Decalogue of the Rights of Demonstrators Detained by the Police
A wave of protests, involving thousands of Polish women and men, has begun across Poland. The catalyst for this civic society activity is the "Constitutional Tribunal's ruling" of 22 October 2020 (file ref. K 1/20), which states that Article 4a(1)(2) of the Act of 7 January 1993 on Family Planning, the Protection of the Human Foetus and the Conditions for the Admissibility of Terminating a Pregnancy is incompatible joke. 38 in connection with Art. 30 in connection with Art. 31 section 3 of the Constitution of the Republic of Poland. This means that abortion due to lethal fetal defects will no longer be legal, and the so-called abortion compromise established years ago has been (probably irreversibly) destroyed. And women will be forced to give birth to children with very serious, fatal defects - e.g. anencephaly. Obvious doubts and objections from citizens are raised by the contradiction of this new norm with the Constitutional prohibition of torture and inhuman treatment.
This stance, clearly inspired by the government's policy, has become an unprecedented global restriction on women's right to choose and their agency. As an example, Iran – a theocracy based on Sharia law – has more liberal abortion regulations. Therefore, it is not surprising that citizens have reacted strongly; however, this reaction often meets with a harsh response from uniformed services assigned to guard the demonstrators. There are frequent reports of interventions using direct coercion and arrests made by the police. It is therefore worth recalling the basic rights that every detained person is entitled to. (including, above all, the detained demonstrator).
It should be indicated that during demonstrations, the police most often make arrests based on Article 244 §1 of the Code of Criminal Procedure.
The police have the right to detain a suspected person if there is a reasonable suspicion that he or she has committed a crime and there is a risk of the person escaping or hiding or covering up his or her trace.aboutin a crime or his/her identity cannot be established or there are grounds for expedited proceedings against this person.
This and the following provisions also answer the question of what rights a detained person has, among which the right to information comes to the forefront.
1. First of all, it should be noted that in accordance with Art. 244 §2 of the Code of Criminal Procedure, the detained person should be arrested immediately inform about the reasons for detention. Unfortunately, especially currently, police officers very often "forget" about their duty during interventions. Therefore, you should always remember to find out the reasons for detention, especially since it involves the detainee's right to provide explanations. At this point, we should also mention something that is equally important, if not the most important. What happens when we forget about our rights? We only have to remember one thing! A police officer is obliged to inform us about the rights of a detained person, which also results from Art. 244 §2 of the Code of Criminal Procedure.
2. Article 244 §3 of the Code of Criminal Procedure provides: the right to submit or refuse to submit a declaration regarding your case by the detainee. He can therefore explain his situation, but it is particularly important to remember that the detained person is not obliged to submit such a declaration. To paraphrase popular films, we can say - he has the right to remain silent. Even more so, the detainee does not have to, and in many cases should not, sign the prepared statements. However, you can wait in silence for contact with a lawyer or legal advisor...
3. As we have already indicated, one of the basic rights of a detained person is provided for in Art. 245 §1 of the Code of Criminal Procedure the right to contact a lawyer. The provision states that: At his request, the detained person should be immediately allowed to contact a lawyer or legal advisor in an accessible form, as well as to talk to them directly; in exceptional, justified casesaboutUnder certain circumstances, the detainer may stipulate that he will be present with her. This means that, in fact, immediately after being detained, a person can call a lawyer or legal advisor and have a conversation with him, in which the specialist will advise on the best course of action to get out of the situation unscathed. That is why it is so important to immediately have the possibility (not only formal) of such contact, which is why the actions carried out by protesters, aimed at disseminating telephone numbers of lawyers and ensuring immediate support of a lawyer or legal advisor, make a lot of sense.
4. Another of the most important rights that a detained person has is: the right to contact any person indicated by him and inform him about his detention. It may be someone from your family, co-workers or friends. This is extremely important for various reasons. Firstly, it allows the detained person to feel more confident, and secondly, it gives the opportunity to calm down loved ones. It is very important that relatives know what is happening to the detained person. This allows them to control whether the proceedings against the detained are conducted in accordance with the law. These people can also communicate more easily with lawyers and inform them about the arrest, which may make it easier to protect the detained person.
5. Modern times, as well as the international scale of the problem that forced citizens to take to the streets, mean that at protests you can often meet foreigners or simply people who do not speak Polish fluently. And they can be detained by the police. However, they must remember, and it is worth reminding them, that they are entitled to it the right to use the assistance of an interpreter.
6. Foreigners must remember about another very important right they have. Because if the detained person is not a Polish citizen, he is the right to immediately contact the diplomatic or consular representation your country. Often, an international agreement between the Republic of Poland and another country assumes that the diplomatic mission will be informed about the detention automatically. It is also worth remembering that "stateless persons" can also exercise this right and contact a representative of the country where the detained person permanently resides.
7. As we mentioned, the situation during protests is often very tense. It happens that people are injured or suffer from the use of agents such as tear gas. This often precedes an arrest by the police. Therefore, it is even more important to remember that the detained person must be provided with access to necessary medical assistance.
8. A report is prepared of the arrest, which may be supplemented with a statement (i.e. explanation) submitted by the detained person, which has already been discussed in point 2. However, it is worth being aware that in accordance with Art. 244 §3 of the Code of Criminal Procedure, a copy of this report must be delivered to the detained person. This is extremely important because the report must include, among others, information such as: the name, surname and function of the person making the arrest, as well as the day, time, place and reason for the arrest, along with what crime the person is suspected of committing.
9. The law also regulates how long detention can last. These time limits should also be treated as a guarantee to protect the detained person. These issues are regulated by Art. 248 of the Code of Criminal Procedure. The police are obliged to release the detainee immediately when the reason for the detention ceases to exist. He must also release him after 48 hours from the date of detention, unless he submits the detainee to the court with a request for provisional arrest, and then if the court does not serve the detainee with a decision to apply provisional arrest within 24 hours, the police must release him. Therefore, it is clear that unless there is an arrest (based on a court decision) detention cannot last longer than 72 hours.
10. A very important right is also the one provided for in Art. 246 §1 of the Code of Criminal Procedure. Because he was detained there is a right to appeal against detention submitted to the district court. Pursuant to the wording of this provision, the detainee may demand that the validity, legality and regularity of his detention be examined. This is an important instrument that helps fight police discretion. Regardless of what declarations you signed or signed at the police station - if the detention was in fact illegal, such a complaint will be effective. It is worth using the help of an experienced lawyer to prepare it.
It's worth remembering the above points when deciding to take part in a demonstration. One must be aware that the police often rightly fulfil their role of protecting demonstrators, and one should hope that instances of aggression and unjustified arrests are isolated. While being aware of your rights, it is worth remembering that there are also people on the other side. Therefore, one should not insult or attack officers just because they are present during a demonstration; one should try to remain calm and express one's views without aggression. This simple method will help to avoid many unpleasant situations. Each of us does their job as best they can, but we are only human. Aggression does not help to win the police over to our side, but a kind word does.
This does not change the fact that we, as citizens, have the right to protest. Contrary to the voices heard in the media, spontaneous peaceful assemblies are not prohibited and are a key method of fighting for citizens' rights. In our assessment, the regulations that aim to prohibit or restrict them are obviously contrary to the fundamental principles arising from the Constitution and international agreements ratified by the Republic of Poland.
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Maciej Bujalski
Member of the KlodzinskiKancelaria.pl Team