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Criminal law

1. The prosecutor's office has instituted proceedings against me (I am accused of theft), can I leave the country?If I left, would an arrest warrant be issued?

In accordance with Article75 § 1 of the Code of Criminal Procedure, an accused who is not detained, is obliged to appear whenever summoned while the criminal proceedings are in process, and to advise the agency conducting the proceedings of any change of residence or sojourn exceeding 7 days. The accused is to be so informed at his first hearing.

Thus, the accused is not obliged to stay at the place of his residence, unless such an obligation results directly from the adopted preventive measure, e.g. the prohibition of absenting oneself from a designated area of residence (Article275 § 2 of the Code of Criminal Procedure) or the prohibition to leave the country.

A prohibition preventing the accused from leaving the country (usually combined with seizing his passport or with a prohibition to issue such a document) is a preventive measure which, in accordance with Article 277 § 1 of the Code of Criminal Procedure, is applied only if there is good reason to fear that you may want to escape.In order for the documents to be seized, the prosecutor has to issue a decision or (until issuing such a decision) seize the document which entitles you to cross the border.The document may be retained for a period not exceeding 7 days.

Thus, if no decision about applying the above-mentioned preventive measures has been issued, you can leave the country, informing about the change of residence or sojourn exceeding 7 days.It is worth noting, however, that if, when summoned, you fail to appear without justification, you may be brought under duress.

If you do not know yet where you will be living abroad, you may appoint a representative ad litem (e.g. a family member). Such a person will be able to receive letters from the prosecutor's office.  If your place of stay will be unknown and you will not appear when summoned, the prosecutor may order to take you back by force or to search for you (Article278 of the Code of Criminal Procedure) or issue the order for search in the form of an arrest warrant.

Therefore, if you plan to go abroad, you should:

provide information on your place of stay abroad by giving the address or appoint a representative ad litem;

always appear when summoned by the prosecutor's office, by the police or by any other body conducting the proceedings (in the preparatory proceedings summons do not have to be numerous if you have already been heard, although all depends on the type of the case).

 As far as the presence at hearing is concerned - see question No. 6.


2. I am a suspect in a criminal case, although no indictment has been served on me yet.May I be represented by a lawyer during proceedings by the prosecutor?

Yes, during proceedings by the prosecutor, you may be represented by an attorney.It can be either a legal advisor or a counsel, but it depends on the phase of criminal proceedings and on your status in the proceedings.

If you have been charged with having committed an offence, you automatically become a suspect and you can only be defended.In Poland, it is only a counsel who may act as your defence counsel.If you have not been charged with committing an offence (it's the so-called in rem phase, i.e. proceedings, e.g. for theft, have been initiated, but these are not proceedings against Mr X) you may appoint an attorney to represent you (e.g. when you are summoned to appear as a witness). Legal advisor may also act as your attorney.However, when you have been charged with committing an offence, if you want to be represented, you may only appoint a counsel. Legal advisor will not be able to act as your defence counsel.

In order to appoint an attorney or a defence counsel, you need to, after having chosen a lawyer, sign the power of attorney and its original version will be included in your case-file. The prosecutor's office is obliged, if legal regulations so provide, to inform your attorney / defence counsel about any actions that it undertakes (e.g. about the termination of the proceedings, bringing criminal prosecution, etc.).


3. May I appoint an attorney "via the Internet"?

Currently, it is not possible to appoint an attorney "via the Internet".Obviously, it is possible to exchange documents via the Internet. It means that after having chosen an attorney/a defence counsel, the latter sends (e.g. by e-mail) a power of attorney which needs to be printed and signed before it is sent by post. A power of attorney may also be sent as a scan, which is treated as a copy that after authentication by an attorney/a defence counsel has the validity of the original. However, you always need to send the original of the power of attorney to your attorney/defence counsel by post.


4. I am abroad and I know that I have received a notification of the letter sent by the prosecutor's office.No one has collected the letter and it has been sent back to the prosecutor's office.May the prosecutor pronounce a judgement?

No, a prosecutor cannot pronounce a judgement because in Poland judgements are pronounced only by courts.We don't know what was in the letter sent by the prosecutor so it is difficult to say what the prosecutor may do, but he cannot pronounce any judgement.


5. I am a private prosecutor (me and my friends have been defamed on the Internet) and I am currently abroad. Do I have to be present during the whole court proceedings?Will it be enough if I appoint an attorney to represent me in court?Can I issue an indictment together with my friends (as a group)?

In accordance with Article59 § 1 of the Code of Criminal Procedure, the injured person may bring an indictment as a private prosecutor, or support an indictment with respect to a privately prosecuted offence. In principle, you may be represented by an attorney.But two remarks need to be made at this point.Firstly, either you or your attorney needs to be present at every hearing (no matter which phase of the proceedings this is), otherwise, the court has the right to discontinue the proceedings because it will treat it as the withdrawal of the indictment.If you are absent, your attorney has to be present at every hearing.It is also worth noting that in defamation cases (thus private prosecution cases) the first hearing is a conciliation hearing during which (in principle) the court encourages the parties to reach a settlement.It is when the court may regard your presence as compulsory and you will have to appear in court.

A collective indictment is possible. In accordance with Article59 § 2 of the Code of Criminal Procedure, any other person injured by the same act may only join the proceedings prior to the commencement of the judicial examination at the main trial.The act needs to be the same and indictments need to be brought together prior to the commencement of the judicial examination at the trial.The judicial examination shall commence with the reading of the indictment by the prosecutor (i.e. you) (Article385 § 1 of the Code of Criminal Procedure).The indictment may be read by your attorney.In such a case you may be represented by a legal advisor, but you need to remember that:the accused may file the so-called reciprocal charge for an act and then you may only be represented by a counsel, with regard to the act being imputed to you. In accordance with Article 497§ 1 of the Code of Criminal Procedure, the accused (for defamation/insult) may, before the commencement of the judicial proceedings at the main trial, file against the private prosecutor who is an injured party, a reciprocal charge for an act subject to prosecution on a private charge, being related to the act imputed to the accused.The court shall then examine both cases together.


6. Who can act as a defence counsel in the Polish court?Do I, being an accused, have to be present at every hearing? At the moment, I am abroad and I know that an indictment against me has already been brought to the court.

A counsel is the only one who can act as a defence counsel in the Polish court. A legal advisor, a legal counsellor or a person who has completed legal studies cannot act as a defence counsel.Lists of counsels are available at the websites of Bar Councils (e.g. www.ora-warszawa.com.pl).In principle, an accused shall be present at every first-instance hearing (Article374 § 1 of the Code of Criminal Procedure), however, in accordance with Article376 § 1 of the CCP, if the accused who has already given his explanations, and having been notified of the date of the adjourned or interrupted hearing, has not come to that hearing and has not justified his non-appearance, the court may complete the hearing in his absence, and the judgement thus rendered shall not be regarded as issued by default. The court shall order the accused to be brought to the courtroom under duress only if it finds his presence indispensable.

Additionally, Article 377 § 3 provides that if the accused, notified of the date of hearing, states that he will not participate in the hearing or prevents himself from being brought to the hearing or notified of the date of hearing in person, does not come to that hearing and does not justify his non-appearance, the court may continue the hearing without his presence, unless it finds the presence of the accused indispensable.

Therefore, if you declare that you don't want to participate in the hearing and you are represented only by a defence counsel, the court may continue the hearing without your presence.You will not be able, however, to state, e.g. in the appeal, that the court failed to respect procedural guarantees and continued hearing without your presence.

And the most important remark - the court may continue the hearing without your presence only if you have been notified of the date of that hearing.Thus, if you (or e.g. a representative ad litem that you have appointed) have not been duly informed, the court cannot continue the hearing without your presence.Then, the court may order that you be brought to the courtroom under duress.


7. I have been sentenced to a suspended term of imprisonment and the court has placed me on probation.I went abroad and the probation officer has stated that I evade the supervision. The probation officer told my mother that the court has ordered the execution of the penalty in accordance with Article75 § 2 of the Penal Code.I have not been informed about it and my mother hasn't received any information either. What does it mean and is the court entitled to do it?

The hearing concerning Article75 § 2 of the Penal Code means that the court will consider the possibility of ordering the execution of the penalty, i.e. ordering the execution of the imprisonment sentence.The court may do it, although it doesn't have to.The Penal Code stipulates that a court may order the execution of the penalty if the sentenced person in the probation period flagrantly breaches the legal order, and, in particular, if he evades the supervision.However, each case should be treated individually because - in accordance with court judgements - the fact that the sentenced person placed on probation goes abroad (Article76 § 2 of the Penal Code) - even planning to stay there for a long time - is not the basis for the assumption that such a person evades supervision (e.g. the resolution of the Supreme Court of 12 December 1995 I KZP 35/95). The fact of evading supervision means that the sentenced person is not willing to cooperate with the probation officer.

In your case, however, the fact that you haven't been informed about the hearing is very important.In accordance with Article 178 § 2 of the Executive Penal Code, at the hearing relative to the ordering of the execution of the penalty, the prosecutor, the sentenced person and his defence counsel may be present; if the sentenced person has been placed on probation or obliged to accomplish responsibilities related to the probation period, a court probation officer may also be present. The sentenced person does not have to be present if the conditions for the execution of the penalty specified in Article75 § 1 of the Penal Code (i.e. when the court orders the execution of the penalty because you have been sentenced again) or in Article75 § 3 of the Penal Code (i.e. if you committed a crime or flagrantly breached the legal order) are met.

If you haven't received any information (you have not been summoned to appear at the hearing), your rights of defence have been infringed. You have had the right to participate in the hearing and the court was obliged to inform you about it. Such failure to provide information constitute the so-called unconditional appellate cause which, in case of challenging the order, should lead to the annulment thereof.


8. I have received a notification informing me that the court has changed the fine I have not paid to the imprisonment. What can I do? I don't want to go to prison. I am abroad at the moment and I have completely forgotten about the fine. Did the court have right to change the fine into imprisonment?

The best solution is to pay the whole amount to the bank account intended for the payment of the fine (numbers of bank accounts of a given court marked "payment of the fine" are available on the website of every Polish court). After having paid, you need to write a letter to the court (including the reference number that you have in the decision), asking for immunity from imprisonment due to the fact that the fine has already been paid to the court's bank account.A scan of a document confirming that the payment has been made should be attached to the letter.

By virtue of the provisions of Article45 § 1 and Article 46 § 1 of the Executive Penal Code, the court had the right to order either a community service (if the fine has not exceeded 100 daily payments) or change the fine to an alternative penalty of imprisonment (if the sentenced person does not agree to carry out community service or evades it, or when the change of a fine to a community service is impossible or aimless).

You can lodge a complaint against the decision concerning the change of a fine into imprisonment.If you have not received any call to pay the fine, you can lodge a complaint against the decision to change the fine into an alternative penalty of imprisonment. The court may only make such a decision if it has called you to pay the fine, informing you about the possibility of a change into an alternative penalty. If the court has failed to do that, it didn't have the right to decide about the change into an alternative penalty.

If you are not able to pay the total amount of the fine, you should pay at least a part of it.Then you can send a letter to the court asking for leniency with regard to an alternative penalty. In accordance with Article47 § 1 of the Executive Penal Code, if a fine has been paid in part, the president of the court or an authorized judge orders the leniency with regard to an alternative penalty, taking into consideration the proportion of the paid amount to the total amount of the fine.


9. Yesterday, I learnt that my husband, who resides in Poland, was arrested. Can I, being abroad, appoint a defence counsel for him in Poland? How to do it? Will such a power of attorney from me be valid?

In the Polish criminal proceedings there is the so-called “temporary power of attorney”.In accordance with Article 83 § 1 of the Code of Criminal Procedure, the accused himself shall retain the defence counsel, but before an accused deprived of liberty retains a defence counsel, the latter may be retained by another person of which the accused shall be promptly informed. This doesn't have to be a member of the family, it can be any person who will "decide on behalf of the detained".Such a "temporary defence counsel" will be able to take any procedural steps.However, the accused should be informed about this fact, i.e. the fact of appointing a defence counsel.An accused may either confirm such a power of attorney or appoint a different person as the defence counsel (then, the power of attorney of a "temporary defence counsel" expires).

If you stay abroad, the easiest way is to choose a lawyer and ask him to send you a power of attorney form by e-mail. You just need to print it, sign it, scan it and send it back to the lawyer. The original of the power of attorney should be sent to the lawyer by post (or in a different way).

Answers have been prepared by Mrs Monika Brzozowska

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