PART III – DIFFICULTIES IN THE
IMPLEMENTATION OF THE NMPT
MANDATE
The directors of the prison in Barczewo, the remand prison in Warszawa-Białołęka and the
remand prison in Kraków informed that the conduct of the remote monitoring visits (video visits) by the
NMPT was dependent on the consent of the authorities responsible for detention of the persons to be
visited. In the opinion of the directors, according to the provisions of the Criminal Executive Code, a
person held in a remand prison may use a telephone only with the consent of the authority responsible
for the person’s detention, but may not use other means of wired or wireless communication.
A similar position was taken by the Warsaw Regional Director of the Prison Service. In his letter
of 28 May 2020 (ref. o. OI/S.4001.26.2020.AS), he pointed out that the Prison Service respects the rule
of law and acts on the basis and within the limits of the law. Article 217c(1)(2) of the Criminal Executive
Code explicitly provides that detainees may not use other means of wired or wireless communication,
apart from telephone communication as set out in Article 217c(1)(1) of the Criminal Executive Code.
For this reason, remand prisoners may not use the Skype communicator. In this connection, Deputy
Commissioner for Human Rights Hanna Machińska, Ph.D., wrote a letter to the Director General of the
Prison Service51. In his response, he shared the opinion of the other directors, emphasizing at the same
time that the regulations do not prevent the CHR from entering the facilities in order to exercise the
NMPT mandate. There is no consent to the use of the Skype communicator by remand prisoners, but
the representatives of the National Mechanism for the Prevention of Torture may meet in person with
the detainees within the premises of the remand prisons.
This reasoning is incorrect as it seems to disregard the provisions of the Optional Protocol to
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which
− according to Article 91(2) of the Polish Constitution, should prevail over domestic regulations in the
event of any discrepancy. According to the principle expressed in the Constitution, if the provisions of
the domestic regulations make the possibility of contacting a detainee dependent on the consent of the
responsible authority, and the international agreement ratified in the form of an act of Parliament
contains no reference to such consent, the provisions of the international agreement should be applied
directly.
The position of the NMPT on the matter was also supported by the deputy District Prosecutor
for Warszawa-Praga Południe District. In her response to the letter of the Director of the remand prison
51
KMP.571.9.2020, letter of 15 June 2020.
38
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents