CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 mai 2023

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display:inline-block } .s3CAF9CA4 { width:8.72pt; font:7pt 'Times New Roman'; display:inline-block } .sEB3FA797 { width:8.43pt; font:7pt 'Times New Roman'; display:inline-block } .s8508A14D { width:8.94pt; font:7pt 'Times New Roman'; display:inline-block } .sA44B7922 { width:9pt; font:7pt 'Times New Roman'; display:inline-block } .sE9C9855C { width:7.91pt; font:7pt 'Times New Roman'; display:inline-block } .s40DF141B { width:8.35pt; font:7pt 'Times New Roman'; display:inline-block } .s5C5C410E { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s68D1564D { width:34.89pt; display:inline-block } .s543FF837 { width:151.1pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }   FIRST SECTION CASE OF LALIK v. POLAND (Application no. 47834/19)       JUDGMENT Art 6 § 3 (c) • Informal questioning of intoxicated applicant after arrest, without a lawyer and without sufficiently apprising him of his defence rights • Applicant’s statements noted in official note by a questioning officer and not in a formal record as per domestic law • Reliance by domestic courts on statements made at that stage in findings of guilt • Existing procedural guarantees insufficient in case circumstances • Criminal proceedings as a whole not considered as fair   STRASBOURG 11 May 2023   FINAL   11/08/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Lalik v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak , President ,   Krzysztof Wojtyczek,   Alena Poláčková,   Ivana Jelić,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   47834/19) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Przemysław Lalik (“the applicant”), on 28 August 2019; the decision to give notice to the Polish Government (“the Government”) of the complaint concerning lack of possibility to consult a lawyer in the earliest stages of the investigation and the domestic courts’ reliance on his incriminating statements from the informal questioning, detrimental to his defence, given without the presence of his lawyer; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the Helsinki Foundation for Human Rights and Fair Trials, who were granted leave to intervene by the President of the Section; the decision to reject the unilateral declaration presented by the Government; Having deliberated in private on 11 April 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant complained under Article 6 § 3 (c) of the Convention that his conviction for murder committed with particular cruelty ( zabójstwo ze szczególnym okrucieństwem ) had been largely based on his informal statements, which had been taken without ensuring basic procedural guarantees for his defence. He submitted that the police officers who had informally questioned him after his arrest had not informed him of his rights, nor had they offered him the possibility to consult a lawyer. THE FACTS 2.     The applicant was born in 1995 and is currently serving a prison sentence at Zamość Prison. He was represented by Mr A. Adamczuk, a lawyer practising in Zamość. 3.     The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs. 4.     The facts of the case may be summarised as follows. Events leading to the death of T.B. and the applicant’s arrest 5.     In the early evening of 26 January 2016 T.B. and M.D. were consuming alcohol close to T.B.’s flat. In the evening M.D. decided to walk T.B. home, as T.B. was heavily intoxicated. On their way home the two men encountered the applicant, who also appeared to be under the influence of alcohol. The applicant offered to buy them beer, which the three drank together. The applicant then bought three more beers and at approximately 8.20 p.m. M.D. left for home, leaving T.B. alone with the applicant. 6.     Following M.D.’s departure, the applicant and T.B. entered the building in which the applicant’s flat was located and went to the basement. Having finished his beer T.B. collapsed to the floor and lost consciousness. The applicant tried to lift him up but was unable to do so. He then allegedly went through T.B.’s pockets in an unsuccessful attempt to recover a debt (an   allegation made by the prosecution, which the applicant denied during his trial). He then set fire to T.B.’s winter jacket with a lighter, exited the basement and went home. He later stated that he had heard T.B. moaning and had thought that T.B. had extinguished the flames and might have started looking for the applicant to retaliate. 7.     The smoke coming out of the basement alerted the block’s inhabitants, who called the fire brigade but who managed to put out the fire before the arrival of the firefighters. Paramedics were also called to the scene and determined that T.B. had died. 8.     T.B. sustained severe burns to sixty per cent of his body and upper respiratory ducts. The autopsy revealed that he had 3.79 per mille of alcohol in his blood. 9 .     At 11.20 p.m. the applicant was arrested by two police officers, who took him to the police station. A breathalyser test performed at 11.39   p.m. showed that he had approximately 0.65 mg/l of alcohol (1.3 per mille) in his system. The applicant submitted that shortly after midnight on 27 January 2016 he had been questioned by police officers. He did not remember what he had said or signed, or whether he had been informed of his rights at that time. The domestic courts later established that the applicant had not been questioned immediately after his arrest (see paragraph 20 below). 10 .     According to the Government, on 27 January 2016 at 12.20 a.m. the applicant’s arrest record ( protokół zatrzymania ) was drawn up and served on him; at the same time he was informed (by means of another document) of the rights of an arrestee in criminal proceedings ( pouczenie o uprawnieniach zatrzymanego w postępowaniu karnym ), including on the right not to give “statements” ( oświadczenia ) and the right to contact a lawyer. A copy of neither document has been provided by the Government, and their exact content is unknown. 11 .     At 10.55 a.m. on the same day the applicant was informally questioned ( rozpytanie ) by three police officers (P.R., J.P. and A.M.). It appears that the level of his intoxication was not checked beforehand. No record of the questioning ( protokół przesłuchania ) was drawn up, but P.R. made an official note ( notatka urzędowa ), summarising what the applicant had said. The applicant submitted that he had not been informed of his right “not to give explanations” ( do odmowy składania wyjaśnień ) or his right to have a lawyer present during his questioning. This informal questioning lasted until 1.40 p.m. – that is, for almost three hours. According to the official note prepared by P.R. the applicant stated that he had been in conflict with T.B. due to the fact that T.B. had owed him money. He confirmed that he had set T.B. on fire and could not explain why he had done that. According to the official note, the applicant further said that he had wanted to see if he was capable of such an act. The official note was signed only by P.R. and was added to the case file. 12 .     Later that day, at 2.40 p.m., P.R. was formally questioned as a witness by the Zamość District Prosecutor ( Prokurator Rejonowy ) and testified that the applicant had voluntarily spoken to the officers, had not been subjected to any form of coercion and that such informal questioning was a routine activity in cases of that type. 13 .     According to an official note drafted by a different police officer and supplied by the Government, the applicant was able to consult a lawyer (appointed by his father) on 27 January 2016 between 2.55 p.m. and 3.05 p.m. A police officer was present when the consultation took place. 14 .     On 28 January 2016 at 12.31 p.m. the applicant was brought before the Zamość District Prosecutor and charged with the murder of T.B. with particular cruelty. He was informed of his rights and of the fact that his defence lawyer ( obrońca ) had failed to arrive on time. Having consented to being questioned as a suspect without the presence of his defence lawyer, the applicant began the interview by pleading guilty to the charge “in its entirety”. He stated that T.B. had owed him money, which he had tried to recover by searching T.B.’s pockets. He could not explain why he had set T.B. on fire, but stated that as he had been leaving the basement, the flames had reached ten to fifteen centimetres high and T.B. had been moaning. The applicant could not explain why he had left the basement. 15 .     At 12.40 p.m. the applicant’s defence lawyer entered the room and the questioning was halted for nine minutes, during which time the applicant consulted his defence lawyer. Following its resumption, the prosecutor read out the explanations given by the applicant thus far. The applicant stated that he wished to rectify what he had said and stated that he had not intended to kill T.B. and did not know why he had set him on fire. He also stated that he had not started the fire because of the fact that T.B. owed money to the applicant. He then refused to give any further explanations. 16 .     The next day the Zamość District Court ( Sąd Rejonowy ) detained the applicant on remand. During the hearing, the applicant retracted his explanations and stated that he had become afraid of the officers who had questioned him and so had continued to present the same version of events before the prosecutor. 17 .     During the subsequent investigation the applicant pleaded “not guilty” and refused to give any explanations. The prosecution collected other evidence – namely, witness statements, the investigators’ findings, the physical evidence collected at the scene of the crime and the results of the medical and psychiatric assessments (including of the applicant). The applicant’s criminal trial 18 .     During the trial the applicant admitted to having set T.B. on fire but explained that he had never intended to kill him. He explained that in August 2015 he had “pranked” T.B. in a similar manner (by setting fire to a piece of his clothing) but that T.B. had allegedly held no grudge against him. The applicant further stated that he had told the officers about the debt T.B. owed him because he thought it would make him look better. He asserted that he had had good relations with the victim. 19 .     At a hearing of 19 September 2016, a police officer (J.P.) who had informally questioned the applicant on 27 January 2016 (see paragraph   11 above) testified as a witness. He stated that the informal questioning had taken the form of a conversation during which the applicant had freely and in detail described the incident in question. J.P. testified that since the questioning had been informal, the applicant had not been given any documents to sign. P.R. had also been questioned on that day, shown the contents of the official note of his questioning and confirmed the accuracy of what was written therein (ibid.). A.M. stated that he did not remember whether the applicant had been asked questions or whether he had spoken in a manner that had been “spontaneous”. 20 .     On 27 March 2017 the Zamość Regional Court ( Sąd Okręgowy ) convicted the applicant of murder committed with particular cruelty and sentenced him to twenty-five years’ imprisonment. It explained that there was no evidence to prove that the applicant had been questioned immediately after his arrest, while he had been intoxicated. It noted the fact that he had been informally questioned for almost three hours on the morning after the incident (see paragraph 11 above). In the judgment’s written reasoning the court explicitly deemed the initial explanations given by the applicant to be particularly credible, since the applicant had had no chance to think about his line of defence at that time and thus must have been honest. The court also found that the applicant had killed T.B. because the latter had failed to pay his debt, which had also been the motive of the applicant’s action in August 2015 (see paragraph 18 above). The court deemed the financial motive of his crime to be an aggravating factor. The court held that the applicant had been hostile towards T.B. and had intentionally killed him in such a manner as to inflict a maximum level of suffering. Those findings were based on what the applicant had said during his informal questioning, carried out by P.R., J.P. and A.M., to which the court explicitly referred. 21 .     The applicant’s defence lawyer appealed against the judgment of 27   March 2017. He argued, in particular, that the Regional Court had breached Article 174 of the Code of Criminal Procedure ( kodeks postępowania karnego ) by reaching factual findings that had been based on the testimony ( zeznania ) of police officers who had informally questioned the applicant after the incident. He also argued that the court had breached Article   7 of that Code by refusing to consider the applicant’s explanations credible, in so far as they contradicted the testimony of the police officers. He submitted that the applicant should have been convicted of causing grievous bodily harm leading to death (Article 156 § 3 of the Criminal Code ( kodeks karny )), which at the time of its commission had carried a penalty of up to twelve years’ imprisonment. The lawyer argued that the applicant had not intended to kill T.B. and that the evidence suggested that, at most, he should have realised that he could cause severe injuries by setting T.B.’s clothing on fire. 22.     On 16 August 2017 the Lublin Court of Appeal ( Sąd Apelacyjny ) upheld the first-instance judgment. The court held, referring to the jurisprudence of the Supreme Court ( Sąd Najwyższy – see paragraphs   35-36 below), that there was no prohibition on interrogating a police officer about what an accused had said during informal questioning. It further held that had the applicant been formally questioned and his explanations been replaced by the testimony of an interrogating police officer, it would have rendered the latter testimony inadmissible. No such exclusionary rule applied to testimony given by police officers who had engaged in activities at the scene of the crime and who might recall words spontaneously uttered by a person subjected to so ‑ called “informal questioning”, even if such a person were later to be charged with a crime. 23 .     On 23 May 2019 the Supreme Court dismissed a cassation appeal lodged by the applicant as manifestly ill-founded. No reasoning was provided. The decision was served on the applicant on 25   June 2019. RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law AND PRACTICE Domestic law Constitution of Poland 24.     The relevant provision of the Polish Constitution reads as follows: Article 42 “... 2.     Anyone against whom criminal proceedings have been brought shall have the right of defence at all stages of such proceedings. He may, in particular, choose a defence lawyer ( obrońca ) or avail himself - in accordance with principles specified by statute - of a defence lawyer appointed by a court. 3.     Everyone shall be presumed innocent of a charge until his guilt is determined by the final judgment of a court.” Code of Criminal Procedure 25 .     The relevant provisions of the Code of Criminal Procedure (“CCP”), as in force at the relevant time, provided as follows: Article 6 “The accused shall have the right of defence, including the right to be assisted by a defence lawyer, of which he shall be informed.” Article 7 “Bodies conducting the proceedings form their conviction on the basis of all the evidence examined, evaluated freely taking into account the principles of sound reasoning and the indications of knowledge and life experience.” Article 16 “§   1.     If the authority conducting the proceedings is under an obligation to advise the parties of their rights and duties, and fails to do so or does not instruct them properly, this shall not result in any adverse consequences during the course of the trial to the participant of the proceedings or other persons concerned. §   2.     In addition, the authority conducting the proceedings shall, if necessary, inform the parties to the proceedings of their rights and duties, even in cases when this is not explicitly stipulated by law. If the authority fails to provide such advice, and in light of the circumstances this was deemed indispensable, or if the authority does not instruct properly the parties, the provisions of § 1 shall be applied accordingly.” Article 71 “§   1.     A person on whom a decision on the presentation of charges has been issued, or who, without such a decision having been issued, is charged in connection with being questioned as a suspect, shall be considered a suspect ( podejrzany ). §   2.     A person against whom a bill of indictment has been brought before a court, as well as a person in respect of whom a public prosecutor has submitted a motion referred to in Article 335 § 1 or a motion for conditional discontinuance of proceedings, shall be deemed to be an accused ( oskarżony ). §   3.     Where this Code uses the term "accused" in a general sense, the relevant provisions shall also apply to a suspect.” Article 78 “§   1.     A suspect who does not have a defence lawyer of choice may request that a defence lawyer be appointed for him if he duly demonstrates that he is unable to bear the costs of his defence without prejudice to the necessary support of himself and his family.” Article 80 “The accused must have a defence lawyer in the proceedings before a regional court if he is charged with a felony ( zbrodnia ). In this case, the participation of the defence lawyer in the main hearing is mandatory.” Article 143 “§   1.     Record shall be taken of: ... 2)     questioning of the accused, witness, expert and probation officer; ... §   2.     A record is taken of other actions if a specific provision requires it or if the person carrying out the action deems it necessary. In other cases, it may be limited to drawing up an official note.” Article 148 “§   1.     The record should include: 1)     designation of the activity, its time and place as well as names of persons participating in it; 2)     the course of the activity as well as the statements and motions of its participants; 3)     decisions and orders issued in the course of the activity, and if a decision or order was drawn up separately, a note of its issue; 4)     if necessary, a statement on other circumstances concerning the course of the activity. §   2.     Explanations, testimony, statements and conclusions as well as statements of specified circumstances by the authority conducting the proceedings shall be included in the record as accurately as possible. Persons participating in the activity have the right to demand that everything that concerns their rights or interests is recorded in the record with full accuracy. §   3.     The record of the content of testimony or explanations in the record shall not be replaced by reference to other records. §   4.     Persons participating in the proceedings have the right to demand that excerpts of their statements included in the record be read out.” Article 150 “§   1.     With the exception of the record of a hearing or session, the record shall be signed by the persons taking part in the activity. Before signing, the record shall be read out and a note shall be made to that effect. §   2.     A person participating in the activity may, when signing the record, at the same time raise objections as to its content; such objections should be included in the record along with a statement from the person taking the recorded activity.” 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 has the right to give explanations; however, he may, without giving reasons, refuse to answer individual questions or refuse to give explanations. He shall be advised of this right. §   2.     The accused who is present at the taking of evidence shall have the right to give explanations on any evidence.” Article 244 “... §   2.     An arrested person should immediately be informed of the reasons for the arrest and of his rights, including the right to have the assistance of an advocate ( adwokat ) or attorney-at-law ( radca prawny ), to have the free assistance of an interpreter if he does not speak Polish sufficiently, to make a statement and to refuse to make a statement, to receive a copy of the record of the arrest, to have access to first aid medical treatment and of the rights set forth in Article 245, Article 246 § 1 and Article 612 § 2 as well as the provisions of Article 248 §§ 1 and 2, and should be heard. §   3.     A record of the arrest shall be drawn up, in which the name, surname and function of the person carrying out this act, the name and surname of the arrested person and, if his or her identity cannot be established, his or her description, as well as the day, time, place and reason for the arrest, stating what offence he or she is suspected of having committed, shall be stated. The statements made by the arrested person should also be included in the record and the information about his or her rights should be noted. A copy of the record shall be delivered to the arrested person. §   4.     Immediately upon the apprehension of a suspect, the necessary data shall be collected, and the public prosecutor shall be notified of the apprehension. If there are grounds referred to in Article 258 §§ 1-3, a request shall be made to the public prosecutor to submit a motion to a court for detention on remand.” Article 245 “An arrested person shall, upon request, be promptly allowed to make contact with a defence lawyer in an accessible form and to speak with them directly; in exceptional cases justified by particular circumstances, the arresting person may stipulate that he or she shall be present.” Article 300 “§   1.     Prior to the first interrogation, the suspect should be instructed of his rights: to give explanations, to refuse to give explanations or to refuse to answer questions, to be informed about the content of the charges and any changes thereto, to submit a motion to carry out investigative activities, to be assisted by a defence lawyer, including the right to apply for appointment of a defence lawyer in the case specified in Article 78 and about the content of Article 338b, to be finally familiarised with the materials of the preparatory proceedings, as well as with the rights set forth in Articles 23a § 1, 72   §   1, 156 §§ 5 and 5a, 301, 335, 338a and 387 and with the obligations and consequences set forth in Articles 74, 75, 133 § 2, 138 and 139. The instructions shall be delivered to the suspect in writing; the suspect shall confirm the receipt of the instructions by signing them.” Article 301 “The suspect shall be heard, upon request, with the participation of the defence lawyer appointed. Failure of the defence lawyer to appear shall not prevent questioning.” Article 393 “§   1.     Protocols of inspection, search and seizure of property, opinions of experts, institutes, establishments or institutions, criminal record data, results of the community interview and any official documents filed in preparatory or judicial proceedings or other proceedings provided for by law may be read out at the hearing. However, it is not permissible to read out notes on activities for which drafting of a record is required.” Article 540 “§   3.     The proceedings shall be reopened for the benefit of the accused when such a need results from a decision ( rozstrzygnięcie ) of an international body acting on the basis of an international agreement ratified by the Republic of Poland.” Criminal Code 26.     The relevant provisions of the Criminal Code, as in force at the time, provided: Article 148 “§   1.     Whoever kills a human being, shall be subject to the penalty of deprivation of liberty for a term not shorter than 8 years, the penalty of 25 years’ imprisonment or the penalty of life imprisonment. §   2.     Whoever kills a human being: 1)     with particular cruelty, 2)     in connection with taking a hostage, rape or robbery, 3)     as a result of motivation deserving particular condemnation, 4)     with the use of explosives, shall be subject to the penalty of deprivation of liberty for a term not shorter than 12   years, the penalty of 25 years’ imprisonment or the penalty of life imprisonment.” Article 156 “§   1.     Whoever causes grievous bodily harm in the form of: 1)     depriving a person of sight, hearing, speech, ability to procreate, 2)     other serious disability, serious incurable or long-term illness, life-threatening disease, permanent mental illness, total or significant permanent disability to work in an occupation or permanent, significant mutilation or disfigurement of the body, shall be subject to the penalty of deprivation of liberty for a term of between 1 and 10 years. §   2.     If the perpetrator acts unintentionally, shall be subject to the penalty of the deprivation of liberty for up to 3 years. §   3.     If the consequence of the act specified in § 1 is the death of a human being, the perpetrator shall be subject to the penalty of the deprivation of liberty for a term of between 2 and 12 years.” Ordinance of the Minister of Justice on the manner of ensuring to an accused the assistance of a defence lawyer appointed proprio motu 27 .     The Ordinance of the Minister of Justice of 27 May 2015 on the manner of ensuring to an accused the assistance of a defence lawyer appointed proprio motu ( Rozporządzenie Ministra Sprawiedliwości z dnia 27   maja 2015r. w sprawie sposobu zapewnienia oskarżonemu korzystania z pomocy obrońcy z urzędu , “the Ordinance”) provided as follows: Paragraph 11 “(1).     A request for the appointment of a defence lawyer submitted by a suspect shall be promptly forwarded by the investigating authority to the court having jurisdiction over the case, together with documents submitted by the suspect to show that he is unable to bear the costs of defence without prejudice to the necessary support of himself and his family. (2).     When transmitting to the court having jurisdiction over the case the motion and the documents referred to in section 1, the investigating authority shall enclose the case file or copies from the case file necessary for the examination of the motion for the appointment of a defence lawyer, in particular enabling the determination of the case reference number, personal data of the suspect and data concerning his family and financial situation. (3).     If the circumstances indicate the necessity for immediate defence, the investigating authority shall: 1)     transmit the request and the documents referred to in section 1, together with the copies from the case file referred to in section 2, to the court competent to hear the case by fax immediately after the request for the appointment of a defence lawyer is submitted; 2)     notify, in the manner indicated in Article 137 of the CCP, the court competent to perform in preparatory proceedings the action requiring immediate commencement of defence on submission by the suspect of a motion for appointment of a defence lawyer and on transmission of the motion to the court competent to hear the case, and shall indicate the date of these actions and the name of the court.” Paragraph 13 “If a suspect who has submitted an application for the appointment of a defence lawyer has not duly demonstrated that he is unable to bear the costs of defence without jeopardising the necessary livelihood of himself and his family, the President of the court or a referendary shall promptly set an appropriate time limit for him to supplement the application.” Domestic practice Execution of the Court’s judgment in Płonka v. Poland (no. 20310/02) 28.     On 31 March 2009 the Court delivered its judgment in the case of Płonka v. Poland (no. 20310/02, 31 March 2009) and held that there has been a violation of Article 6 § 1 of the Convention in conjunction with Article   6 §   3   (c) owing to the applicant’s lack of access to a lawyer during her questioning by the police. That judgment became final on 30 June 2009. 29.     On 3 November 2015 the Polish Government submitted an action report to the Committee of Ministers concerning the execution of that judgment. With respect to the general measures taken, the Government explained that Articles 300 and 301 of the CCP have been significantly amended, in order to ensure that suspects obtain comprehensive and easily accessible instructions on their rights. Furthermore, referring to the Ordinance, the Government indicated that details of the procedure for appointment of a defence lawyer proprio motu had been set out therein. 30.     In its resolution CM/ResDH(2015)235, adopted on 9 December 2015 the Committee of Ministers satisfied itself that all the measures required under Article 46 § 1 of the Convention have been adopted, declared that the respondent State had exercised its functions under Article 46 § 2 of the Convention and closed the examination of the case. The [Polish] Commissioner for Human Rights 31 .     On 18 April 2017 [1] and 27 September 2018 [2] the [Polish] Commissioner for Human Rights ( Rzecznik Praw Obywatelskich ) requested the Minister of Justice to consider making a proposal of legislative amendments in order to ensure more effective access to a lawyer after one’s arrest and thus minimise the risk of ill-treatment in police custody. He indicated that the guarantees in force at that time were illusory and in light of lack of other procedural safeguards (such as video recording of the questioning) increased the risk of torture and inhuman treatment. In this regard, the Commissioner referred to several pending or concluded criminal proceedings in which police officers were charged with abusing suspects during the informal questioning. 32.     The Commissioner also contested the effectiveness of transposition of the Directive 2013/48/EU (see paragraph 40 below) into the Polish legal order and expressed his concern over the ineffectiveness of protection offered by the CCP provisions in force at that time. 33 .     On 25 October 2021 [3] the Minister of Justice replied that it would be unfeasible to provide every arrestee with access to a lawyer and, considering the time required for appointment of a lawyer, it would inevitably lead to extension of duration of an arrest. In the Minister’s view such a solution would prevent police from being able to talk to the arrestee and/or perform procedural activities with his or her participation. The Minister concluded that the law in force had offered sufficient procedural guarantees to arrestees in early stages of the proceedings and refused to consider introducing a proposal of legislative amendments. Case-law of the Constitutional Court 34.     The Constitutional Court in its judgment of 11 December 2012 (case no. K 37/11) held that: “The rights of the defence thus apply to everyone from the moment that criminal proceedings are instituted against them. The [Constitutional] Court emphasised that "in practice" that moment is the moment of bringing charges, i.e. the moment when there is already a justified suspicion that an offence has been committed. The [Constitutional] Court, taking into account the jurisprudence of the Supreme Court, assumes that the right to defence referred to in Article 42(2) of the Constitution also refers to that phase of proceedings which precedes the formal bringing of charges against a person. The [Constitutional] Court shares the view of the Supreme Court that "it is not the formal raising of a charge of committing an offence, but already the first action of the procedural authorities aimed at prosecuting a given person that makes that person a subject of the right to defence”. Case-law of the Supreme Court 35 .     In its ruling of 1 September 2003 (case no. V KK 12/03) the Supreme Court held: “It follows from the wording of Article 186(1) of the Code of Criminal Procedure that the prohibition covers only the content of "previously given testimony" and the possibility to make factual findings on its basis. However, this provision does not prohibit the reproduction of statements of a person entitled to refuse to testify made outside the record of examination as a witness - e.g. during arrest by a police officer in the form of a spontaneous statement.” 36 .     On 4 May 2016 the Supreme Court delivered a ruling (case no.   III   KK   334/15) concerning the character and use of official notes. It held the following: “There is no doubt that in the light of Article 174 of the CCP, an official note prepared during an informal questioning cannot replace evidence from explanations of the accused or testimony of a witness. Neither can findings of fact contradictory to the accused’s explanations or to testimony of a witness be made on the basis of the contents of an official note, as this would amount to substituting the contents of the note for this type of evidence. On the other hand, there is no prohibition of questioning as a witness the police officer who conducted the informal questioning and drew up the official note. Substitution of explanations of the accused or testimony of a witness would take place in the case of questioning of an officer who conducts a formal interrogation about the content of explanations or testimony given during such an interrogation. Conversely, officers’ reports on the course of their activities at the scene of the crime, which include spontaneous statements of the person subjected to the so-called informal questioning, do not have such character.” 37.     In a ruling of 10 September 2020 (case no. IV KK 150/19) the Supreme Court held: “The reconstruction (in any form, i.e. either through questioning of officers as witnesses or through disclosure of documents containing statements of the later accused) of statements made to police officers prior to questioning a person as a suspect or pursuant to the procedure provided for in Article 308 § 2, last sentence, of the CCP would be possible only if they had contact with the later suspect in connection with extra-procedural official activities and the information was provided to them in a spontaneous manner. Then, however, if the information about the alleged act was obtained at the inspiration of police officers and for the purpose of possible criminal proceedings, the use of statements of a later suspect recorded in a form other than the record of the interrogation constitutes a circumvention of Article 174 of the CCP.” 38 .     On 21 March 2021 the Supreme Court delivered a ruling (case no. IV KK 683/19) concerning the use of information acquired during an informal questioning. It held the following: “The conduct of the so-called informal questioning may be recorded in the form of an official note (Article 143 § 2 of the CCP). The conduct of such an interview may not, however, replace the evidence from the accused’s explanations and from witness testimony (Article 174 of the CCP). The act of informally questioning a person, who in the future may become a suspect, does not violate Article 74 § 1 of the CCP, as there is no legal obligation for this person to provide, in response to questions from law enforcement officers, information concerning circumstances connected with the act to which the questioning relates. The act of informal questioning does not violate Article   175 § 1 of the CCP either, since the right to remain silent provided for therein is vested in a person who has been charged with a crime. However, another issue ... is the possibility of subsequent evidential use of information obtained in the course of such informal questioning. In view of the wording of Article 174 of the CCP, there is no doubt that an official note prepared during an informal questioning cannot replace evidence from an accused’s explanations or testimony of witnesses. Therefore, it is not subject to disclosure during the trial (Article 393 § 1, second sentence of the CCP). On the basis of the content of the official note it is also not allowed to make factual findings contradictory to the explanations of the accused or testimony of a witness, as this would be substitution of this evidence with the content of the note. On the other hand, there are no normative obstacles to questioning a police officer, who drew up the note, as a witness and to use his testimony as evidence alongside the explanations of the accused or the testimony of a witness to confirm and supplement the original testimony or explanation, provided that it does not contradict this evidence.” First President of the Supreme Court 39 .     In her 2017 report entitled “Comments on Detected Irregularities and Loopholes in Law” ( Uwagi o stwierdzonych nieprawidłowościach i lukach w prawie ), the First President of the Supreme Court ( Pierwszy Prezes Sądu Najwyższego ) stated: “Reservations are raised by the lack of precise regulation of the possibility for a suspect to consult a lawyer before the first interrogation within the institution of presenting charges. It seems that the obligation resulting from Article 313 § 1 of the Code of Criminal Procedure, of the procedural authority to question the suspect without delay after the announcement of the decision on the presentation of charges, combined with the absence of a provision that the suspect must be allowed to consult with his defence lawyer prior to questioning, appears to infringe the right to access to a lawyer ‘before questioning’, which is precisely defined in Article 3(2)(a) of the Directive [2013/48/EU]. The provision of Article 301 of the Code of Criminal Procedure does provide for the right of the suspect to be questioned with the participation of a defence lawyer, but only of such already “appointed” in the case. Nor does it refer to the suspect being able to consult with his defence lawyer prior to questioning... Irrespective of the requirements of the Directive, the doctrine has long drawn attention to the incorrect regulation in Article 301 of the Code of Criminal Procedure of the issue of access to a lawyer in connection with the first interrogation.” Relevant international law material The European Union 40 .     Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (the “Directive”), where relevant, reads: Article 3 “1.     Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively. 2.     Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest: a)     before they are questioned by the police or by another law enforcement or judicial authority; b)     upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph   3; c)     without undue delay after deprivation of liberty; d)     where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court. 3.     The right of access to a lawyer shall entail the following: a)     Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority; b)     Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned; ... 4.     Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons. Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to effectively exercise their right of access to a lawyer, unless they have waived that right in accordance with Article 9. ... 6.     In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights provided for in paragraph 3 to the extent justified in the light of the particular circumstances of the case, on the basis of one of the following compelling reasons: a)     where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings...” THE LAW Preliminary remark 41.     The Government informed the Court, by a letter of 28 September 2021, that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applicant. They requested the Court to s