Polish penal proceedings are divided into two phases - preparatory proceedings and judicial proceedings. In theory, preparatory proceedings are conducted under an investigational system, with a public prosecutor in charge of the proceedings. In contrast, judicial proceedings are conducted under an adversarial system, with the prosecutor and the accused being equal parties and with an independent court settling the dispute. However, in practice, since they are obliged to establish the factual circumstances of a case, the Polish courts tend to be the main investigating and evidence-gathering body. This situation may be about to change, following a proposed amendment to the Code of Criminal Proceedings. If introduced, this amendment would have a significant impact on the prosecution of white collar crimes.
The aim of the amendment is to speed up criminal proceedings, as lengthiness is their weakest point. The introduction of a stronger adversarial system should release judges from the need to search for evidence, enabling them to focus on settling parties' disputes. Furthermore, the common situation in which the court takes on the burden of proving the guilt of the accused, due to inactivity on the part of public prosecutors, means that the main dispute during judicial proceedings is between the defence counsel and the court. This is an obvious contradiction of the principle of the impartiality of the court.
The new regulations are intended to enforce the roles of the parties and to limit significantly the court's impact on the course of criminal proceedings. One of the most important changes is that there will be more opportunities for the prosecutor and the accused to perform so-called 'consensual acts' (eg, voluntary submission to penalty or conviction without trial), with a corresponding limitation of the court's entitlement to object to them. In addition, the evidential initiative of the court during proceedings is to be limited to "exceptional, particularly justified cases". Along with many provisions of lesser importance, the active role to be played by the parties concerned should be drastically increased.
If the amendment enters into force, a significant increase in the importance of the parties' role is expected, especially with regard to the accusing parties (ie, the public and subsidiary prosecutors). The role of the injured party as an active subsidiary prosecutor in cases related to more specialised branches of law, such as white-collar crimes, may be crucial, as public prosecutors are rarely familiar with the sophisticated problems of economic crimes.
Furthermore, the Public Prosecutor's Office operates under the rule of unity and indivisibility, which means that it is irrelevant which public prosecutor acts in specific criminal proceedings. In practice, this means that it is very common for a number of different public prosecutors to act in the same case. As a consequence, most public prosecutors are unable to gain the necessary knowledge concerning the cases in which they appear. With the role of the parties in the proceedings increasing, this lack of specialised knowledge with regard to sophisticated white collar crimes will no doubt increase the importance of the injured parties being empowered to act as subsidiary prosecutors. The active participation of injured parties may be the only way for them to ensure the conviction of perpetrators acting to their detriment, or to recover lost assets.
It is difficult to predict what the exact impact of the amendment could be, as its introduction would entail far-reaching changes to the current approach of persons taking part in criminal proceedings, especially judges and prosecutors. The possibility of exceptions - such as the above-mentioned "exceptional, particularly justified cases" - being abused means that, in order for the adversarial system to be fully implemented, most judges will need to change their ways. However, the new approach of legislators and jurisprudence to the further development of the adversarial system in criminal procedure is unambiguous - the active participation of injured parties in criminal proceedings is certain to increase.
For further information on this topic please contact Jarosław Kruk at Kruk & Partners by telephone (+48 22 825 5650), fax (+48 22 825 0980) or email ([email protected]).