Prevention of crime,tort and epidemy: The use of criminal procedure for preventive purposes in Poland during Covid-19

Introduction

Today, many legal systems allow for using criminal procedure and its measures for various purposes, sometimes unrelated to the main goal of the procedure – determining the question of the guilt of the accused. Preventing future crime and protecting victims are the most common examples. The trend to use criminal procedure for different more or less collateral goals seems to be extending. In the Covid-19 era, state authorities tried to use every possibility to limit the spread and the negative impact of the epidemy. One of the instruments is criminal procedure. It is worth observing how this instrument has been used in Poland, owing to recent legislative changes and practice. It is a good starting point for wider reflection on the changing role of criminal procedure and its preventive function.

Prevention of crime in the Polish criminal procedure

In the Polish legal system, using the measures of criminal procedure for preventive purposes has been formally allowed since 1995, when the possibility of using preventive measures ¹ for preventing crime was introduced into the previous Code of Criminal Procedure 1969. The regulation was also adopted in the new Code of Criminal Procedure 1997 (CCP). According to Article 249 § of the CCP, preventive measures may be used to ensure the correct course of proceedings and, exceptionally, to prevent the accused ² from committing a new serious offence. The term ‘serious offence’ is interpreted as crime with a maximum penalty of deprivation of liberty of at least 8 years (Stefanski, 2019: 585–586). Article 258 § 3 of the CCP provides that a preventive measure may also be applied exceptionally if a justified concern that the accused charged with a felony (i.e. a crime punishable with a penalty of at least 3 years of deprivation of liberty) or charged with an intentional misdemeanour will commit a serious offence against life, health or public safety, especially if he or she has threatened to do so.

Since the adoption of CCP, the number of preventive measures and other coercive measures used for preventive purposes have increased. This may be treated as sign of a global tendency (Carvalho, 2017: 1–16; Vervaele, 2009: 75–123; Zedner, 2009: 35–58) – a preventive turn in criminal justice. The most important measures are arrest, which was introduced for domestic violence cases, and an order to leave premises shared with the victim. The arrest of a person suspected of domestic violence by the police is possible when there is a risk of a new violent crime against the victim, especially if the suspected person threatens to commit such crime (Article 244 § 1a of the CCP). Arrest is mandatory if the alleged crime was committed using a firearm, a knife or other dangerous object (Article 244 § 1b of the CCP). Such arrest may last up to 48 hours; afterwards, the arrested person must be released or transferred to a court with the motion of the public prosecutor for provisional detention. The order to leave premises shared with the victim (Article 275a of the CCP) makes possible the separation of the suspect and the victim and therefore decreases, by situational prevention, the possibility of committing a new crime. The regulations concerning domestic violence were introduced as a fulfilment of the obligation under international law to prevent such kinds of violence and protect victims.

Notably, the instruments of criminal procedure sometimes overlap with instruments of police law, civil law and administrative law. Article 15a (1) of the Police Act 1990 provides for the arrest of a person suspected of domestic violence if there is a risk of a new crime, which is also the subject of the above-mentioned Article 244 § 1a and 1b of the CCP. From November 2020, the police are also empowered to order the person using family violence to leave the shared premises and not approach the victim for 14 days (Article 15aa–15ak of the Police Act 1990). The police powers are classified as the maintenance of public order, and they are used outside criminal proceedings. A victim of domestic violence may also file a motion in a civil court to order the person using domestic violence to leave the premises or not approach the premises (Articles 560²–560¹² of the 1964 Code of Civil Procedure). The same may be ordered by the public prosecutor or court during criminal proceedings. Besides, civil law provides for various injunctions in case legally protected goods are threatened by the action of a certain person (e.g. inviolability of home – Articles 23 and 24 of the Civil Code 1964), which may also be prohibited as coercive measures during criminal proceedings. Article 23 of the Mental Health Protection Act 1994 allows for the placement in a psychiatric hospital of a person who poses a risk to themselves or other persons. Also, administrative law provides various preventive measures, for example, for placement of drunk persons posing danger to themselves or other persons in a sobering-up house or hospital (Article 40 of the Upbringing in Sobriety and Alcoholism Prevention Act 1982), football banning order (Article 14 of the Safety of Mass Events Act 2009) or coercive hospitalisation of persons having or suspected of having an infectious disease (Article 35 of the Preventing and Combating Infections and Infectious Diseases among People Act 2008).

The wide availability of the above-presented non-criminal measures raises the question of whether the preventive regulations of criminal procedure are necessary at all. Of course, in some situations, they are indispensable, as alternatives are unavailable or partially adequate, for example, when a person without a mental disorder after commission of one murder threats to kill the key witness or person who reported the crime. However, in many situations, using alternatives is possible, as in the case of domestic violence. Therefore, the question arises: Why the use of criminal procedure instead of civil or administrative law instruments?

The answer to that question is not easy and perhaps not fully convincing. We may, though, find some arguments for such a possibility. First, if the person is involved in criminal proceedings as suspect or accused, criminal procedure is a convenient framework of prevention (Ashworth and Zedner, 2014: 147), especially if other coercive measures are applied (e.g. arrest). Second, preventive measures may be applied on different grounds, and the grounds may overlap (Kosonoga, 2008: 69), for example, when the suspects threaten to kill a witness, which means interfering with evidence (strictly procedural ground) and risk of commission of serious crime (preventive ground). The use of one legal instrument is more convenient for criminal process authorities (one decision, one court session for decision concerning appeal) and usually gives more guarantees to the person concerned, as criminal procedure is very formal and strict (Ashworth, 2006: 242). Third, criminal procedure allows for quick reaction, authorising the police and the public prosecution service to use most of the coercive measures immediately when the risk is identified, as is not the case, for example, when a civil court decides on the request to isolate a violent family member.

The main problem is, therefore, if the regulation and application of certain preventive measures in criminal procedure are necessary and proportional, knowing that they are not needed for determining the main issue of the criminal process and may negatively affect the determination, for example, by delaying the proceedings, prejudicing the case or impeding exercise of the defence rights of the suspect or accused (Duff et al., 2007: 192). The issue will be discussed based on the application of the Covid-19 legislation in Poland.

New preventive measures in Article 276a of the CCP

In 2020, in one of the pieces of the Covid-19 legislation, a new and controversial measure was introduced to the Polish criminal procedure. It might be described as a protection of profession, as it aims to protect medical professionals and persons acting on their request in the course of medical activities and to protect other persons harassed because of their profession. According to Article 276a of the CCP, for crimes committed against a member of medical personnel concerning his or her activities of medical care or against a person requested to help medical personnel regarding the activities, a court or public prosecutor may impose a ban on approaching the victim closer than a certain distance, a ban on contact with the victim or a ban on publication, also through information or telecommunication systems, of content interfering with legally protected goods of the victim. The same measures may be applied regarding accused of crime regulated in Article 190a of the Criminal Code 1997 (CC), criminalising stalking and identity theft, committed because of a certain profession of the victim.

In the proposal of the act, it was indicated that it is

‘an answer to numerous postulates of medical professionals to guarantee specific protection to workers in healthcare who are subject to verbal and physical attacks concerning their work. Particularly, attacks on medical rescuers working in ambulances were raised. In the pandemic period, the attacks have increased in the form of publication on Internet fora of the personal data of physicians with cautions about the necessity to avoid the persons. The proposed regulation will ensure the possibility of instant use of preventive measure analogous to preventive measures used in case of domestic violence.’ ³

The measure character is similar to measures of substantive criminal law and civil law and procedure. Therefore, only the necessity for urgent action regarding Covid-19 resulted in placing the measure in the CCP. It may take a long time before the final judgement is given by a criminal court, and civil courts are also not working speedily, and during the pandemic, their functioning was even slower and partially suspended. Conversely, a public prosecutor may immediately apply the above-mentioned preventive measure. The introduction of the new preventive measure was also motivated by some cases of harassment of members of the medical profession published in media, including a case widely discussed in Poland, when a professor of gynaecology, after his return from Switzerland, tested Covid-19 positive. After the information was publicised, he was a target of hate speech on the Internet and telephone threats for alleged irresponsible behaviour; therefore, he committed suicide. ⁴

In the subsequent legislative proposal to extend the regulation scope of Article 276a, it was underlined that the change proposed was also aimed at covering

‘situations in which the profession practised by the victim determines socially undesirable behaviours in the form of stalking him or close persons [. . .]. The main aim of the projected regulation is to protect the group of professions that are particularly exposed to different forms of criminal stalking. Such groups include, in particular, inter alia, teachers and other employees in the sector of schools and education, who are not seldom exposed to the repeated, not only verbal, aggression of the students. The regulation would also be applied in situations in which certain groups of professions are targets of attacks due to temporary and objective factors, such as, for example, the present pandemic. The groups include, inter alia, minors and their families or workers in social care institutions and hospices.’ ⁵

The measure is partly new. Bans on approaching or contacting the victim were previously regulated in the CCP as a form of police supervision, but a ban on publication of harmful content was not mentioned in the CCP. Such a ban may also be imposed with a requirement of financial guarantee. If the ban is not respected, the object of financial guarantee may be forfeited or demanded (Article 276a § 2 of the CCP).

The ban on publication of content harming the legally protected goods of the victim encompasses a ban on publication and other forms of providing the content through Internet portals, irrespective of whether they were created by the accused or another person (Article 276a § 3 of the CCP). The ban duration is determined by considering the need to ensure the proper conduct of criminal proceedings and to guarantee adequate protection to the victim or their close relatives (Article 276a § 4 of the CCP).

The ban on publication showed significant differences when compared with the other coercive measures in the CCP. Its preventive role is shown in the first plan. Also, the wording of the new regulation may suggest that the measure may be applied to prevent serious offences against life, health or public safety as required by Article 258 § 3 CCP, alongside – providing a separate ground – content offences, which are significantly less severely punished, acts which are regulatory offences (e.g. publishing obscene content in public places) or even torts (infringement of personality rights of the person concerned). The basic question is, therefore, if the ban may encompass every illegal content or only criminal content. ⁶ As was mentioned, the wording of Article 276a of the CCP may suggest the first option. Some authors consider this view (Koper, 2020: 773). This means that the ban encompasses defamation, insult and other illegal content infringing personality rights of the victim, no matter whether it is criminal or not.

Such wide application of coercive measures in criminal procedure must be criticised. It is hard to argue that a ban on publishing content may be ordered to ensure the proper conduct of criminal proceedings. The situations in which the publication of such content may negatively affect the victim’s testimony will be rare and difficult to prove. Therefore, the main role of the measure is to prevent the infringement of the victim’s personality rights. This raises three objections. First, if the content is expected to be criminal, the coercive measure forbids criminal behaviour. This is improper from a legislative viewpoint, as the behaviour is already forbidden by criminal law (hate speech, criminal defamation, stalking). Measures of criminal procedure should not forbid this. They may only incapacitate or discourage the potential offender or make it more difficult to commit a crime. Second, as a ban on content publication may be secured by financial guarantee regarding breach, the forfeiture of the guarantee and parallel prosecution for the crime may raise the double punishment objections, being contrary to Article 4 of Protocol No. 7 to the European convention on human rights. Third, if the content would constitute a tort under civil law, as mentioned, there are measures regulated in the Civil Code and the Code of Civil Procedure to handle the problem. According to Article 24 § 1 of the Civil Code, the person whose personality rights are threatened by another person’s activity may demand the omission of that action unless it is legal. For an infringement, he may demand that the person who committed the infringement perform acts necessary to remove its effects and in particular to make a statement of an appropriate content and in an appropriate form. On the terms provided for in the code, he or she may also demand pecuniary compensation or an appropriate sum of money paid to a specified public purpose. Moreover, Article 755 § 2 of the Code of Civil Procedure provides that, in matters involving protection of personality rights, an injunction prohibiting an obligor from publishing may be granted if it does not prejudice public interest.

The above-mentioned regulations seem to be adequate and effective measures of protection for potential victims of torts. Therefore, the question must be posed as to whether criminal procedure should be an instrument used for preventing civil wrongs or only crime.

Before answering the question, we must first refer to the goals of criminal procedure. The traditional goal is to determine the question of criminal responsibility of the accused for the crime charged (Hirsch Ballin, 2012: 14). It is the main goal, but nowadays other goals are also recognised in criminal procedure, such as the compensation and protection of the victim. Prevention of crime is not in many legal systems a formally recognised goal of criminal procedure but could be a ground for application of some measures of criminal procedure. This is done because states have positive obligations to protect persons on their territory. ⁷ This encompasses several rights, such as the right to life or right to privacy. In some situations, the best fulfilment of the obligation to protect a right is using measures of criminal procedure. It is particularly important regarding the right to life. ⁸ This viewpoint is not non-controversial but generally could be accepted. However, the question is how far other rights should or could be protected by criminal procedure measures. In the jurisprudence of the European Court of Human Rights (ECtHR), hate crimes and stalking were recognised as raising the positive obligations of states under Article 3 or Article 8 of the ECHR ⁹ ; for non-physical contact through the Internet, Article 8 is, in most of the cases, applicable.

A ban on content publication for protecting the personality rights of a potential victim may undoubtedly interfere with the freedom of expression of the person subjected to the ban. Such interference generally may occur according to Article 10 (2) of the ECHR when it is necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for preventing disorder or crime and protecting health or morals, reputation or rights of others; for preventing the disclosure of information received in confidence; or for maintaining the authority and impartiality of the judiciary. The permissible restrictions are interpreted by the ECtHR strictly. ¹⁰ Considering banning orders, preventing disorder or crime and protecting the reputation or rights of others are the principal possible aims of restrictions. Therefore, it is not difficult to reveal the relevant legitimate aim of a banning order.

Afterwards, reference to the proportionality principle should follow. The principle sensu largo encompasses three issues: suitability, necessity and proportionality sensu stricto (Barak, 2012).

The banning order, similar to the other measures of criminal procedure, may be generally considered suitable instruments of protection, as they can help achieve the goals, that is, protection of the victim against violation of his or her rights, or prevention of illegal behaviour. This is particularly visible when the ban is connected with a financial guarantee or when the risk of forfeiture of the guarantee may discourage the accused from publishing harmful content.

However, there are doubts as to whether the requirement of necessity is fulfilled. The publishing of illegal content is prohibited by criminal and civil law. Concerning infringement, the perpetrator could be punished by the criminal court or obliged to pay damages by the civil court. As was mentioned, usually in legal systems, there are civil law instruments protecting against illegal acts, including the publication of illegal content. Besides, self-regulation mechanisms enable electronic services providers to block access to illegal content or remove the content from their servers (Commission of the European Communities, 1996: 14). If the instruments are effective, their duplication in criminal procedure is not necessary. Also, not every harmful or even illegal content requires the state’s preventive action. There must be a pressing social need for that. ¹¹ Considering the positive obligations of states under Article 8 of the Convention as justification for interference with freedom of expression guaranteed by Article 10, the Court underlines that ‘an attack on personal honour and reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to the personal enjoyment of the right to respect for private life’. ¹² As the Court indicated in one of the cases, ‘Although offensive and vulgar [. . .], the incriminated comments did not constitute clearly unlawful speech; and they certainly did not amount to hate speech or incitement to violence’. ¹³ As was also observed by the ECtHR regarding political speech and on debate of questions of public interest,

‘Where the views expressed do not comprise incitements to violence – in other words, unless they advocate recourse to violent actions or bloody revenge, justify the commission of terrorist offences in pursuit of their supporter’s goals or can be interpreted as likely to encourage violence by expressing deep-seated and irrational hatred towards identified persons – Contracting States must not restrict the right of the general public to be informed of them, even on the basis of the aims set out in Article 10 § 2.’ ¹⁴

Therefore, not all potential content offences or torts must be prevented by bans, prohibitions or injunctions. In some situations, the potential harm is not so significant, and prosecution and/or compensation is enough if the infringement was committed. In situations like this, the risk of breach of law could be acceptable (Dannecker, 2009: 77–78) and does not require taking preventive measures.

Certainly, a serious argument in the analysis of the necessity requirement could be an unusual situation created by the pandemic. The reactions of many persons and hostile attitudes in certain situations are excessive and unreasonable (as was shown in the example of the professor who was subjected to hate speech because he visited another country during the pandemic), which may call for extraordinary measures. However, such pressing social need may justify only the temporary introduction of special preventive measures during the pandemic, which was not done regarding the Polish legislation.

Looking at the proportionality sensu stricto, we shall balance the right to privacy and freedom of expression. The Court reveals that

‘in order to fulfil its positive obligation to safeguard one person’s rights under Article 8, the State may have to restrict to some extent the rights secured under Article 10 for another person. When examining the necessity of that restriction in a democratic society in the interests of the ‘protection of the reputation or rights of others’, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression as protected by Article 10 and, on the other, the right to respect for private life as enshrined in Article 8.’ ¹⁵

For criticising members of the medical profession, the Court underlines that such concerns could be in the public interest, if they are not motivated by personal bias or revenge. ¹⁶ Moreover, if a ban on content publication is imposed on a journalist, it may have a chilling effect. As was underlined by the ECtHR,

‘Although the Contracting States are permitted, or even obliged, by their positive obligations under Article 8 of the Convention to regulate the exercise of freedom of expression so as to ensure adequate protection by law of individuals’ reputation, they must not do so in a manner that unduly deters the media from fulfilling their ‘public watchdog’ role.’ ¹⁷

Therefore, such measures must be constructed in a very narrow mode.

It is also worthwhile to look at the Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users adopted 16 April 2014, ¹⁸ where, it was declared that

‘You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means:

1. you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. You should have due regard to the reputation or rights of others, including their right to privacy;

2. restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight.’

Returning to the initial question, it could be said that the application of coercive measures of criminal procedure for preventive purposes should generally be allowed only for potentially serious criminal offences (including content offences) where the potential harm appears to be considerable and irrecoverable, especially for vulnerable victims such as children. As was put by the ECtHR in K. U. v. Finland, ¹⁹

‘There are different ways of ensuring respect for private life and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is, in principle, within the State’s margin of appreciation, effective deterrence against grave acts, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions.’

The statement refers to substantive criminal law, but a similar remark might be made regarding procedural criminal law. It follows that the adequate ECHR aim of interference with the freedom of expression by measures of criminal procedure is prevention of crime, ²⁰ not much wider protection of the reputation or rights of others, unless using the measures for the latter is indispensable.

The same reasons induce the observation that application of criminal procedure measures to prevent non-criminal illegal content is, as a rule, not proportional, and if one or continuous publication of certain content would not fulfil elements of crimes, such as illegal threats, stalking, incitement to crime and hate speech, criminal preventive measures should not be used, especially if they have coercive character. If we treat criminal law provisions as an ultima ratio while regulating the conduct of individuals, the same might be said about the regulations of criminal procedure.

Using criminal procedure to prevent Covid-19

In March 2020, the coronavirus breakdown caused a global panic and fear. In Poland, many people were obliged to home quarantine both in case they were Covid-19 positive and in case they had contacts with such persons or had returned from abroad. However, some of the people recklessly neglected the obligation and left home for shopping, work or other activities. This caused serious problems, as the administrative instrument to ensure their isolation showed up to be not fully effective. The financial administrative penalties possible, although quite severe (up to 30,000 PLN – app. 7000 EUR), could in many cases discourage the persons concerned but not incapacitate them from spreading viruses. Besides, considering unemployed or homeless persons without financial means, the administrative penalties would be hard or impossible to enforce. Therefore, the police and public prosecution service adopted the policy of using criminal procedure measures to arrest persons breaching the obligations of quarantine and keep them in provisional detention, preventing further breaches of administrative regulations and spreading of the virus. To make it possible, the maximum prison penalty for causing direct danger of infection of contagious or life-threatening disease was speedily increased by the Parliament from 1 year to 5 years (Article 161 § 2 of the CC) and in a case where many persons were subjected to direct danger, up to 10 years (new Article 161 § 3 of the CC). Also, in Article 165 § 1 of the CC, causing danger to the life or health of many persons by effecting epidemiological threat or spreading contagious disease is penalised. This is punished by deprivation of liberty for up to 8 years. Article 165 § 3 of the CC also penalises the non-intentional act described in § 1, which is punished for up to 3 years of deprivation of liberty.

It is argued that an increase in criminal sanctions has a limited deterrent effect, as potential offenders are usually unaware of the sanctions, or the cost–benefit analysis led them to violation rather than compliance with the law (Robinson and Darley, 2004: 174). However, the changes may undoubtedly widen the incapacitative powers of criminal justice authorities. The increase in the penalty in Article 161 § 2 CC and introduction of § 3 of the Article allowed for bypassing the provision of Article 259 § 3 of the CCP, according to which provisional detention is not applied if the offence charged carries a penalty of imprisonment not exceeding 1 year (not applicable only in certain situations listed in § 4 of the Article). In practice, the prosecutor could charge the person with one of the above-mentioned crimes if at least one person was endangered and then argue for possible further risk of danger for many persons, so commission of the crime would be punished with 8 or 10 years of deprivation of liberty. This allows for ordering provisional detention and other coercive measures based on prevention of serious crime against life or health (Article 258 § 3 of the CCP). In one of the most controversial cases, a Covid-19-positive woman suffering depression twice violated an administrative order to stay at home and went to a pharmacy to buy drugs. She was stopped by the police and charged with causing danger to public safety (Article 165 § 1 of the CC). The police arrested her for 48 hours, and the court ordered provisional detention, which was then prolonged. As she was not able to pay bail, she spent 5 months in detention until the case became disputed in Poland, and the court lifted the provisional detention, leaving police supervision. ²¹ There were many other cases when provisional detention was ordered in similar situations. ²² The charges of causing danger to public safety were also presented to persons who were subjected to quarantine owing to contact with a person infected or for other reasons (e.g. return from abroad) and breached the rules of the quarantine but were not positively tested at the time, which is highly controversial, as the prevailing opinion is that the person should know at the moment the crime is committed that he or she is positive (Kubiak, 2020: 122). Hence, provisional detention was also applied in cases when the persons were positively tested for Covid-19 only while in arrest. One example is a man who returned from Germany and was therefore obliged by law to observe 14 days of quarantine. He was arrested while shopping, as he mentioned his quarantine to the shop seller, and then tested for Covid-19. When, despite the lack of any symptoms of virus, the test was positive, he was charged with causing epidemiological danger and sentenced for 1 year of deprivation of liberty suspended for 2 years. ²³ The reason for such practices was undoubtedly the pressure to stop spreading Covid-19, which led to the extensive application of criminal law.

It is subject to discussion whether the above-mentioned provisional detentions were ordered as a kind of punishment, deterrence to others or incapacitation of the person concerned. Provisional detention is applied before determining the guilt of the person, so it cannot be treated as a punishment for the crime charged. It should also not function as punishment for the behaviour of the suspect or accused during the proceedings.

Using provisional detention as an instrument of deterrence for other persons conflicts with the rationale of the preventive measure. Provisional detention should be an instrument of individual prevention, not general prevention. The second role may be played by penalties. Using provisional detention to deter people other than the suspect or accused would mean disregarding personal freedom and procedural guarantees, especially the strict interpretation of the grounds of provisional detention. Using pretrial detention as an instrument of incapacitation in case of the risk of commission of a new crime is nowadays generally accepted in legal systems. ²⁴ As it was mentioned, Polish criminal procedure lists prevention of new serious crime as a separate ground for detention. However, the issue is in which circumstances and for how long they might be applied. The requirement of crime against life, health or public safety punished with a penalty of at least 8 years is fulfilled in the above-mentioned charges of crime described in Article 161 § 3 or 165 § 1 of the CC. Nevertheless, the question is whether the charges are relevant and what level of risk justifies using preventive measures. The answer to the question is that the charges of causing danger to public safety are obviously not substantiated in cases where the person under quarantine is Covid-19 negative. In a case where the person in quarantine is, in fact, Covid-19 positive but unaware or unsure of the fact (e.g. the results of the test are not known yet and the person is asymptomatic), Article 161 is non-applicable, and regarding Article 165 § 3, only recklessness or negligence might be argued in some situations. However, non-intentional causing of danger is not a crime allowing for the use of provisional detention for preventive purposes in Poland, and the risk of new non-intentional crime is excluded as grounds for preventive measures.

Certainly, Covid-19 is a serious problem and a threat to the health of citizens; therefore, the lawmakers could be justified in adopting severe criminal law provisions, deterring the persons positively tested or on quarantine from breaching the regulations and orders binding them. However, it cannot be done at any price by adopting criminal law provisions that are excessive and do not conform to the principles governing criminal legislation. In particular, criminal law regulations are subject to the legality principle, which prohibits their vague formulation, extensive interpretation and application (Hallevy, 2010: 133–164). Moreover, application of provisional detention in Covid-19 cases is justified only in circumstances when the person causes serious risk or causes the risk repeatedly. The issues of disproportionate criminalisation and excessive use of law enforcement powers regarding pandemics were also observed in other countries. ²⁵ The next issue is the period of detention. If the measure is applied to prevent crime related to possession of the Covid-19 virus, the moment the person is tested as not having the virus anymore is the last moment pretrial detention is justified. However, it may also be an earlier moment if the risk is lowered for other reasons. Therefore, the above-mentioned 5 months of provisional detention was unreasonable.

It might also be underlined that placing persons who tested Covid-19 positive in jail may cause risk for the persons (not adequate treatment in a case of bad health condition) and for other persons detained in jail. This may raise the issue of infringing Article 2 or 3 of the ECHR. This is another factor requiring consideration, and if detention is not absolutely indispensable, the factor should prevail over the risk calling for detention. As argued (Skolnik, 2020: 173), Covid-19 shows that a decrease in the number of provisional detentions is possible using other coercive measures.

Instrumental use of criminal procedure for non-criminal purposes, such as the prevention of pandemics, raises the question of whether it is not an abuse of process. In Poland and most of the other European countries, such a concept is unknown, but it does not seem improbable that looking at the ECHR and national constitutions, the concept can be constructed. This would be a basis for negating the use of criminal procedure for purposes that have little to do with the question of criminal responsibility for an act already committed.

Besides, it is worthwhile to observe that under the ECHR, one of the grounds for deprivation of liberty is the lawful detention of persons for preventing the spread of infectious diseases (Article 5 (1) e). This is possible when the spreading of the infectious disease is dangerous to public health or safety and the detention of the person infected is the last resort to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest. ²⁶ Another ground is the lawful arrest or detention of a person for noncompliance with the lawful order of a court or to secure the fulfilment of any obligation prescribed by law (Article 5 (1) b). Staying at home during quarantine could be such an obligation when it is prescribed by law and not ordered by administrative authority. It also has to be specific and concrete, and the arrest and detention must be truly necessary for ensuring its fulfilment. ²⁷ An arrest will only be acceptable under the Convention if the ‘obligation prescribed by law’ cannot be fulfilled by less interfering means. ²⁸

There are therefore proper legal bases for detention to prevent virus spread outside the framework of criminal procedure.

Conclusions

Today, criminal procedure is used for various goals unrelated to its main goal – determining the question of guilt of the accused. This is a fact and seems to be trended. The presented use of criminal procedure for solving Covid-19-related problems in Poland calls for reflection as to whether this way is one which we should follow. Certainly, criminal procedure is a dynamic and living instrument (Kirchengast, 2010: 220). Some of its goals may change over time, as is related to the changing values and needs in society. It is easy to observe that criminal procedure becomes increasingly an instrument of various policies of the State, not only criminal policy.

From this viewpoint, accommodating preventive needs is not excluded, especially considering the preventive turn in criminal justice systems worldwide. A state has a positive obligation to protect its citizens, and if criminal procedure is the best instrument available for that, it can be used. But such ‘procedural prevention’ should be limited to criminal behaviour and crimes, considered serious enough to trigger a reaction from the criminal justice system if a relevant risk appears. Therefore, a risk of some crimes cannot be a basis for using preventive measures, especially if the crime is not sufficiently serious or the potential damage could usually be repaired, as it is, as a rule, possible for crimes against property. The above-presented application of instruments of criminal procedure to protect the victim against harmful but not necessarily criminal conduct in Poland is a signal that criminal procedure is taking the wrong direction, entering the area of civil law. Such a step in exceptional situations may be accepted, as it was for domestic violence, where civil procedure measures proved to be not efficient enough to separate the victim and the perpetrator. However, preventing torts in this way goes too far.

The other issue presented above is overcriminalisation for applying measures of criminal procedure. The drastic increase in penalties for causing the direct danger of infection of contagious disease in Poland raises the question of whether the aim of the lawmaker was to enhance the deterrent effect of criminal provisions or rather enable the law enforcement authorities to initiate criminal proceedings and use coercive measures to isolate the diagnosed persons in situations where they are not obeying administrative orders. The second answer seems more accurate. This raises the question of how far criminal procedure may interfere with the area of administrative law. Administrative sanctions and measures may be inflicted as quickly as in criminal procedure by the decision of administrative authority. The problem is that administrative procedure often does not provide adequate guarantees. Besides, the enforcement process might not be as effective as it would be for criminal procedure. However, this is a question of making relevant changes to administrative procedure.

Overcriminalisation is certainly undesirable state action (Husak, 2007). There might be arguments to justify it based on necessity regarding the dynamic spreading of Covid-19 and its serious consequences for the health and life of citizens, for the functioning of society and for the economy. This requires a quick and effective reaction of the state. However, the regulations will be in force after the Covid-19 pandemic, and the danger is that this is a precedent for solving problems in the future. Besides, the stigmatisation effect of arrest or preventive detention may seriously affect the persons affected by the legislation, which is usually not the case when administrative and civil law measures are applied, although some of them could also be stigmatising (Husak, 2013).

Taking a preventive role by criminal procedure is very risky for many reasons. The main reason is that it may affect the determination of the guilt of the accused, for example, by delaying the final decision or limiting the rights of the defence. Certainly, these are situations that must be avoided. Therefore, using criminal procedure and its measures for preventive purposes must be perceived as an ultima ratio.