On 5 October 2019 the amendment entered into force Act dated dated 6 June 1997 Code of Criminal Procedure (hereinafter referred to as ‘k.p.k.’). The new regulations are to speed up proceedings, and we have many new solutions to strengthen the role of prosecutor in the process.
In this article, I will try to approximate the changes introduced by the amendments, which currently bring the most discussion in the legal environment.
Attempt to accelerate the procedure
The introduction should be considered quite controversial Article 378a k.p.k., which, according to part of the legal environment, infringes the rights of defence guaranteed under Article 42(2) Constitution. According to Article 378a(1) k.p.k.
if the defendant or the defender failed to appear at the hearing when he was notified of its time, the court, in particularly justified cases, may conduct evidence proceedings during his absence, even if he has duly excused the lack of standing and, in particular, may question witnesses who have attended the trial, even if the defendant has not yet submitted explanations.
It is therefore the case where the prosecutor is given the power to block the order issued by the court. The legal environment indicates that such a solution opposes the fundamental principle of the criminal process, according to which the role of the court is to control the prosecutor's decision and to enforce justice
second The amendment is considered to be very controversial Article 454 k.p.k. which allows conviction by the court second the instance of the person to whom the conditional discontinued the proceedings In the first instances.
In such a situation, violations of the constitutional principle of duality can be seen (Article 176 Constitution). In case of conditional discontinuance of proceedings There is no conviction In the first instances.
Therefore, if the appeal court delivers a reformatory – convicting judgment, we will have to issue a final judgment in the case only at the appeal court.
As regards the evidence procedure, in connection with the amendment, Article 170 K.p.k. section 1 an additional point has been introduced to dismiss the application for evidence.
According to the new point 6 an application for evidence shall be dismissed if it has been submitted after the procedural period specified by the requested party. On the other hand, to Article 170 k.p.k.
was also introduced section 1a indicating that evidence cannot be rejected on the basis of section 1 points 5 and 6, where the fact to be proved is essential to determine whether an offence has been committed, whether it constitutes a criminal offence and what or whether the offence has been committed under the conditions in question under Article 64 or Article 65 Criminal Code, or whether there are conditions for a decision to stay in a mental institution based on Article 93g Penal Code.
The legal environment is quite confused about the objective of the regulation. To date, the procedural authority has already had a tool to dismiss the evidence application if it clearly intended to extend the procedure (Article 170 K.p.k. section 1 point 5).
By amendment (Article 315a (k) it was also possible to waive the interrogation of the victim as a witness if the act is not necessary for the purpose of the facts. An injured person who has not been interviewed as a witness should be heard in that capacity if he so requests, unless it would lead to a lengthy procedure. This solution has been introduced in connection with crimes that deal with a very large number of victims (e.g. online fraud).
Strengthening the role of prosecutor
one with critically criticized solutions is the introduction to Article 257 K.p.k.
section 3, according to which, if the prosecutor declares at the latest at the sitting after the order has been announced (as regards the change of custody to another preventive measure), that he opposes the amendment of the preventive measure, that provision, in so far as it relates to the change of the provisional arrest to the property guarantee, becomes enforceable on the date of its finalisation.
It is therefore the case where the prosecutor is given the power to block the order issued by the court. The legal environment indicates that such a solution opposes the fundamental principle of the criminal process, according to which the role of the court is to control the prosecutor's decision and to enforce justice.
The role of prosecutor in the criminal trial has also been reinforced by a change section 2 Article 330 K.p.k.
According to the new wording of the above-mentioned provision, if the investigating authority following its prior repeal by the court) still finds no grounds for bringing an indictment and re-issues the order discontinuance of proceedings or refuse to initiate it, that order shall be subject to appeal to the Chief Prosecutor.
If, on the other hand, the Supreme Prosecutor decides to maintain the order, the victim has the right to file the so-called subsidiary indictment provided for in the procedure Article 55 K.p.k.
Positively assessed changes
The amendment of the Civil Procedure Code also introduced changes that are assessed positive in the legal environment.
one of which is an addition to Article 123 K.p.k. section 3, which introduced analogous arrangements for the civil procedure and administrative procedure as regards the calculation of time limits. New section 3 allows the deadline to be extended to the nearest working day if it falls on a work-free day recognised by the Act or on Saturday.
Also revised Article 405 K.p.k., according to which all protocols and documents which have not been read will be deemed to have been disclosed without reading. With this solution, the court will not be required to read everything that is in the case file, which can allow for speeding up the ongoing proceedings.
Saving time will also allow a brief presentation of the court's ruling and the applicable criminal law provisions in the event of the length of the judgment requiring interruption in its announcement. This option was introduced due to the addition to Article 418 paragraph section 1b.
As you can see, there is a quite large disparity between the positively rated swaps and those that cause much controversy. There is no doubt, however, that the changes made can only be assessed in depth after they have been applied in practice.
Author: Hanna Żołnierkiewicz
Lawyer in the Legal Department. From 2017 associated with Russell Bedford Dmowski & Partners Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He runs the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.