Reliable legal assistance provided in the event of arrest is crucial for the course of further proceedings. Failure to obtain the lawyer’s assistance at the very beginning of criminal proceedings may have serious consequences in its later stages. Therefore, it is important to take care of your interests immediately after being detained. Detention by the police – why is the assistance of a lawyer important? Our law firm offers comprehensive assistance of a lawyer in such cases.
Grounds for detention
The basis for arrest by the police is Art. 244 of the Code of Criminal Procedure. Pursuant to this regulation, the Police has the right to detain a person, for example, when:
- there are justified grounds to suspect that this person committed an offence and it is feared that he might escape, go into hiding or conceal traces of the offence
- identity of this person cannot be established (for example, he or she does not have a passport or other identification)
Remember that you have every right to receive an explanation of the grounds on which you were detained.
Who has a right to detain a person
In Poland, the Police may arrest you. However, it should be remembered that, in accordance with the polish legal order, other services also have the power to detain a person. The Internal Security Agency, the Central Anticorruption Bureau, the Border Guard and the Military Police may also detain you. It is worth mentioning that the Polish Code of Criminal Procedure provides in art. 243 institution of civic approach. Pursuant to the above anyone can perform the arrest in the event of being caught red-handed (i.e. at the time of committing a crime). The person apprehending a citizen is obliged to hand over the person arrested to the police without undue delay.
Detained person rights in preparatory proceedings
The law guarantees a detained person a number of rights that should be remembered:
- Immediately after your arrest, you have the right to contact a lawyer or legal advisor (by phone) and to talk to him directly. It is very important not to answer any questions or provide explanations or testimony until you consult with a lawyer;
- if you do not speak Polish, are deaf or hard of hearing, you are entitled to free assistance from a translator;
- you cannot be detained for longer than 48 hours. During this time, the authority conducting the proceedings may apply to the court for a temporary arrest or release you;
- if you are not a Polish citizen, you have the right to contact your consul or other diplomatic mission of your country;
- you have the right to refuse to provide explanations or answer individual questions, remember that you do not have to provide reasons for the refusal;
- the officer cannot force you to answer questions or make any statements;
- you have the right to request that the officers inform e.g. your closest relative or your employer about your detention;
- you have no obligation to prove your innocence. In the Polish legal system, until a final court judgment is issued stating guilt, the presumption of innocence applies. It is up to law enforcement to try to prove your guilt;
- the officer should provide you with a report on the arrest. The report should include the name and surname of the officer who detained you, the basis for the arrest and, most importantly, the date and time of the arrest!
- you have the right to challenge the actions of law enforcement authorities, including to file a complaint against detention (described below).
Obligations of the detainee
As a detainee, you also have responsibilities that you should be aware of:
- you must undergo body examinations and tests that do not violate the integrity of your body;
- you are obliged to allow your fingerprints to be taken;
- you are obliged to be photographed, but also to show yourself to other people;
- if it is necessary and does not pose a threat to health, the officer may take a swab from your cheek mucosa;
- you must submit to a search – in cases where the decision on the search was issued by a prosecutor or a court. However, it is possible to search without a resolution, but such an action must be immediately approved by the appropriate authority incontinently after it has been performed. Remember that the search cannot violate your dignity or constitute additional discomfort. You have the right to have your lawyer take part in the search – which is recommended by us due to the invasive nature of this activity. If you feel that your rights were violated during the search, you can file a complaint to the district court that has jurisdiction over your case. You have 7 days from the date of the search to file a complaint;
- you must remember that if substances (e.g. drugs) or prohibited items are found on you (e.g. firearms for which you do not have a permit), the officer may take them from you and secure them for the purposes of the proceedings;
- if you are examined by a health care professional (e.g. doctor, nurse), you are obliged to undergo psychological and psychiatric tests, as well as tests combined with body procedures (e.g. blood sampling).
Detention by the police – lawyer’s assistance in preparing a complaint against detention
If you believe that your detention was unjustified or illegal, our law firm will help you file a complaint. You have the right to appeal against detention pursuant to Art. 246 § 1 of the Code of Criminal Procedure, which states:
“An arrestee may submit an interlocutory appeal, in which he may demand that the grounds, legality and propriety of the arrest be examined.”
It should also be remembered that the right to appeal against detention results directly from Art. 41 section 2 of the Constitution of the Republic of Poland, which states:
“Anyone deprived of liberty, except by sentence of a court, shall have the right to appeal to a court for immediate decision upon the lawfulness of such deprivation. Any deprivation of liberty shall be immediately made known to the family of, or a person indicated by, the person deprived of liberty.”
A complaint against detention is filed with the district court (competent for the place of detention or proceedings), through the authority that made the detention (e.g. the Police). The deadline for filing a complaint is 7 days from the date of detention. This means that you can file a complaint even after your release from custody – then you can do it directly to the appropriate district court. If a given court finds that the detention was illegal or unjustified, it will order immediate release from custody.
If the detainee has already been released, the court, when considering a complaint against detention, cannot order immediate release. The court may then decide that the detention is groundless, illegal or irregular. Such a court decision may constitute the basis for claiming compensation for wrongful detention.
Detention by the police – lawyer’s assistance at the stage of presenting charges
Our law firm offers legal assistance in bringing charges.
If the authority conducting the proceedings finds that the detained person is highly likely to have committed a given act, it may issue a decision to present charges. The decision to present charges is immediately presented to the deteinee and he is interrogated. Then the person becomes a suspect from being a detainee. You may also become a suspect if, without a decision to present charges, the authority begins to interrogate you as a suspect. It is very important that an appointed defense lawyer is around when the charges are presented and the suspect is interrogated. This will help protect your interests as a party to the proceedings and allow you to fully exercise your right to defense.
Detention by the police – lawyer’s assistance after temporary arrest has been issued
You can be detained for 48 hours. During this time, the authority conducting the proceedings may apply for temporary arrest of the detained person. Temporary arrest is the only preventive isolation measure provided for by Polish law. Therefore, decisions on its application were left to the competence of the court. The court has 24 hours to decide on provisional arrest. It follows that without a temporary arrest order, the maximum detention period may be 72 hours. The authority’s request to apply temporary arrest is considered by the court at a meeting. It should be remembered that although the Act clearly defines the grounds for applying temporary arrest, this measure is abused by the judicial authorities. Courts very often decide on its application despite insufficient proof of the necessary conditions. It is therefore important that an appointed defense lawyer takes part in the activities related to issuing a decision on temporary arrest. The participation of a professional attorney may protect us from being in custody.
It should be mentioned that the Polish legal system in practice does not establish an upper limit for the use of temporary arrest. The first court decision may be issued for a period of up to 3 months. However, there is a legal basis that allows extending this period to 12 months. Moreover, the law allows this period to be extended by the appellate court at the request of the prosecutor conducting the proceedings. In the event of an appellate court ruling on temporary arrest, the law does not provide for an upper limit on the time for which this measure may be imposed.
Complaint against the decision on temporary arrest
If you believe that the court has ruled incorrectly, you have the right to appeal against the decision. Our law firm will help you in matters related to filing a complaint against wrongful temporary arrest. The deadline for its submission is 7 days from the date of issuance of the contested decision. Theoretically, the court should consider such a complaint within 3 days, but in practice this time is often longer.
If the court decides that the application of temporary arrest is unjust, it is reasonable to apply for compensation from the State Treasury for property losses (inability to earn money while in detention) or compensation for physical or mental suffering. This claim expires after one year from the date on which the decision on unfairness of arrest becomes final, which should be remembered.
To be able to effectively claim your rights and protect your interests, it is appropriate to seek the help of a lawyer. A professional attorney will ensure that all deadlines and formalities are met, which will allow you to effectively pursue your case.
Detention by the police – lawyer’s assistance – offer of the Law Firm
In cases requiring urgent intervention after being detained by the police, we provide assistance primarily in Warsaw and the surrounding area. You can contact us by filling out the form available here. We operate throughout Poland. Currently, apart from the Warsaw office, the Law Firm’s branches are located in Wrocław and Bydgoszcz.
