Standard of access to information about the evidential base of provisional detention in European Union and Polish law

Abstract

The author analyses whether the currently binding Polish regulations of the Code of Criminal Procedure concerning access to detainees’ files comply with the provisions of Directive 2012/13/EU of the European Parliament and of the Council of 22nd May 2012 on the right to information in criminal proceedings. Assessing Polish regulations, the author concludes that they do not meet the requirements laid down in the Directive. The provisions of Polish law admit the possibility of making a decision on the imposition or prolongation of detention on remand by a court based on evidence that is significant for taking this decision but has not been revealed to the accused and his counsel for the defence. As a result, a suspect and his lawyer are deprived of the possibility of chal-lenging evidence submitted by the prosecutor. This makes the proceedings concerning detention on remand stripped of the equality of arms, and thus they are not fair.