Electronic detention as a new preventive measure in Polish criminal proceedings

The Commission for the Codification of Criminal Law, operating under the Ministry of Justice, has prepared a draft amendment to the provisions of the Code of Criminal Procedure, which provides for the introduction of a new preventive measure: electronic arrest (hereinafter: “EA”).

Electronic arrest will take the form of “house arrest,” which is used in many other countries around the world and in the EU. This will allow monitoring of the defendant’s behavior while the defendant is outside the prison. It is an alternative to traditional pre-trial detention in a penitentiary or detention center.

What is electronic arrest in Poland?

Electronic monitoring is a form of ‘home detention’ in which a suspect or accused person:

• stays at their place of residence,
• wears an electronic monitoring bracelet,
• and is under the control of the Electronic Supervision System.

The main goal of the drafted bill is to reduce the abuse of pre-trial detention, which is used too often and for too long in Poland, especially when there are no concerns of obstruction in the investigation.

When can electronic detention be applied?

According to the amendment, electronic detention can be applied if the following conditions are met:

• Availability of technical requirements – cell phone coverage, access to electricity.
• Consent of adult household members – in fact, co-inhabitants must accept the presence of the accused in the house.
• In exceptional situations, it would be possible to order EA even despite the objections of the household members, but only if its implementation does not entail undue inconvenience for the cohabitants and slightly interferes with their privacy.

Who will decide on electronic detention?

The current draft stipulates that, as a rule, electronic arrest will be applied only by the court (Article 265a § 2 of the Code of Criminal Procedure).

“Traditional” pretrial detention applied by the court will also be able to be changed to electronic detention by the prosecutor (Article 253 § 2a of the Code of Criminal Procedure).

Electronic detention is intended by the drafters to last twenty-four hours a day. When determining the days of the week and the hours when the defendant is allowed to leave the place where this measure is carried out, the court will take into account the need to exercise his rights.

The time during which an electronically arrested person is allowed to leave the places where the measure is carried out will not be allowed to exceed 3 hours per day during the first three months (Article 265a § 5 of the Code of Criminal Procedure).

Advantages and limitations of the new solution

The introduction of a new solution, which is a kind of house arrest, should be assessed positively. 

It will certainly not solve all the problems existing in Poland with regard to the use of pre-trial detention, but it should limit its use from the very beginning of the investigation.

For many proceedings, electronic arrest will be a sufficient safeguard. 

It is certain, however, that in the case of a high risk of a case being mishandled, ‘traditional’ pre-trial detention will continue to be the leading preventive measure. This is because under electronic detention, the fear of obstruction cannot be ruled out, as the accused will still have access to a computer or telephone.

It may also be an advantage that the period of electronic detention will be counted as part of the sentence imposed.

A draft bill drafted by the Criminal Law Codification Commission has been submitted to the Criminal Law Department of the Ministry of Justice and will be subject to further consultation.

Want to learn more? If you are interested in the assumptions of this change and the further course of this project or any other issues related to criminal proceedings in Poland, please contact our law firm at [email protected].