It can be a nightmare to become entangled in the Polish legal system. You could be charged with a crime, for instance, and thrown into pre-trial detention. This detention could even last two or three years. One person was even held for nearly eight years.
Abuses in the court system, lawyer Adam Bodnar of the Helsinki Foundation for Human Rights told me, constitute the most important human rights problem in Poland: "the intersection of the deprivation of the right to liberty, the right to defend yourself, the right to a lawyer and legal aid, plus the right to court and effective trial."
Part of the responsibility for these legal problems lies with Polish prosecutors. "They start with big allegations," Bodnar pointed out when we talked in his office in Warsaw in August 2013. "Then it appears that those accusations are unfounded, but there's not sufficient courage in prosecutorial operations to admit that they're wrong. They just go on and on with those cases, and they keep going on to the next stage even when people can easily see that the case is phony and nothing will come of it. We had several interesting cases recently where, after a couple years of litigation, the defendants were declared innocent. It was a big scandal. One of the reasons is the lack of responsibility or the sufficient efficiency of prosecutors. Another is the failure of the courts to perform any control function over prosecutors."
Poland's human rights problems don't end with the court system. "We have problems with prison conditions, and I don't mean just typical prisons and jails," Bodnar continued. "We also do monitoring of conditions for youngsters in detention centers, which are pretty terrible, and it seems like no one really cares. More people care about conditions in prisons than in detention centers for youngsters."
Then there are issues with discrimination against minorities: LGBT, the disabled, ethnic minorities. "But the number of national and ethnic minorities is quite small, and they are quite dispersed in Poland," he pointed out. "So, on a daily basis, you can't see it. But it exists. There are strong levels of racism and anti-Semitism. Fascist groups have emerged, though they are not as powerful as in Hungary or even Germany. But the use of hate speech by these groups is still a problem."
The Helsinki Foundation also handles cases involving freedom of speech, access to public information, and anything related to privacy. "In my opinion, the powers of the secret services are not regulated properly," Bodnar concluded. "The parliament talks about changes, but they've stopped at the level of preparatory work. They're not interested in changes. As an NGO, you might have feeling that you have success because the government declares that it will reform. But if you compare the situation with several years ago, not much has changed."
We talked about the concept of strategic litigation, the challenge of getting national governments to implement European court judgments, and the importance of exporting the best practices of Poland's watchdog organizations.
The Interview
What are the major HR challenges here in Poland? You've mentioned the abortion issue. There's the ethics-in-school question. The third one you mentioned was data protection and the protection of sources for journalists. If you had to make a hierarchy of violation, what would be the priorities?
The major violations are connected to the right to court and the effectiveness of court proceedings. In Poland, you have a right to an efficient judiciary. But it's always a risky business to what extent your trial will be speedy and efficient. Without the right to court, you don't have the right to other remedies. You can't enjoy protection in other spheres of life. For example, if you have family problems, such as problems concerning the custody of a child, you can't expect the court to make a speedy decision. It can take sometimes years. So you end up with other violations of your rights because of the inefficiency of judiciary.
Even in the Wroblewski case, it was great because we won. It was quite a speedy case, given the circumstances. But took it two years. Sometimes, lengthy trials are coupled with pre-trial detentions. People are detained as they wait for a judgment in the case.
How long is this detention period?
The record is seven years and 10 months.
In pretrial detention?!
Without a judgment of a court of first instance.
How does that compare with other countries?
Just incomparable. It is common to be two or three years in in pre-trial detention in jail here.
Is bail available?
It is available, but it is not too popular. The court is hesitant to use bail as a security mechanism because of the fear that the defendant will escape or will manipulate evidence. Thanks to the judgments of the ECHR and thanks to a few good cases in which people sued for compensation for unlawful detention, this practice has decreased. We are still far away from U.S. standards. But of course the United States has other problems with its justice system.
So, this intersection of the deprivation of the right to liberty, the right to defend yourself, the right to a lawyer and legal aid, plus the right to court and effective trial: that combination is the major human rights problem in Poland.
Does everyone here have a right to a lawyer, including court-appointed lawyers?
To read the rest of the interview, click here.