Supreme Court dated 17 January 2018 on the case under the signature of the file: V KK 144/17 ed fiscal criminal offence conducted in the form of investigations, subject to prosecutorial supervision, the person empowered to file the indictment shall be the prosecutor.
According to the above-mentioned Supreme Court order, the power to bring an indictment to court after the day 30 June 2015, on the case in which the financial investigation authority has conducted an investigation under the supervision of the prosecutor, it should be assessed according to the standard in force under Article 155 the tax penalty code, in the wording given to it by the bill of amendment with 27 September 2013 (Journal of Laws, item 1247 as amended), also where the investigation has been initiated under the provisions in force previously.
From 1 July 2015 indictment in cases of fiscal criminal offence in the form of investigations carried out under prosecutorial supervision, the prosecutor shall bring to the court, not the financial body, e.g. the head of the tax office.
Therefore, according to the Supreme Court, 1 July 2015 indictment in cases of fiscal criminal offence in the form of investigations carried out under prosecutorial supervision, the prosecutor shall bring to the court, not the financial body, e.g. the head of the tax office.
In this case, the indictment was itself filed by the financial authority. The District Court found the defendant guilty on the basis of the indictment fiscal criminal offence. The district court subsequently overturned the judgment and discontinued the proceedings.
The cassation of the judgment was lodged by the chief of the tax office, raising the charge, among others, of a gross violation of the procedural law by accepting that the financial authority was not entitled to bring the indictment itself and by waiving the cassatory decision.
The Supreme Court made clear in this order that the power to bring an indictment to court after a day 30 June 2015 on the case in which the financial authority of the investigation carried out the investigation under the supervision of the Prosecutor, it should be assessed according to the standard concluded under Article 155 k.k.s., in the wording given by the Amending Act with 27 September 2013 in cases initiated during the period of application of earlier provisions. Therefore, since the date 1 July 2015 indictment in cases of fiscal criminal offence in the form of investigations under prosecutorial supervision, shall bring the prosecutor to the court.
In the case at issue by the Supreme Court, even though the initiation of the investigation procedure took place before 1 July 2015, It should have been assumed that the investigation was under the supervision of the prosecutor and that the indictment was dated 14 January 2016 it must be drawn up and brought to the competent court by an authorised prosecutor.
Please indicate that the provision Article 155(2) k.k.s. contains a regulation of the activities of the prosecutor following the transmission by the financial authority of the investigation of an indictment drawn up in the case in which that authority conducted an investigation or an investigation completed under the supervision of the prosecutor. This provision clearly demonstrates the competence of the prosecutor to approve and file an indictment.
The Supreme Court in the judgment in question undoubtedly interprets the provision correctly and correctly Article 155(2) k.k.s., and any disagreements must be regarded as contrary to the legislator's assumptions and will lead to the absence of a complaint by the entitled prosecutor.
Author:
Maciej Tuszyński
Associate in the Legal Department.
Lawyer, member of the District Bar Council in Warsaw, graduate of the Faculty of Law and Administration of the University of Warsaw.
He specializes in commercial and civil law law. He has professional experience, which includes litigation and comprehensive legal advice on the day-to-day service of economic operators, in particular commercial law companies.
As part of his work at the law firm, his practice focuses on corporate, civil and economic matters.