Bezpośredni skutek „dyrektywy obrończej” w polskim procesie karnym

• Main Author: Kacper Oleksy
• Format: Article
• Language: English
• Published: University of Silesia Press 2019-12-01
• Series: Problemy Prawa Karnego
• Subjects: eu law; direct effect; access to lawyer; directive 2013/48/eu; criminal proceedings; right to defence; due process
• Online Access: https://journals.us.edu.pl/index.php/ppk/article/view/11878
• ISSN: 0208-5577; 2353-9712

As of 27 November 2017 the deadline passed by which the European Union Directive 2013/48/EU on the right of access to a lawyer should have been implemented by the Member States in their respective legal systems. Poland completed the said responsibility only ostensibly, for no legal norms which regulate the standard of the right to formal defence contained in Polish Code of Criminal Procedure have been amended. This very situation makes it necessary to consider whether the norms of the directive in question may cause the so-called direct effect in Poland’s domestic legal system, particularly: whether prosecuted individuals may directly invoke the directive in order to, based on its content, seek the assistance of a lawyer in the course of criminal proceedings. Therefore, it stands to reason that, at least in relation to some of the competences envisioned in the directive, such eventuality exists, whereas in remainder of the cases the judicial bodies are obliged to interpret the respective norms of the Code of Criminal Procedure in pro-EU manner, thereby elevating the standard of right to formal defence present in Polish criminal proceedings. Nonetheless, the real transposition of this directive should be postulated, since invoking its direct effect cannot exempt a Member State from implementing it in accordance with EU treaties as a way to harmonize domestic legal systems.