Chapter II
THE FREEDOMS, RIGHTS AND OBLIGATIONS OF PERSONS AND CITIZENS
PERSONAL FREEDOMS AND RIGHTS
Article 41
1. Personal inviolability and security shall be ensured to everyone. Any deprivation or limitation of liberty may be imposed only in accordance with principles and under procedures specified by statute.
2. Anyone deprived of liberty, except by sentence of a court, shall have the right to appeal to a court for immediate decision upon the lawfulness of such deprivation. Any deprivation of liberty shall be immediately made known to the family of, or a person indicated by, the person deprived of liberty.
3. Every detained person shall be informed, immediately and in a manner comprehensible to him, of the reasons for such detention. The person shall, within 48 hours of detention, be given over to a court for consideration of the case. The detained person shall be set free unless a warrant of temporary arrest issued by a court, along with specification of the charges laid, has been served on him within 24 hours of the time of being given over to the court's disposal.
4. Anyone deprived of liberty shall be treated in a humane manner.
5. Anyone who has been unlawfully deprived of liberty shall have a right to compensation.
Chapter II
THE FREEDOMS, RIGHTS AND OBLIGATIONS OF PERSONS AND CITIZENS
PERSONAL FREEDOMS AND RIGHTS
Article 42
1.Only a person who has committed an act prohibited by a statute in force at the moment of commission thereof, and which is subject to a penalty, shall be held criminally responsible. This principle shall not prevent punishment of any act which, at the moment of its commission, constituted an offence within the meaning of international law.
2. Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings. He may, in particular, choose counsel or avail himself - in accordance with principles specified by statute - of counsel appointed by the court.
3. Everyone shall be presumed innocent of a charge until his guilt is determined by the final judgment of a court.
Chapter II
THE FREEDOMS, RIGHTS AND OBLIGATIONS OF PERSONS AND CITIZENS
PERSONAL FREEDOMS AND RIGHTS
Article 45
1.Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.
Chapter 66a. Co-operation with the International Criminal Court
Art. 611h. § 1. In the event of a request of the Court for surrender of a person to the Court, as defined in the provisions of the Statute, prior to the first examination, the person whom the request concerns should be advised of his/her rights, as specified in the Statute, and of the possibility of raising an objection that a penal proceedings against him/her with regard to the conduct referred to in the request for surrender has been validly completed.
SPECIAL PART
Chapter XXX. Offences against the Administration of Justice
Article 246. A public official or anyone acting under his orders for the purpose of obtaining specific testimony, explanations, information or a statement, uses force, unlawful threat, or otherwise torments another person either physically or psychologically
shall be subject to the penalty of deprivation of liberty for a term of between 1 and 10 years.
Article 247. § 1. Whoever torments either physically or psychologically a person deprived of liberty
shall be subject to the penalty of deprivation of liberty for a term of between 3 months to 5 years.
§ 2. If the perpetrator acts with particular cruelty, he shall be subject to the penalty of deprivation of liberty for a term of between 1 and 10 years.
Article 5.
1. The accused shall be presumed innocent until his guilt has been proven under the provisions of this Code.
2. Unresolvable doubts shall not be resolved to the prejudice of the accused.
Article 6. The accused shall have the right to conduct his own defense or to avail himself of the aid of defense counsel; the accused should be advised of this right.
Article 72. When the accused does not have a command of the Polish language, the order on the presentation of charges, the indictment or a decision subject to review, or a decision concluding the proceedings shall be delivered to the accused with a translation. If the accused consents, the decision concluding the proceedings may only be announced to him, providing it is not subject to review.
Article 73. § 1. The accused while under preliminary detention may communicate with his defence counsel without other persons present, or by mail.
§ 2. In preparatory proceedings the state prosecutor who issues his permission for such communications may, where particularly justified, demand that he or a person authorised by him shall be present at such meeting.
§ 3. The state prosecutor may also stipulate that the correspondence of the accused with his defence counsel be controlled.
§ 4. The stipulations referred to in § 2 and 3 may not continued or effected after the lapse of 14 days after the date of temporary detention.
Article 74. § 1. The accused is under no obligation to prove his innocence or obligation to submit evidence in his disfavour.
Article 76. If the accused is either a minor or incompetent, his legal representative or the person in whose custody he is, may undertake to act on his favour in the proceedings and, in particular, to seek review, submit motions and appoint a defence counsel.
Article 83. § 1. The accused himself shall retain the defence counsel; or, before an accused deprived of liberty retains a defence counsel, one may be retained by another person of which the accused shall be promptly informed.
Article 86
§ 2. The participation of defence counsel in the proceedings does not preclude the personal participation of the accused therein.
Article 156. § 1. Parties as well as their defence counsels, attorneys, legal representatives and statutory agents may be permitted to examine the files pertaining to the case and to copy them. These records may also be made accessible to other persons with the consent of the president of the court.
§ 2. Upon a motion from the accused or his defence counsel, photocopies of the documents of the case shall be provided at their expense.
Article 171. § 1. The examined person shall be granted the opportunity to express himself freely within the framework designated by the purpose of the action in question, and only afterward may he be examined in order to complete, elucidate, or verify the statement presented.
§ 2. Apart from the agency which conducts the examination, the parties, defence counsel, legal representatives and experts also have the right to examine. Questions are presented directly to the person under examination unless otherwise ordered by the agency.
§ 3. Questions suggesting an answer to the examined person shall not be allowed.
§ 4. It shall be inadmissible:
to influence the statement of the examined person through coercion or unlawful threat,
to apply hypnosis or chemical or technical means affecting the psychological processes of the examined person or aimed at influencing unconscious reactions of his organism in connection with the examination.
§ 5. The agency which conducts examination shall dismiss questions specified in § 3 as well as any questions which it finds irrelevant.
§ 6. Explanations of the accused, testimony or statements given or made under conditions precluding the possibility of free expressions, or obtained against the prohibitions specified in § 4, cannot constitute proof.
Article 172. The examined persons may be submitted to a confrontation in order to clarify contradictions. The confrontation is not allowed in the case specified under Article 184.
Article 173. § 1. The examined person may be shown another person, his picture or a material object to identify. The presentation shall be conducted in a way precluding suggestion.
§ 2. When necessary, the presentation of another person may be also be conducted in the manner precluding identification of the examined person, by the person identified.
§ 3. During the presentation the person presented for identification should be in a group comprising at least four persons.
§ 4. the Minister of Justice in consultation with the Minister of Internal Affairs and Administration will issue an ordinance setting forth the technical condition for conducting the presentation.
Article 174. The contents of documents and notes shall not be substituted as evidence for the explanations of the accused or for the testimony of witnesses.
Article 175. § 1. The accused is entitled to make statements. He may nevertheless, without giving reasons for so doing, refuse to answer particular questions or refuse to give explanations. He should be advised of this right.
Article 244
2. The arrested person shall be informed immediately about the reasons for his arrest and his rights and his explanations shall be heard.
Article 245. § 1. The arrested person, upon his demand, shall be given the opportunity to contact a lawyer by any means available, and also to talk directly with the latter. The person who made the arrest may reserve the right to be present when such a conversation takes place.
Article 300. Prior to first examination, a suspect shall be advised of his rights: to give or refuse to provide explanations, or to answer questions, to submit motions for actions in inquiry or investigation, to use the assistance of a defence counsel, as well as of the right specified in Article 301 and on the duties and obligations specified in Articles 74, 75, 138 and 139. These instructions shall be given to the suspect in writing who should should confirm receipt with his signature.
Article 301. On a motion from the suspect he shall be examined in presence of a retained counsel. The absence of the counsel shall not prevent the examination from being conducted.
Article 313. § 1. If the data exists at the time of the institution of an investigation or inquiry or is collected during their course, and contains grounds sufficient for suspicion
Article 338. § 1. If the indictment complies with formal requirements, the president of the court orders a copy of the indictment to be served on the accused, summoning him to file evidentiary motions within a seven-day period.
§ 2. The accused shall have the right, within 7 days from the service of the indictment on him, to file a written response to the indictment, of which right he should be instructed.
Article 348. The hearing should be designated and conducted without undue delay.
Article 353. § 1. At least seven days should elapse between the service of notice and the day on which the first-instance hearing is to be held.
§ 2. If this time-limit is not observed with respect to the accused or his defence counsel, then on their motion, filed before the commencement of judicial proceedings, the hearing shall be adjourned.
Article 367. § 1. The presiding judge shall permit the parties to express themselves on any matter which is to be resolved.
§ 2. If one of the parties has expressed himself on a matter, every other party shall also be entitled to do the same. The closing argument shall be the right of defence counsel and of the accused.
Article 374. § 1. The presence of the accused at the first-instance hearing shall be mandatory, unless otherwise provided by law.
Article 386. § 1. After the indictment has been read, the presiding judge shall instruct the accused as to his right to give or refuse explanations or answers to questions and then ask the accused whether he pleads guilty of the act imputed to him, and whether he wishes to make any explanations and of the nature thereof.
§ 2. After examining the accused the presiding judge shall instruct him of his right to address questions to the persons subject to examination and to give explanations concerning each item of evidence.
Article 390. § 1. The accused has the right to be present at every action of the evidentiary proceedings.
§ 2. In exceptional circumstances, if there is reason to fear that the presence of the accused may have an inhibiting effect on the explanation given by his co-accused or the evidence of a witness or expert, the presiding judge may rule that the accused should withdraw from the courtroom for so long as such other person is being examined. The provision of Article 375 § 2 shall apply accordingly.
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.