Police detention and arrest in Poland Part II
Apparently, information’s related with police and legal cases are nowadays very popular in Poland. Nothing strange about it, taking into the consideration last months. Previous post about Police detention in Poland (click) brought a lot of attention and gave a lot of a feedback to analyze. It is a proof, that people’s self-awareness is growing. As I mentioned in previous article, I did not cover all subjects related with Police detention or arrest. Therefore, I am releasing second episode, where I also took into the consideration, the comments received from previous post. So, table of content from the article first:
- When the police can check and search us?
- What is the difference between “inspection” and “search”?
- Traffic control by the Police
- For how long can the detention be extended?
- Compensation for wrongful pretrial detention or arrest
When can the police check and search us?
Not everyone knows that a “personal inspection” (kontrola osobista) and a “search” (przeszukanie) are technically different things, although both activities seem to be similar to each other. In both cases, “the goal” is to check the content of the inspected person’s clothing and items on his or her body. It is primarily about finding items that may constitute evidence in a later case. It might be also looking for dangerous items such as knives, firearms, or any other type of weapon.
The most important prerequisite for undertaking a personal inspection by a police officer is the fact that there is a justified suspicion that a crime or misdemeanor has been committed. The word “justified” is the key word here, because there must be some circumstances that caught the attention of the policeman. Hence, the personal inspection cannot be carried out in addition to the IDing – without any reason. However, it is enough to suspect that a prohibited act has been committed. For exmple, if a policeman receives a report that someone has drugs in a given place, he will be justified in this case to inspect people in the area of the scene.
Personal inspection can be carried out not only by police officers, but also by City Guards (Straż Miejska). It is very important, that the control should be carried out by a person of the same sex as the controlled person. This rule does not apply when the inspection must take place immediately. So, the best example would be related with the situations, when someone runs away from the police or behaves aggressively.
What is the difference between “inspection” and “search”?
A search of a person is similar in the nature to a personal inspection. It can be carried out to find things that may constitute evidence in the case. Of course, this must be supported by reasonable grounds for believing that the person is in possession of the items, which is linked to the suspicion of a crime or misdemeanor. As in the case of a personal check, the search should be made by a person of the same sex.
What distinguishes a search from a personal inspection, is the omission of the prohibition on the inadmissibility of revealing parts of the body covered with clothing.
Police officers will be able to search for example socks, but also ask for the removal of some parts of the clothing of the searched person. Before the search takes place, the policeman has to inform you about the purpose of the search and call for “searched items” to be released. The search may also be carried out by a public prosecutor or a policeman on the basis of a court order. “City Guards” cannot perform the search. In addition, there has to be protocol written from this activity.
Traffic control by the Police
The procedure indicating how a routine police traffic check should be carried out is described in the ordinance of the Police Act. Such activities may be carried out by both “uniformed officers” and “plain clothes policemen”. Roadside checks will be slightly different in both cases. Plain clothes officers can stop the vehicle only in built-up areas. They are also required to always show a badge or service card.
Roadside checks begin with the vehicle stopping. For this purpose, the policeman gives signs with his hand or with a shield, and in conditions of limited visibility – with a special flashlight with a red light. Stopping the vehicle for inspection, with few exceptions, should be performed in a place which do not pose a threat to regular traffic. Also, police officers may carry out checks in places where parking is prohibited. In such a situation, a driver detained for inspection should park his car right behind the police vehicle.
Routine Police traffic checks – how to behave?
Properly conducted police control begins with presenting the driver the reasons for stopping the vehicle. The police officer should also provide his / her full name and rank. Routine roadside inspection consists of several fixed elements. The policeman will first check whether the driver has the right to drive, and whether the car has a valid insurance policy. From 1st October 2018, drivers do not need to have a registration certificate or a receipt confirming the payment of the insurance. This type of information will be checked by the officers in the IT system. In addition, from 5th December 2020, a new service was introduced as part of the mObywatel application which works on the base of ePuap.
I described ePuap already in separate article. mObywatel, allows you to identify yourself with mobile app instead of a physical document. You may store there your ID as well as driving license, or insurance of your car. Most probably, in the future, it might be used as well to confirm status of your vaccination against COVID. But this is off topic – I will make separate article dedicated to mObywatel. Let us continue with road check. In case of doubt, the police officer has also the right to check the technical condition of the vehicle. Such control may concern:
- breaking system,
- steering system,
- lights and electrical equipment,
- tires and wheels,
- chassis and equipment elements – fire extinguisher which is obligatory in Poland and tachograph in case of a professional truck driver,
- exhaust emissions and fuel or oil leakage.
If the result of the inspection is negative, the police officer notes the detention of the registration certificate in the CEP IT (Centralna Ewidencja Pojazdów) system and issues a receipt to the driver.
Under the amended regulations, officers can also check and record the mileage of the inspected vehicle (!). The driver should, in turn, allow the policeman to read the meter readings. An exception to this rule, may be a roadside check carried out in a connection with the sobriety test, where the control procedure has been shortened to the minimum. If an officer has reasonable suspicions that the driver has committed a crime, he or she may also ask for the trunk to be opened and inspect the inside of the vehicle. The rules here are the same as in case of personal search.
For how long can the detention be extended?
I will start with quote from Mario, who asked about maximum arrest time.
So arrest is a maximum of 24-48 hours. What if they are not able to determine your identity in that period of time?Mario
Law enforcement agencies may detain the unit for a maximum of 48 hours. Regardless of whether this period was sufficient to carry out activities with the detained and allowed the authorities to collect the necessary data, the detainee should be released before its expiry. The exception is when the prosecutor applies to the court for the application of pre-trial detention. The application for pre-trial detention must reach the court within these 48 hours. The court then has 24 hours to decide on your pre-trial detention. During this period, court must schedule a detention hearing and issue an order for pre-trial detention or for refusal of pre-trial arrest. If within these 24 hours a positive decision on temporary arrest is not made, the detainee should be released immediately.
But once again – in the era of digitization, checking someone’s identity should not require 48 hours. Especially if you want to cooperate. I hope that this answers the question. But here comes the another one: “what if I was wrongfully detained and my rights have been broken?”
Compensation for wrongful arrest – police detention in Poland
You are entitled for compensation and redress if you were deprived of liberty in the course of the proceedings as a result of detention or the application of a preventive measure in the form of temporary detention, and then a final acquittal or a decision to discontinue the proceedings was issued against you.Source: infor.pl
This means, that you are entitled for compensation only if your arrest or detention was “clearly unfair“. In other words, the reality of your case must clearly indicate that the application of these measures to you should not take place at all or should not last so long. Therefore remember, that the mere issuance of an acquittal never prejudices that the detention or pre-trial detention in your case was “clearly unfair” (cf. Art. 552 § 4 of the Code of Criminal Procedure).
That is a tricky one. In other terms. If you were detained but released, it doesn’t mean that your detention was “clearly unfair”. Police officer could have detained you, because: “the description of your face matched profile picture from the wanted poster”. It is unlikely, but I wanted to give you context here.
Where and when do I submit my claim for wrongful arrest or detention?
You should submit such a request with the district court, in the district where you were released from the arrest. Such a request should take the form of a procedural document / pleading (pismo procesowe), which is known as a claim for compensation (wniosek o odszkodowanie). There are no court fees involved in submitting such a request. You should submit the request within one year:
- in the case of pre-trial detention – from the date on which the judgment concluding the proceedings in the case becomes final;
- in the event of detention – from the date of release.
You are also entitled for compensation for wrongful conviction and / or punishment. You may apply for such compensation, if:
- it is a result of a cassation or reopening of proceedings, you have been acquitted or – not with regard to misdemeanors – sentenced to a lighter sentence;
- following the revocation of the conviction, the proceedings were discontinued due to circumstances that had not been taken into account in the previous proceedings.
You should submit a claim for compensation to the district court in whose district the first-instance judgment was issued in your case, within one year (in the case of petty offenses – 6 months) from the date on which the judgment giving rise to compensation and redress becomes final (see Articles 114–115). Code of conduct in misdemeanor cases).
“Could you tell me please, if in case when I was arrested…”
I will be completely honest with you, in order to avoid approaching me with this type of the questions in the future. I love to help. But. I will not be able to advise in any specific case like this, since I am incompetent for doing it. I have no legal education. If any of the cases related with wrongful arrest or conviction, would happen to me, I would ask a lawyer or legal advisor for help. The reason for releasing these articles (Police Detention part I & II), is giving you information, about “what to expect in such cases”. Also, giving you the awareness about your rights and duties, in case of interaction with the police officer. I hope that I made my point.
Still, in case of compensation claims – it is possible to win. One of the best examples, would be given by “Iwona W.”. Lady won the case and received 1,800 zł from the state treasury, for undoubtedly wrongful detention by the police. She was participant of the counter-manifestation on 11th November 2017. Click here to open the link to the source in Polish.
Summary of Police detention in Poland – part II
This article has already 2000 words at this place and I thought that the second part will be a little bit shorter. I did not touch yet the “Civil arrest”. Anyway, I hope that anyone reached so far 😉 Allow me to confirm, that in mean time of preparing second episode of this article, I received a material for third part related with “Self-defense and protection against burglars”. Only this, combined with “Civil Arrest”, will make a third episode realted with legal cases and citizens rights. Do you want me, to touch any specific “police legal case” subject, which I did not cover yet? What are your thoughts, after reading this article? Let me know in the comments below.
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infor.pl; prawo.pl; natemat.pl/; uniqa.pl/porady-komunikacja; https://www.karh.pl/prawo-karne/zatrzymanie-i-tymczasowe-aresztowanie-2/; The part of the text comes from the handbook published by the Ministry of Justice: “Citizen in criminal proceedings” (Obywatel w postępowaniu karnym) co-financed by the European Social Fund.Source