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Currently, Ukraine is working on the new Lustration Law. The aim of the new Law is to exclude persons belonging to the circles of the former Ukrainian President Viktor Yanukovych, who was ousted in February, from holding high public positions.

The participants of the conference (including, among others, representatives of the Verkhovna Rada of Ukraine, Special Administrative Court and the Interim Special Commission for Vetting of Judges of General Jurisdiction Courts) discussed such matters as the current state of works on the new Law. One of the greatest challenges which lie ahead of the authors of the Ukrainian Lustration Law is its compliance with the standards of lustration proceedings set forth in international law.

Advocate Paweł Osik attended a session on the practical aspects of lustration and its compatibility with international regulations. “The Parliamentary Assembly of the Council of Europe established basic rules of the lustration process in its resolution of 1996,” says advocate Paweł Osik. “According to the resolution, the lustration proceedings should be founded on the principle of a democratic state ruled by law, and the lustration itself should not be used as a tool for revenge or payback,” explains advocate Paweł Osik.

In its case-law, the European Court of Human Rights (ECHR) also created standards of the lustration proceedings. “In the case Ivan Turek against Slovakia, ECHR stated that a person suspected of cooperation with secret services of a totalitarian regime should have a guarantee of their right of defence and access to all documents related to them and used in the proceeding,” adds advocate Paweł Osik.

Last week, advocate Mikołaj Pietrzak conducted training on the application of the European Arrest Warrant (EAW) for a group of judges, prosecutors and advocates from EU countries. The purpose of the training, organized in Copenhagen by the European Institute of Public Administration, was to identify the most important problems in the application of EAW in EU member states.

In May this year, the European Union’s Judicial Cooperation Unit (EUROJUST) published a report in which it listed the most significant problems in the application of EAW. Among these problems, EUROJUST notes slow communication between competent authorities in particular states and difficulties the countries experience in organizing translations of EAW into the language of the arrested person. It also notices countries’ failures to notify withdrawal of an EAW in a timely fashion, especially when the suspect or accused had been arrested. Professionals with practical experience also point out the problems related to the assessment of proportionality and the double representation requirement in cases concerning the execution of EAW.

In its report, published in May this year, among the most significant problems in the application of EAW, the European Union’s Judicial Cooperation Unit (EUROJUST) included slow communication between competent authorities in particular states, difficulties the countries experience in organizing translations of EAW into the language of the arrested person, and failures to notify withdrawal of an EAW in a timely fashion, especially when the suspect or accused had been arrested. Professionals with practical experience also point out the problems related to the assessment of proportionality and the double representation requirement in cases concerning the execution of EAW.

The execution of EAW raises serious doubts when it comes to the use of pre-trial detention. “In the recent years, the experiences with EAW have shown that some countries rarely apply pre-trial detention for the period of EAW’s execution, while other use detention as if by default. Unfortunately, Poland belongs to the second category. These differences constitute one of the more serious problems for practical enforcement of the principle of mutual trust between EU countries,” says advocate Mikołaj Pietrzak.

Advocate Mikołaj Pietrzak further notes that deducting the time spent in detention arising from the execution of an EAW in a different member state from the total period of detention to be served in the country which issued the warrant is yet another practical, unresolved problem related to the application of EAW.

“We have been cooperating with Kacper, Paweł, Ula and Ewa for several years. They are excellent lawyers, we are proud to have them in our team” – says legal advisor Artur Sidor, Partner at the Pietrzak Sidor & Partners Law Firm.

Advocates Kacper Florysiak, Paweł Osik and Urszula Podhalańska represent Clients in criminal proceedings. Legal advisor Ewa Ryczko specializes in civil law, especially in commercial law and labour law.

Advocate Kacper Florysiak specializes in transnational or extradition cases or so-called ordinary crimes. He also provides legal counsel and represents collective entities (especially companies) in criminal proceedings, in circumstances including violations of a company’s interests as a result of committing a crime, when penal and legal instruments of protection can be applied.

Advocate Paweł Osik specializes in criminal law, broadly, including cross-border proceedings and lustration cases. He is an expert in issues concerning the protection of human rights, especially proceedings before the Constitutional Tribunal and the European Court of Human Rights in Strasbourg.

Advocate Urszula Podhalańska is an expert in criminal cases, especially those of a transnational nature, in particular proceedings resulting from issuances of European Arrest Warrants and extradition proceedings. She also handles cases regarding criminal economic law, traffic offences and medical misconduct.

Legal advisor Ewa Ryczko is engaged in corporate service to companies, drawing up legal opinions as well as developing and verifying agreements and other documents as a part of ongoing legal services to entrepreneurs. She advises and represents clients with regard to legal aspects of investments and various fields of economic law and leads court disputes, especially those concerning economic relations between entrepreneurs, bankruptcy and recovery proceedings, civil liability and labour law.

Currently, the Pietrzak Sidor & Partners Law Firm’s team is composed of 10 lawyers.

More information regarding our lawyer’s areas of specializations is available here.

“The idea is that convicts should, within a reasonable time, as soon as possible, leave prisons under the control of penitentiary authorities. This way, they will be able find jobs, start or continue their education, and thus fully rehabilitate,” explains advocate Pietrzak. “We need to increase social sensitivity to the fate of those who are deprived of freedom, but not human dignity,” he says.

In a newspaper interview in Dziennik Gazeta Prawna, advocate Mikołaj Pietrzak notes that living conditions in Polish prisons are worse in many ways than they are in other European countries. One of the main problems Poland has not been able to overcome is overcrowding. To resolve this problem, many prisons adapted community rooms and surgeries to new cells.

Adw. Pietrzak stresses that rehabilitation of convicts is in society’s interest. He adds that rehabilitation is not possible behind bars. Convicts in other countries can profit from probation earlier than in Poland. The rehabilitation system in Poland should be more developed and support convicts in finding work or residence upon release. Convicts on probation should remain under the supervision of custodians and should be able to benefit from their help.

Mikołaj Pietrzak also draws attention to the fact that in Poland alternative punishments are rarely used. “We need to increase the use of electronic monitoring and to make the penalty of restriction of freedom more real,” he postulates. He notes that introducing tax benefits for business entities could encourage private companies to hire convicts.

“It is necessary to create legal mechanisms to improve the system of aid for prisoners who leave prisons in order to effectively restore them to life in society. I also expect the introduction of uniform standards in access to hygiene and medical care. I also count on changing attitudes and culture, as well as the practice of penitentiary courts.” he postulates.

Mikołaj Pietrzak points out that it is necessary to increase social sensitivity to the fate of those who are deprived of freedom. At the end of the conversation he states, “we are not even aware of the fact that every day we move around people who were in prisons. This is the case in every society. But imprisonment does not rule a man out. ”

The full Tribunal agreed only partly with allegations of the Polish Ombudsman, Irena Lipowicz, and the Prosecutor General, Andrzej Seremet, who questioned the current legal regulations. In order to prevent a loophole in the legal system and to prevent any reduction in Poland’s ability to combat crimes, the judgment will become final in 18 months.

According to the decision of the Constitutional Tribunal, the Act on Internal Security Agency, the Act on Central Anti-Corruption Bureau, and the Act on Military Counterintelligence Service do not provide necessary regulations imposing duties to destroy the data obtained by those secret services. Such data should be destroyed because they cannot be used as evidence in criminal proceedings when they contain information obtained from persons bound by professional secrecy, including advocates. The Constitutional Tribunal pointed out that nowadays even the Custom Service keeps wiretaps of individuals, even though this service is not allowed to use such information in criminal proceedings.

Two out of four judges – Wojciech Hermeliński (former advocate) and Marek Zubik – presented dissenting opinions. According to judge Wojciech Hermeliński, the obligation to destroy wiretaps obtained from advocates, even if they were obtained accidentally, does not efficiently protect the advocates’ professional legal privilege. It is crucial to create mechanisms preventing access to these kinds of materials.

Adv. Mikołaj Pietrzak, in his interview for Gazeta Wyborcza, pointed out that the ruling of the Constitutional Tribunal, emphasizing the importance of legal professional secrecy and the duty to destroy all materials that might be gathered as a result of operational control, is significant both for advocates and for their clients.

In Adv. Mikołaj Pietrzak’s opinion, in order to execute the Tribunals’ judgment, instead of implementing separate regulations in every act regulating the functioning of the secret service, only one Act on operation activities should be passed.

According to the decision of the European Court of Human Rights in Strasburg from 24^th July, 2014, Poland is obligated to pay 100,000 EUR of compensation to Abd al-Rahim al-Nashiri and 130,000 EUR of compensation to Abu Zubajda. Both men were imprisoned and tortured in the secret CIA prison in Stare Kiejkuty, Poland, in 2002 and 2003.

“The ECHR’s judgment is devastating for Poland, because it found that Poland not only violated its obligation to conduct an effective investigation, but also confirms the fact that Poland participated in a system of kidnapping and torture run by the CIA, and that Poland provided the CIA with help for kidnapping, illegal imprisonment and torturing people,” explains adv. Mikołaj Pietrzak.

The European Court of Human Rights found that the Polish Government had been cooperating with the CIA. People suspected of terrorist attacks had been interrogated in secret prisons in Poland. The ECHR came to the conclusion that Poland had violated seven rights guaranteed by the European Convention of Human Rights, pointing out the State’s failure to carry out an effective investigation (breach of Article 3), transfer of the applicant from the respondent State’s territory despite the existence of a real risk that he could be subjected to the death penalty (breach of Articles 2, 3 and 5) violation of the Applicant’s rights to a fair trial (Article 6) and the right to respect for private and family life (Article 8).

According to Americans, Al- Nashiri is guilty of the terrorist attack on the American Navy’s ship, the USS Cole, in 2000 in Yemen. He was detained in Dubai two years after the attack and transferred to an arrest facilities in Afghanistan and Thailand. Thereafter, he was imprisoned and tortured in Poland.

Abu Zubajda was detained in Pakistan in 2002 as “person no. 3” in Al-Qaeda and the closest associate of Osama bin Laden. He was imprisoned in Thailand, and in December 2002 he was transferred to Poland, where he was imprisoned and tortured.

The article can be read here

[Ewa Siedlecka, Mecenas Al– Nashiriego: Trybunał powiedział wprost, że oni tu byli torturowani, www.wyborcza.pl, 24.07.2014]

The participants discussed the impact of fundamental rights on criminal law in the European Union, the specificity of the principles governing criminal procedure and the organization of the criminal justice system, the legislative and judicial conditions for the admissibility of evidence, policies and practice in EU Member States regarding custodial sanctions, alternative sanctions, probation and disqualification and legal and enforcement mechanisms in relation to incarceration.

The seminar also included prof. Kai Ambos, prof. Jorg-Martin Jehle, Terence Palfrey, Pascal Gastineau, Ignacio de Lucas and Petra Jeney as foreign experts.

Adv. Mikołaj Pietrzak, who appeared on behalf of The Polish Bar Council, indicated in his statement that in some cases prosecutors regard the legal professional privilege as concerning only advocates but not suspects. As a result, prosecutors sometimes try to persuade suspects to reveal information about their confidential conversations with lawyers. Such practices are unacceptable, underlined Mikołaj Pietrzak. In his opinion, the legal professional privilege guaranteed by the Act on the Advocacy and the Act on Legal Advisors concerns a lawyer’s clients as well.

The participants of the panel discussion also included: Dariusz Sałajewski, Chairman of National Board of Legal Counsels; advocate Tomasz Wardyński; Wojciech Kowalewski, Chairman of the International Chamber of Commerce in Poland; Agata Zawłocka-Turno, vice-director of Department of Competition Protection in the Office of Competition and Consumer Protection; and prof. Tadeusz Skoczny, Chairman of Advisory Board to the President of the Office of Competition and Consumer Protection.

The article can be read here

[Krzysztof Sobczak, Tajemnica adwokacka tylko dla adwokata?, www.kancelaria.lex.pl, 12.06.2014]

The second day of the conference started with a panel discussion on “Does nothing justify use of tortures?”, in which adv. Mikołaj Pietrzak was one of the speakers. Mikołaj Pietrzak referred to the speech that the President of the United States of America, Barack Obama gave during his last visit in Poland, in which he mentioned and emphasized human rights protection. In response, adv. Mikołaj Pietrzak recalled the issue of torture used in the secret CIA prisons.

During the later debate, the participants discussed methods and roles of men in using torture and the reasons that so little attention is paid to this issue in democratic countries.

The participants of this panel discussion also included: Gerald Staberock, the Chairman of the World Organization Against Torture; Andrzej Poczobut, a journalist of the daily newspaper “Gazeta Wyborcza”, a dissident and political prisoner of Łukaszenko’s regime; and Rasul Jafarov, a human rights activist from the Republic of Azerbaijan.

The article can be read here

[Joanna Brzezińska, Małgorzata Zagawa, Panel dyskusyjny: „Nic nie usprawiedliwia stosowania tortur?”, www.igrzyskawolnosci.pl, 05.06.2014]

Both the defender of Radislav Krstić, adv. Mikolaj Pietrzak, and the Polish Prosecutor applied to the District Court in Warsaw to impose a penalty of 25 years of imprisonment. According to the District Court in Warsaw, that is the only possible length of a prison sentence for R. Kristić in Poland. In the grounds for the decision, Judge Tomasz Calkiewicz emphasized that according to the Polish law the only possible sentences for crimes committed by Krstić were 25 years of imprisonment or life imprisonment .

In 1995, Radislav Krstić led the assault on the Muslim enclave in Srebrnica, where soldiers conducted a mass execution of about 8 thousand people. Radislav Krstić was detained in 1998 and in 2001, as the first criminal from the former Yugoslavia, was sentenced to 46 years of imprisonment by the International Criminal Tribunal for the former Yugoslavia in the Hague. In 2012, the Tribunal applied to Poland to enable Kristić to serve his prison sentence in Poland.

The article can be read here

[Serbski zbrodniarz w polskim więzieniu: Kara 25 lat, www.rmf24.pl, 26.05.2014]