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Poland: Infringements of the right to fair trail and personal freedom (1)

01 January 2008

Key case on the infringement of presumption of innocence and the abuse of pre-trial detention pending in the European Court of Human Rights

The European Court of Human Rights will deal with one of the loudest political affairs in the former government's "anti-corruption campaign", the case of Miroslaw Garlicki. The claim was brought to Strasbourg in August and immediately admitted to the "fast track" procedure. The Court communicated the case to Polish government in October. Such exceptionally fast pace proves that the ECtHR is seriously concerned about the issues arising in Garlicki's case, in particular violation of the right to fair trial and unlawful use of pre-trial detention.

Doctor Garlicki - a renowned cardiac surgeon and a head of prestigious Cardiac Surgery Clinic in Warsaw - was detained on remand from February to May 2007 under the charges of homicide of a patient, exposing a patient to a direct danger to his life or health, taking bribes, harassing a member of staff and forgery of medical documentation. The type of 'preventive' measures used in the proceedings and attitudes demonstrated by both the prosecution and key government officials made this case a flagrant evidence of a deepening crisis in the Polish justice system.

Seizure: disproportionate measures and media coverage

On 12 February 2007, when Dr. Garlicki was preparing for a scheduled operation, a dozen masked and armed officers of the Central Anti-corruption Bureau (CAB) stormed the Cardiac Surgery Clinic. The officers threw the applicant to the floor, pinned his head to the floor and then handcuffed his hands behind his back. Needless to say, Polish law permits for the use of such measures only if the suspect poses direct danger to others or is likely to escape the justice and resists the officers. In this case, the actual purpose of engaging anti-terrorist measures was not a legal one but, clearly, socio-technical. It dwells on the popular, common-sensical understanding that masked, armed officers are used to capture only 'real' criminals. The public opinion is, therefore, quick to conclude that if the prosecution resorts to such radical measures there must have been a good reason to do so. The CAB fuelled this prejudicial reasoning by filming the whole operation and releasing it in public media almost immediately after the arrest.

Press conference: trumping presumption of innocence

During a press conference held on the day of the arrest and broadcast live by all major television and radio stations, the highest-rank state officers established Dr. Garlicki's guilt beyond reasonable doubt, clearly concluding that the prosecution can do without contradictory court proceedings.

The Head of the CAB stated in respect of the charges concerning bribe-taking:

"The information gathered and the evidence obtained mean that today we can tell you clearly: Doctor G., acting the part of a virtuoso of Polish cardiac surgery, is a ruthless and cynical bribe-taker. We have knowledge about several dozen bribes accepted by this doctor"

The Minister of Justice - Prosecutor General stated in respect of the charge of homicide:

"In this unfortunately sad discovery of the truth we can say this was an important event in the true sense of that expression in that no-one else ever again will be deprived of life by this gentleman".

The main news programme in the public TV started with the news about Dr. Garlicki which was entitled "Doctor Death". The newsreader stated that "He had murdered a patient because he did not get a bribe from him" and informed viewers that the applicant had committed a crime of homicide and accepted bribes. The Prosecutor General's comments in Garlicki's case prompted strong criticism from the former Ombudsman, the National Bar Council, the Polish Helsinki Committee and others. The ECtHR will consider the impact of these statements in terms of the right to fair trial and the presumption of innocence.

Arrest: not fully independent judge, not quite convincing justification

Garlicki claims also infringements of personal freedom and the right to fair trail in that his arrest was ordered by not fully independent assistant judge and without convincing legal justification.

Assistant judges in Poland are far more likely to succumb to political pressures due to the lack of adequate legal safeguards for their independence. First of all, having completed their training and passed judicial exam, they are appointed by the Minister of Justice - a political member of the government. Secondly, the Minister of Justice may dismiss an assistant judge from his post, having obtained the consent of the Regional Court's college (kolegium). Polish Constitutional Tribunal has already addressed this systemic problem in its recent judgement, obliging the government to reform the judiciary system and deprive assistant judges of the competence to take binding decisions.

As regards the justification of Dr. Garlicki's arrest, it was based on "a strong likelihood that the suspect committed the offences with which he is charged" and "the real risk that a severe penalty might be imposed on him may thus induce the suspect to undertake illegal actions aimed at obstruction of the proceedings". These are standard, 'catch-all' formulas notoriously used by Polish judges to justify detention orders. Lack of adequate and verifiable justification for ordering and extending pre-trial detention in Poland has been strongly criticised by the ECtHR on numerous occasions. On 7 May 2007 the Regional Court, on an application from the prosecution, prolonged the detention until 11 August 2007, stating almost identical and equally vague reasons. Garlicki appealed and, finally, was released by the Court of Appeal, which dismissed all grounds invoked by the prosecution to justify his detention.

Garlicki 'less guilty' but what next?

Week after week from his arrest, Dr. Garlicki was being found 'less guilty' in media releases, with key public figures and medical experts taking his side in public debate. Eventually, the prosecution had to drop the gravest charges and Dr. Garlicki is to be tried under weak allegations of corruption and mobbing.

Unfortunately, this was by no means an isolated event during the political ruling of Law and Justice. Outright disregard for the main principles of fair trial, such as the presumption of innocence, politicisation of the prosecution and notorious abuse of police and CAB powers became recognisable characteristics of Kaczynski's style of governing.

Current government led by Donald Tusk took over with a promise to reform and depoliticise the prosecution and push for deeper reforms of the whole justice system. The government has already drafted its first legislative proposal, finally providing for legal safeguards that might ensure political independence of the prosecution. The main proposition is to separate the office of the Prosecutor General from that of the Minister of Justice. What must seem fundamental, if not obvious, in any democratic system based on the division of powers is still to be be decided by the Polish Parliament.