Saturday , January 16 2021

Dr. Piotr Kyadochek: Judges must respect the principle of the presumption of innocence

  • “If the evidence is fragile, the court cannot agree to punish a person, even if the prosecution and the police are convinced that he is the perpetrator,” said Dr Piotr Kiadochni.
  • – The Prosecutor’s Office over the years can shape its narrative by publishing various information and pseudo-information to the media. “Then people are convinced it was so,” he added.
  • – It would be utopian to assume that judges do not read newspapers, do not watch television and do not know what is happening in the world. Only when they put a toga and a chain, they must be as an accessory, he emphasizes.
  • – Once, in one of the verdicts of the Strasbourg Tribunal, it was written that the case should not only be judged fairly, but also look fair. For me, this is a key question – explains Dr. Kladochek
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Mateusz Baczynski: Do we have a problem with the principle of presumption of innocence in Poland? You have the impression that it refers only to the court. Other than that, no more.

Dr. Piotr Kladochek: That is true. We are often faced with the following scenario. There is an accident, someone killed someone, raped someone, beat him. Police are prosecuting the perpetrator, detaining the suspect, and the prosecution is seeking arrest. At the same time, a report appears on television, which clearly shows what happened. And unexpectedly, the court rejected the arrest warrant because the evidence is weak and you are free. There is shock and disbelief. Why? Because on the one hand it looks like that, on the other hand we have good sheriffs – ie. police officers and prosecutors who want the best for society, ie. punish the robber. On the other hand, we have a villain in the form of a judge who “hinders” this process. Only many people forget that the judge has the strongest obligation to uphold the principle of the presumption of innocence, and if the evidence is fragile, he can not agree to punish a person, even if the prosecution and the police are convinced that he is the perpetrator. Another thing is that even if such a person proves to be innocent, he is already stigmatized in the eyes of society.

And are the courts resistant to such pressure?

I do not think so either. Please look at it from their perspective. The prosecutor files the indictment, which is usually written in such a way that all the events presented there form a coherent story. The judge is reading this and what does he see? Well-organized sequence of events, with the crime, the perpetrator and his motives. Thanks to this, it is already a bit “set” at the beginning. Of course, the lawyer can put a stick through his arms, but most of the time he does not have a story to tell. His job is that he refers only to the presented indictment and shows gaps or uncertainties in it. So not only are judges strange people. Only from a psychological point of view, you need to be really assertive to find mistakes in this coherent story, which is an accusation. In a way, it is more convenient for the court to accept this narrative.

Especially since, from a formal point of view, the judge has no reason not to trust the prosecutor. Because he also clearly states in action that he must examine all the pros and cons. He can not approach this issue unilaterally. At least in theory. But I have heard many times from judges that they are closer to the prosecutor than to the defense lawyer. Because if the prosecutor, acting objectively as a rule, is convinced that he can bring the accusation, he must have reasons for it. However, in the judge’s mind, a proxy is often a “hired” person who acts in favor of the defendant and is not obliged to be objective.

We only often deal with a vicious circle – as in the case of Ivona Gypsy. Over the years, various information was “published” to the media and suggested who the killers were. Some witnesses referred directly to media reports in their testimony. Later, the same testimony was taken into account in drafting the indictment.

Unfortunately, this is what happens in long-term investigations. Over the years, the prosecution has been able to shape its narrative by publishing various information and pseudo-information to the media. Then people are convinced that it was so. However, the bench may also have that conviction. It would be utopian to assume that judges do not read newspapers, do not watch television and do not know what is happening in the world. Only the moment they put on the toggle and the chain, they must be above it. Their task is to check the evidence, including the testimonies of witnesses who can say something because they have read about it in the newspapers. Especially if for several years there has been an answer to what happened. I personally am very sensitive to this, because I am closer to defense lawyers than to prosecutors. I remember one time a fellow lawyer said to me:

– I would be a good judge.

– Why?

– Because you initially assume that someone is innocent. And most judges I know do not think so.

is this in reality? I do not know, but I do not rule it out.

This is all the more worrying because the prosecution and the police often select witnesses and evidence that fit their thesis.

Say more, it often happens that witnesses deliberately testify as the prosecutor wanted because they were promised something, for example, the status of a crown witness. There will always be someone who has seen something or thinks he has seen something. And then, frankly, investigators are not really trying to look for evidence that it could have been otherwise. Then it’s all down. They gather evidence for this fact, the story becomes relatively coherent and there are no other versions. Therefore, it is difficult for the court to reject this version. He must be very principled to say: I was not convinced by the evidence, I do not know if the defendant is guilty or innocent, but the material gathered by the prosecution is only evidence that did not lead to the refutation of the presumption of innocence.

One of the most famous police officers in Poland, head of the X archives in Krakow, Bogdan M. Told methat the principle of “in dubio pro reo” (in case of doubt, a judgment is rendered in favor of the defendant – ed.). “On the one hand, it is right, but on the other hand, it introduces uncertainty, because any principle that has no limitation does more harm than good. Do you agree with this interpretation?

I doubt that both historians and police officers have their truth. On the other hand, from a legal point of view, the principle of “presumption of innocence” is valid and should be respected, as it forces law enforcement agencies to work properly. Therefore, I can not agree with the interpretation given by the head of Archive X. This would mean that we have a presumption of a crime. You do not have to prove anything, just do it probably. In principle: he may not be, but people want to be guilty, which is harmful for me to condemn, after all, he is not an angel.

Contrary to appearances, this border is often thin.

That is true. Because it is sometimes difficult to assess the reliability of evidence. I remember that in one case I looked at, the key evidence was dog-based osmology. Well, the first instance court denied them as not good, while the second instance court said they were not the worst. And which one was right? Therefore, we must firmly adhere to the principle of the presumption of innocence, and the court, when joining the trial, should always assume that the person in the dock is formally innocent and only convincing evidence can convince him to violate this principle. Otherwise, everyone could, in fact, be doomed.

I often get the impression that defendants are also deprived of the right of defense in the public eye. The prosecution is prominent in the media, and the defendants have been arrested and are often unable to speak to the media.

I would say that this is again a matter of the presumption of innocence. Because a person arrested in the eyes of a layman is basically guilty. If she’s arrested, there’s something to it, right? That’s what most people think. The right to defense is something else. It is the absolute basis of the rule of law. Therefore, the role of advocates in informing the public is also great. However, my view is that the defendant should have a lawyer from the outset. Not in court, but when questioned by a prosecutor or a police officer. Why? Because there are known cases when someone, for example, out of fear, could admit something he did not do. In American films, we often hear the phrase: “You have the right to remain silent. Whatever you say can and will be used against you in court. You have the right to a lawyer. If you can not afford it, you will be granted. Do you understand your rights? ”. You may laugh at that, but such a formula would be very useful in Poland. Because a police officer is always interested in getting as much as possible from an interrogated person until a lawyer arrives. I understand his approach, but later, from a trial point of view, it can disrupt the whole process.

Another problem is that in Poland, arrests are easy.

Is that true. This is confirmed by the data – from 2014/2015 the number of arrests is growing rapidly. In addition, there are cases of disciplinary proceedings against judges who did not apply the arrest. This is a clear indication of the trend we are facing. If we take the statistics, it is clear that the number of pre-trial detention applied is proportional to the number of requests of the prosecutor. This proves that they have not been thoroughly analyzed. You just have to remember that sometimes the judge has 48 hours to read the case file. So, we are again faced with the same situation – the court has a coherent narrative of the prosecutor before his eyes and it is more difficult to reject such a request than to agree to it. It then forms such an array. There is an action, a scene of arrest, maybe the court is not completely convinced, but for the sake of peace and quiet, that person is arrested for three months, which already forms the public opinion that if a person is sitting, he is probably guilty, and then, because he was already sitting, well it will be harder to get rid of the charge. However, it should be made clear that there are judges who can break out of this vicious circle and make perhaps unpopular decisions, backed up by factual arguments.

In the case of the murder of Ivona Gypsy, the court made a very surprising decision. On the one hand, it decided that the hearings were open to the public, and on the other hand, it forbade the media to report on their progress. In turn, in another high-profile case of skinning a Krakow student, he completely shut down publicity. Now no one really knows what is going on in this case.

We have two different situations here. In the first case, the control function is, in a sense, preserved. Of course, it would be bigger if you could write about the trial, but there is one. In the latter case, however, it is practically absent. Therefore, the court is also proper to inform the public about the case. I remember that we were afraid that during the trial of “Magda’s mother” from Sosnovec, the pressure of public opinion would be so great against the court that it would be difficult to count on a fair trial. Fortunately, we were pleasantly surprised. After each hearing, a press conference was held with the participation of the court spokesperson, who explained what decisions were made in this case and why. This is of colossal importance. Notice what is happening today in the case of the murder in Mishosice. There was a conflict between Mr. Comment and the father of the murdered girl. He was convinced for several years that the Command was the killer and no one explained to him properly this man.

Once, in one of the verdicts of the Strasbourg Tribunal, it was written that the case should not only be judged fairly, but also look fair. This is a key question for me. The point is that everyone – not only the parties to the proceedings, but also the public – should be convinced that the court did not neglect anything and that everything was done lege artis.

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