TWO AND A HALF YEARS OF “INNOCENCE DETENTION”

I am fighting for compensation for the wrongs of the innocently arrested.

It irritates me when, in the public or media perception, the arrest, charge or even indictment of someone already makes that person guilty of the alleged – often significant, appalling, often disgraceful – acts.

It is difficult to reasonably think of adequate compensation for the harm and damage caused by the prolonged use of pre-trial detention against a person who, in the light of a final decision, subsequently turns out to be innocent of the charges against him.

Polish law provides for two claims here: for compensation (as compensation for non-pecuniary damage – suffering associated with deprivation of liberty) and for damages (as compensation for strictly material damage – loss of employment, earning capacity, etc.). As regards damages, the case is painfully tangible – the damage suffered must be precisely demonstrated with accurate evidence.
With regard to harm, the matter is not so clear-cut. For it is difficult to calculate, in accordance with some mathematical formula, how much detriment is caused and how much, in monetary terms, is a week – a month – a quarter – a year’s imprisonment of an innocent person worth.

Ten years ago I was approached by a client who had been found not guilty in all the cases brought against him. He had spent a continuous 27 months in custody in these cases.

From the outset, the issue of ‘appraisal’ the harms was crucial. The court of first instance took into account the duration of the detention, the Client’s previous non-criminal record (including the fact that, not being a professional criminal, he could not consider the detention an “accident at work” – an unpleasant element of “occupational risk”). However, the court acted inappropriately by applying a mechanical calculation of the compensation for the harm suffered in one month and multiplying it by the number of months. The decision was appealed by me as defence counsel for the wrongly convicted person. In the appeal, I argued that the use of such a “multiplier” is inappropriate; the harm increases with prolonged isolation; the level of harm is not even during the first, fifteenth and twenty-fifth month of wrongful isolation. While at first the detainee – all the time maintaining that he is innocent – hopes for a quick, favourable clarification of the case and his release, he suffers more and more when he sees the failure of these attempts, and the successive rulings extending the detention for further months. There is a progressive loss of hope that anyone will give credence to his arguments and successfully verify the circumstances presented by him in his defence. As the period of isolation is prolonged, the harm worsens, with a loss of hope, albeit with a failure to come to terms with his undeserved conditions. The Court of Appeal agreed with the reasoning I presented, reversing the judgment and ordering a new, in-depth survey of the accumulation of the degree of harm. After a renewed, this time sufficiently in-depth examination of the case, the client was awarded compensation in an amount several times higher than that originally awarded. The amounts are less important here; at the time, this was one of the highest reparations awarded in the country for ‘arrest for innocence’.
Let us never prematurely pronounce someone’s guilt. The harm done in this way can be no less grievous.