All clients who are or may become involved in criminal proceedings, in particular as injured parties, should be aware of the significant amendment of the Code of Criminal Proceedings and the Criminal Code which came into force on 1 July 2015 (“the Amendment”). The Amendment generally applies to all proceedings where the indictment was brought to the court after 1 July 2015.
For general information please see the Law-now of 10 March 2015. Particular issues of which clients should be aware will be discussed in a series of Law-nows, starting from this part 1, where we will focus on the increased role of professional counsels resulting from the Amendment.
Clients should consider engaging a professional counsel to represent them in criminal proceedings in which they are or might become a party, as the Amendment shifts the burden of conducting evidentiary proceedings from the court to the parties.
The changes introduced by the Amendment are aimed at increasing the adversarial nature of Polish criminal proceedings. Judges are now supposed to play the role of objective arbitrators, and the responsibility for obtaining and presenting evidence lies solely with the parties (the public prosecutor, injured party and defendant). Previously, judges often played a leading role in criminal trials, seeking evidence and interviewing witnesses even when the parties were passive. Following the Amendment, the parties now question witnesses and are responsible for indicating inconsistencies between their testimonies given during the investigation stage of the proceedings and during the court trial phase. It is believed that not all prosecutors will be able to adjust to these new standards. Therefore, it is in particular important for clients who are injured parties to seek assistance and in-depth involvement of professional counsels to make sure their interests are protected.
The amendment also permits the parties to use as evidence private documents prepared specifically for the purposes of the criminal investigation (e.g. private expert opinions). This change, combined with the shift in responsibility for obtaining and presenting evidence, may increase the role and importance of internal investigations conducted by companies in cases of corporate crime.