspicions. Not long after the police arrived.
Bruce Robinson’s lawyer and family claim that his right to a fair trial was prejudiced by the involvement of justice minister Zbigniew Ziobro, who described Robinson’s arrest as a spectacular success and indicated that he believed Robinson responsible for the Katowice tragedy This is denied the ministry, which says that the minister’s statement, “referred to a high probability of Mr Robinson committing the crime he was suspected of.”
Aleksandra Dochnal, whose husband has been linked to a number of scandals involving the previous left-wing government, has few illusions as to the reasons behind her husband’s 25-month detention. “The reasons are 100-percent political,” she says. “Everybody is afraid to touch the case or do something about it because they are afraid that the press will write something about it.”
Even supporters of the temporary-arrest system have concerns over possible political interference. Krzysztof Kamiñski, the advocate in Lublin, expresses reservations over the independence of the prosecutor’s office from political interference saying that it all it takes “is one telephone call from someone at the top.”
Such allegations are nothing new to a criminal justice system that has faced frequent accusations in the past of being hand in glove with the nation’s political elites. But they do raise the disturbing notion that anybody who goes against the interests of powerful political groups can be held in jail for ages.
And for the family and friends of those detained—who are still innocent in the eyes of the law—the long wait for release or trial can be desperate. “At the moment we have no rights,” says Aleksandra Dochnal. “We are treated like criminals, even though there is no verdict.”
n Matthew Day

More soon...