The legislative powers of the police to stop individuals
An identity check is not perceived as a stop in Poland, although it involves deprivation of liberty for the moments identity is being checked. The police have broad powers to check identity – the statute simply provides that the police has such a power.
In Polish law, there is no distinction between stop and arrest. The term used is zatrzymanie. According to the Code of Criminal Procedure 1997 (CCP), a person may be arrested if they are suspected of offences and might abscond or if the act involves violence or firearms/weapons. Other provisions regulating Police powers to arrest (not for purpose of criminal proceedings) specify cases where someone has not returned to custody on a specified date, is a threat to the health of themselves or others or to property, or is drunk and either causing offence or posing a risk.
General powers to search a person are regulated broadly both in the CCP (Article 219-236) and in the Police Act (Article 15 para. 1 (4) and (5)). There is no direct provision that gives the police a power to search a person following an arrest. A search can be performed for the purposes of criminal proceedings (finding pieces of evidence) or for other purposes (e.g. preventive). The first one is regulated in CCP and is called przeszukanie and is conducted to find items that might constitute evidence in a case. Such searches can be conducted with a warrant issued by a prosecutor or without on the orders of a senior officer. However, the police must apply to the prosecutor for a decision that the search was legal.
The other types of search are regulated in the Police Act. These are:
Personal control (kontrola osobista) – search of a person (may involve stripping and body cavity search, if necessary) and personal belongings where there is a reasonable suspicion that a criminal offence has been committed and in order to find weapons, illegal items or evidence.
Checking of luggage and cargo in harbours, stations or on public transport (land, air and sea) where there is reasonable suspicion that a criminal offence has been committed and in order to find weapons, illegal items or evidence,
Preventive check (manually, by technical means of finding dangerous material and objects or those which possession is prohibited, biochemically or with the use of police dog) to prevent terrorism at designated places and events as well as public transport, or to seize items that might threaten the health of someone conducting an arrest.
The obligation to register stops
A search leading to the discovery of items is documented in the form of a report, stating the given name, surname and the role of the arresting officer, and the given name and surname of the detained person (if impossible his or her description), the time and location, legal reason for the search and the items found. If nothing is found, a note is enough.
In the case of arrests, a similar report should be made, specifying the grounds for the arrest. Any statements made by the arrestee must be included in the report. It should also indicate that the detained person has been informed about his or her rights. The report has to be signed by the detained person and copy of the report is given to him (Article 244 § 3 CCP). Also, any search must be documented in the report (Article 229 CCP).
Numerous legal acts and decisions regulate what kind of information can be recorded on databases and in what way. The most important is the Decision No. 165 of the Chief Police Officer of Poland (Komendant Główny Policji) of the 25 July 2017 on the functioning of the National System of Police Information (Krajowy System Informacji Policji) [KSIP Decision]. In the KSIP all arrests must be registered including, among others, information regarding who arrested a person and who registers the arrest in a database, how the identity of a person was determined, date and hour of arrest, who issued warrant of arrest or decided on the arrest, legal basis, grounds and place of arrest, place when a person was detained, data and hour of release (§ 20 para. 2 of the KSIP Decision).
Legislation procedures which protect citizens from police offences
The rights of an arrested individual are guaranteed by the mechanism of a judicial review. Every arrestee has the right to lodge an interlocutory appeal with the court to request an examination of the grounds of the legitimacy, legality and correctness of his/her arrest (Article 246 § 1 CCP). A person who has been unlawfully detained for the purposes of criminal proceedings is entitled to seek compensation and redress from the State Treasury (in criminal proceedings). A regional court rules on the motion for compensation or redress on the basis of CCP provisions.
The rights of an individual in the case of search are also guaranteed by the mechanism of a judicial review regardless whether search has been conducted based on the prosecutor’s warrant of search or by the police without a warrant (Article 236 CCP). A person who has been unlawfully searched is also entitled on the basis of Civil Code provisions to seek compensation and redress from the State Treasury (in civil proceedings) if he or she can prove that he or she suffered damages or harm as a result of the search.
Annotated bibliography on Poland
Podcast Vos papiers s’il vous plait! – Police stop & search in Poland
Blog Understanding the Practice of Police Stops in Europe – The Stops on the Polish Independence Day