MINISTERY
OF JUSTICE
STATE PROSECUTOR’S OFFICE
Bureau
For Organized Crimes
To
Bureau of the Consultative Council
Of European Prosecutors
From
Małgorzata Kozłowska
Prosecutor in
Bureau for Organized Crimes
In State Prosecutor’s Office
In Warsaw
Poland
your number CCPE-BU(2007) 15rev
With reference to your letter from 7th June 2007, I enclose questionnaire on alternatives prosecution in Poland, sent to State Prosecutor’s Office Bureau for Organized Crimes.
Yours sincerely
Małgorzata Kozłowska
Ad. 1.
Due to legal framework the Polish legal system follows a system of mandatory prosecution.
The situation hasn’t changed for the last two years and there are no changes approaching.
The legality principle is based on art. 10 of Criminal Procedure Code, which constitutes:
§ 1. The agency responsible for prosecuting offences shall have the duty to institute and conduct the preparatory proceedings, and the public prosecutor shall have also the obligation to bring and support charges, with respect to an offence prosecuted ex officio.
§ 2. Except for cases described in domestic law or international law, no-one may be discharged from liability for a committed offence.
The provision creates the obligation to sentence the person who has committed a prohibited act, when the crime commited is under penalty by law in force at the time of its commission.
Firstly, consequences must be prosecuted. Any other activities are not pursued by law.
Ad. 2., 3.
There is a possibility for judicial authorities in Poland to choose between criminal law measures and other responses.
The institution is called “conditional discontinuance”, which is defined in art. 66 of the Criminal Code.
The court may conditionally discontinue the criminal proceedings when:
· guilt and social consequences of the act are not significant,
· the offence’s penalty exceeds 3 years deprivation of liberty,
· circumstances of commission of an offence do not rise doubts,
· perpetrator was not previously penalised for an intentional offence,
· sharing of the perpetrator and way of his life provide reasonable ground for assumption that he will observe the legal order and particularly that he will not commit an offence.
There is a possibility to apply for conditional discontinuance in the case of offences which penalty exceed 5 years deprivation of penalty. Strict condition are set in § 3 of art. 66:
· the injured party has been reconciled with perpetrator,
· the perpetrator has redressed the damage or the injured party and the perpetrator have agreed on the method of redressing the damage.
First institution to decide weather to choose the criminal law measures or conditional discontinuance of criminal proceeding is a prosecutor’s office. When conditions are fulfilled – the prosecutor can prepare and file with a motion of conditional discontinuance, instead of an indictment to the court (art. 336 § 1 of the Criminal Procedure Code). The prosecutor may also indicate suggested probation period, as well as imposed obligations on the accused and file a motion regarding supervision.
The public prosecutor, the victim and the accused could participate in the session of court recognizing conditional discontinuance. There is also a possibility for the accused and injured to reach an agreement on the matter of redressing damage or compensation (§ 3 of art. 341)
Ad. 4.
The criteria for abandoning the criminal prosecution’s approach are set in art. 17 of Criminal Procedure Code, witch states:
Article 17. Criminal proceedings shall not be instituted, or, if previously instituted, shall be discontinued, when:
(1) the act has not been committed, or there have not been sufficient grounds to suspect that it has been committed,
(2) the act does not possess the qualities of a prohibited act, or when it is acknowledged by law that the perpetrator has not committed an offence,
(3) the act constitutes an insignificant social danger,
(4) it has been established by law that the perpetrator is not subject to penalty,
(5) the accused is deceased,
(6) the prescribed statute of limitations has lapsed, or
(7) criminal proceedings concerning the same act committed by the same person has been validly concluded or, if previously instituted, is still pending,
(8) the perpetrator is not subject to the jurisdiction of the Polish criminal courts,
(9) there is no complaint from an entitled prosecutor,
(10) there is no permission required for prosecuting the act, or no motion to prosecute from a person so entitled, unless otherwise provided by law,
(11) other circumstances precluding such proceedings occur.
Points 3, 10 are the most important for mandatory principle
Pkt. 3
Social consequences are the factors which act as criteria for abandoning the criminal prosecution. When social consequences are significant (so called social danger) the deed can constitute an offence.
The definition is provided in art. 1 § 2 of the Criminal Code – which states:
“a prohibited act whose social consequences are insignificant shall not constitute an offence”.
The prosecutor is a person to decide whether an activity is an offence.
Pkt. 10
There are the following offences prosecuted in the Polish legal system:
- ex officio, where the legality principle is very clear,
- prosecuted from private accusation. By virtue of art. 60 § 1 of Criminal Procedure Code in the private accusation proceedings a prosecutor is obliged to institute a criminal procedure or enter the case instituted by a victim in the case of public interest. It should be underlined, that there are no strict criteria of public interest neither a definition. The prosecutor’s duty is to estimate the existence of public interest,
- prosecuted at the motion of the victim – for instance a rape or a menace (threat). To institute proceedings when the offence is prosecuted on the basis complaint, the motion of complaint must be filed. Such proceedings shall be thenceforth conducted ex officio. The prosecuting agency shall advise the person entitled about this right (art. 12 of Criminal Code Procedure).
Ad. 5.
There are possibilities to avoid prosecution in the Polish legal system.
The first one is based on art. 11 § 1 of the Criminal Procedure Code, which constitutes:
“The proceedings in a case of misdemeanour, carrying a penalty of deprivation of liberty for up to 5 years, may be discontinued if imposing the penalty on the perpetrator would be obviously inexpedient in light of a penalty validly decided for another offence, and as long as the interest of the injured is not prejudiced”.
The second, and the most important one is established in Act on Key (Crown) Witness. This specific regulation provides a possibility for perpetrators to act as witnesses in organized crime cases or cases or conspiracy aimed at committing certain serious crimes committed in organized crime groups, specified in the Act. Key (Crown) witness is a suspect whose testimony as a witness has been admitted after fulfilling following conditions:
· until the moment when indictment has been field to the court,
· he – as a suspect – had provided law enforcement body with an information leading to detect of a crime, apprehend of perpetrators,
· detect or prevent of other crimes,
· obliged himself to present at court an extensive testimony concerning other persons participating in the criminal act as well as circumstances connected to committed specified offence.
A Crown Witness has an opportunity to avoid prosecution after fulfilling the above conditions. It is regulated by art. 7 I 9 of the Act.
Art. 7 § 1
In case of passing by a Court a decision on reception on evidence of testimony of key witness, public prosecutor shall make out copies of documents concerning a person indicated in the court’s decision and shall exclude them to separated proceeding, witch lasts until the decision on proceedings against other perpetrators in final and valid.
Art. 9
§ 1 He perpetrator shall not be subject to penalty for an offence or fiscal offence (…) in which he took part and which he revealed as key witness in a course defined by this law.
§ 2 Public prosecutor shall give a decision on discontinuance of proceedings within 14 days from the day when decision finishing proceedings against these perpetrators whose part in an offence the key witness revealed and against whom he testified in final and valid (…).
Ad. 6
In the Polish legal system a victim is a party authorized to act on behalf and in line with his interest, during preliminary proceeding by virtue of art. 299 § 1 of the Code of Criminal Procedure.
An information principle is very important in the Polish procedure. According to art. 16 of the Code of Criminal Procedure the agency conducting the proceedings is under obligation to advise the parties to the proceedings of their rights and duties. In the case of misinformation provided by the agency conduction the proceeding , it cannot result in any adverse consequences in the course of the trial to engaged parties.
Victims have right to appeal against the decision when criminal prosecution was dropped.
The injured may file an private indictment to the court when the state prosecutor has decided to refuse to institute proceedings, or on the discontinuation of the proceedings again. The file must be submitted to the court within one month from the date of notification about such a decision.
This principle is stated in art. 55 of the Criminal Procedure Code.
Ad. 7.
The injured person may, until the commencement of the judicial examination at the main trial, file a civil complaint against the accused in order to litigate, within the framework of the criminal proceedings, his property claims directly resulting from the offence (art. 62 of the Criminal Procedure Code).
When the civil complaint has been filed in the course of the preparatory proceedings, the agency conducting the proceedings shall file the civil complaint in the record of the case.
The Prosecutor has the right to file a civil complaint on the behalf of the injured or support the complaint filed by the injured person or any other person, if the public interest requires such an action. Public interest is the basic factor to take up such a decision (art. 64 of the Criminal Code Procedure).
If the court has refused to admit a civil complaint or has left in unheard, the civil plaintiff may litigate his claim in civil proceedings.
The right to appeal the court’s verdict by civil plaintiff may concern only a civil complaint.
Ad 8,9 not concerned with the Polish legal system.