Month: November 2015

As of November this year, the team of advocates at the Pietrzak Sidor & Partners Law Firm will hold duty hours at a special phone number: +48 733 338 717. The service will be available 7 days a week between 6 a.m. and midnight.

“Those first hours after arrest are crucial for further stages of criminal proceedings,” says advocate Miko_aj Pietrzak. “But our experiences show that access to a lawyer immediately after arrest is limited. By setting up this special contact number, we want to provide arrested persons with professional legal aid as early after the arrest as possible and ensure the best enforcement of the right to a fair trial,” he adds.

When accessing legal aid as part of the intervention duty hours, arrested persons (and persons close to them) will be able to receive immediate legal advice and information on the rights of arrested persons. They will also be able to ensure the participation of a lawyer in procedural acts, such as for example a hearing.

In the light of Polish law, an arrested person has the right to consult with a lawyer and can request contact with a lawyer immediately after arrest. By establishing this form of legal aid, the Pietrzak Sidor & Partners Law Firm would like to provide arrested persons and persons close to them with easy and immediate access to lawyers who specialise in representing clients in criminal proceedings.

The lawyers at the Pietrzak Sidor & Partners Law Firm have extensive experience in the area of criminal law. The Law Firm’s offer includes, among others, comprehensive representation of individual clients in criminal and executive criminal proceeding (more information available in Specialisations).

Currently, Polish law does not define the term “consortium”. However, according to the view dominant in case-law, a consortium agreement is a private partnership agreement. Legal doctrine emphasises that a consortium agreement is an “atypical private partnership agreement.” The differences between a normal private partnership agreement and a consortium agreement include, among others, the fact that consortium members do not have to provide contribution, which is a rule in private partnership agreements. Additionally, consortium members participate in profit and losses on different terms than private partnership members.

As legal advisor Artur Sidor and Anna Matysiak point out in their article, a consortium agreement consists of three elements: clauses which are common to all consortium agreements, clauses which are dependent on the consortium type and additional clauses. “Contractors have freedom in shaping the content of consortium agreements. The ordering party cannot interfere in the content of the agreement; in particular, they cannot demand that specific clauses be included. What is more, some aspects of the internal functioning of a consortium, for example mutual financial settlements, can be specified in a separate agreement whose content will only be known to consortium members, and will not be disclosed to the ordering party,” the authors note.

According to the provisions of the Public Procurement Law, each consortium member has the status of a contractor. This means that each of them is jointly and severally liable towards the ordering party for the obligations set forth in the contract. “Internal arrangements between consortium members, concerning their performance of particular obligations adding up to the consortium’s entire obligation set forth in the contract, do not influence the liability of consortium members,” the authors emphasise. Joint and several liability of contractors serves to protect the interests of the ordering party as a creditor and to secure the performance of the contract.

Norbert Rembak was arrested in 2005. The proceedings in his case lasted 8 years and all this time the applicant remained in detention on remand. What is more, for over 3 years the applicant was classified as a dangerous detainee which had a number of consequences, such as for example his placement in a single cell and the use of other measures within the special security regime.

In his application to ECHR, Norbert Rembak claimed that his excessive pre-trial detention and prolonged classification as a dangerous detainee violated the provisions of the Convention.

“When justifying its decision to accept the government’s unilateral declaration, ECHR relied on its previous case-law concerning the use of a dangerous detainee status. In 2012, in the case Piechowicz against Poland, ECHR ruled that the dangerous detainee status should be used exceptionally and only for a period when it is necessary,” says advocate Paweł Osik who, together with advocate Mikołaj Pietrzak, represented Norbert Rembak before ECHR.

It has been the second case of this type considered by ECHR recently. At the beginning of November, ECHR accepted the government’s unilateral declaration in the case Hernandez against Poland. The government acknowledged a violation of the Convention in that case with regard to the excessive length of the applicant’s pre-trial detention and criminal proceedings (more information available here).

This press information was prepared with consent of the applicant who was represented by the lawyers from the Pietrzak Sidor & Partners Law Firm.

The applicants’ son was arrested by the police in February 2010 while he was going home with his friends. The police officers transported him to the police station. He did not hear any charges, and the police officers allegedly released him in the morning. Ms Olszewska  called her son that morning. The conversation was short and she received only partial answers to her questions. She later admitted that she thought it had not been her son on the phone. It soon turned out that the applicants’ son disappeared. When the applicants inquired about their son at the police station where he had been held, they were informed that their son had not been there the previous night. Only after a couple of days were the applicants informed that their son in fact had been in the police station that unfortunate night.

The search for the applicants’ son lasted for almost three weeks. At the beginning of March, the body was found outside the city, and the police officers who had arrested the applicants’ son in February were the first ones at the scene.

“The investigation into the disappearance and death of the applicants’ son lasted for almost three years and, from the start, was full of mistakes – improperly secured evidence, unquestioned witnesses and finally unchecked traces,” says advocate Mikołaj Pietrzak who together with advocate Urszula Podhalańska represented the applicants in the proceedings before ECHR.

The investigation was discontinued in January 2011, but the court order the case to be reexamined. For the second time, the investigation was discontinued in 2013. In the rationale for discontinuation, the prosecution stated that there was not enough evidence to unambiguously confirm the course of actions the night when the applicants’ son was arrested. Four months later, in May 2013 the court upheld this decision.

When considering the application, ECHR stated that the lack of an effective investigation into the death of the applicants’ son violated art. 2 of the European Convention on Human Rights in its procedural aspect. ECHR emphasized that effectiveness of proceedings does not rely on their results, but on the efforts that are undertaken. “The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy […] Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard [of effective investigation – editor’s note]”, wrote the judges in the judgement’s rationale.

„No judgement can return their son to the applicants,” says advocate Mikołaj Pietrzak. “But today’s ruling is at least a drop of justice which Mr Olszewski and Mrs Olszewska could not receive from Polish courts,” he adds.

This press information was prepared with consent of the applicants who were represented by the Pietrzak Sidor & Partners Law Firm.