Special rights of soldiers, and officers of the Police and the Border Guard with regard to the use of the assistance of counsel for the defence

Abstract

The article is of a scientific and research nature, and it analyses the right, granted by the Act of 26 July 2024 amending certain acts in order to improve the activities of the Armed Forces of the Republic of Poland, the Police and the Border Guard in the event of a threat to state security , to a request for the appointment of public counsel for the defence made by a soldier, or an officer of the Police or the Border Guard accused of a crime committed as a result of the use of direct coercive measures, the use of weapons or other armaments, or the application or making use of direct coercive measures or firearms in connection with the performance of certain official activities or tasks (Article 78a of the Code of Criminal Procedure), as well as broader possibilities of providing financial support to soldiers in covering the costs of legal assistance incurred by them in cases concerning a crime committed in connection with the performance of official tasks and activities (Article 296 par. 5 and Article 316 par. 5 of the Act on the defence of the Homeland). In addition, the provisions authorising the reimbursement of legal assistance costs to officers of certain other services are analysed. The main scientific objective is to assess the justification for the introduction of these amendments to the criminal procedure law, as well as other existing solutions that privilege soldiers and officers of certain services in terms of access to counsel for the defence. The main research theses aim to demonstrate that these changes lead to a violation of the principle of equality before the law. The results of the study are original in nature, as they indicate the need for the legislator’s intervention. The study is of great importance for science, as it contains a dogmatic analysis and a large load of theoretical thought, and for practice, as it indicates directions for the interpretation of the premises for the application of the new provisions, and thus may contribute to their uniform application.