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