Code of Criminal Procedure of the Republic of Poland (1997) (excerpts related to a Fair Trial (Right to a)) (English)
[excerpts]
Act of 6 June 1997
Code of Criminal Procedure
Dz.U.97.89.555
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Chapter 4
The injured person
Article 49. § 1. The injured is a natural or legal person whose property or rights have been directly violated or threatened by an offence.
§ 2. A public, local government or social institution may also be treated as the injured person even though it has no status of legal person.
§ 3. The Social Security Agency shall also be regarded as an injured person to the extent of the indemnity paid by it to the injured person as a result of the injury caused by the offence, or that which it is obligated to cover.
§ 4. In cases arising out of offences which have inflicted damage upon the property of public, local government or a social institution and in which the injured institution is not acting, the rights of the injured person may be exercised by those agencies of state control which, within the scope of their activities, have brought the offence to light or have applied for the institution of proceedings.
Article 50. In the court proceedings, the rights of the injured person referred to in Articles 53 and 62 may not be exercised by the person who is the accused in the same case, except for cases provided for in Articles 497 and 498 § 3.
Article 51. § 1. All actions pertaining to the proceedings on behalf of an injured person who is not a natural person, shall be conducted by an agency authorised to act in this manner.
§ 2. If the injured person is a minor or is incapacitated either totally or partially, his rights shall be exercised by his legal representat ive or by one who has custody of the injured person.
Article 52. If the injured person dies, his rights may be exercised by his closest relatives or, when they are either absent or not discovered, by a state prosecutor.
Chapter 5
The subsidiary prosecutor
Article 53. In cases of indictable offences, the injured person may participate in the judicial proceedings as a party thereto, by assuming the role of subsidiary prosecutor, alongside the public prosecutor of instead of him.
Article 54. § 1. If the indictment has been filed by the public prosecutor, the injured person may, before the commencement of the judicial examination in the main trial, file a statement in writing on his intention to act as subsidiary prosecutor.
§ 2. The public prosecutor's withdrawal of the indictment shall not deprive a subsidiary prosecutor of his rights.
Article 55. § 1. In the event that the state prosecutor again decided on the refusal to institute proceedings, or on the discontinuation of the proceedings, in the case referred to in Article 330 § 2, the injured may, within one month of the date of the service of notification about such decision, file an indictment in the court. A copy should be supplied for each of the accused and one copy for the state prosecutor. The provision of Article 488 § 2 shall apply accordingly. The provisions of Article 339 § 3 subsection 4 and Article 397 shall not apply.
§ 2. The indictment filed by the injured shall be prepared and signed by a barrister, in compliance with conditions specified in Articles 332 and 333 § 1; if the injured party is a public, local government or social institution, the indictment may also be prepared by a legal counsel.
§ 3. Others injured by the same act may join in the proceedings before the commencement of the judicial examination in the main trial.
§ 4. The public prosecutor may also participate in the proceedings instituted by an indictment filed by the subsidiary prosecutor.
Article 56. § 1. The court may limit the number of subsidiary prosecutors participating in the proceedings if this safeguards the proper course of the proceedings. The court shall decide that a subsidiary prosecutor may not participate in the proceedings when the agreed number of subsidiary prosecutors specified by the court is already participating in the proceedings.
§ 2. The court shall decide that a subsidiary prosecutor may also not participate in the proceedings if it finds that such a prosecutor is an unauthorised person or his bill of indictment or a statement on his intention to act as subsidiary prosecutor, was submitted after the prescribed timelimit.
§ 3. The order issued by the court under § 1, and also the order issued by the court under §
2 if it concerns the subsidiary prosecutor as specified in Article 54 or Article 55 §3, shall not be subject to interlocutory appeal.
Article 57. §1. In the event that the subsidiary prosecutor waives his rights he shall not be allowed to re-enter the proceedings.
§ 2. In a case where the public prosecutor does not participate, the court notifies the state prosecutor of the withdrawal of the indictment by the subsidiary prosecutor. Failure to file an indictment by the state prosecutor, within 14 days of receiving such notification will result in the discontinuance of the proceedings.
Article 58. §1. The death of the subsidiary prosecutor shall not interrupt the proceedings; the closest relatives of the injured may intervene in the proceedings as subsidiary prosecutors at any of its consecutive stages.
§ 2. In the event of the death of the subsidiary prosecutor who alone supported his bill of indictment, Article 61 shall apply accordingly.
Chapter 6
The private prosecutor
Article 59. § 1. The injured person may bring an indictment as a private prosecutor, or support an indictment with respect to a privately prosecuted offence.
§ 2. Any other person injured by the same act may only join the proceedings, prior to the commencement of the judicial examination at the trial.
Article 60. § 1. In the case of offences prosecuted by private accusation, the state prosecutor shall institute proceedings, or intervene in proceedings previously instituted, if the public interest so requires.
§ 2. In such cases the proceedings shall be conducted ex officio, and the injured person who has brought a private accusation shall be granted the rights of a subsidiary prosecutor. The provisions of Articles 54, 55 § 3 and Article 54 shall be applied to an injured person who did not previously bring such an indictment.
§ 3. If the state prosecutor who has previously joined in the proceedings, withdraws his indictment, the injured person shall be restored to the rights of a private prosecutor in any further proceedings.
§ 4. The injured person who has not brought an indictment, may within a final time-limit of 14 days from the day on which he receives notification of the state prosecutor's withdrawal, submit an indictment or a statement to the effect that he supports and maintains the indictment as a private on.
If he fails to make such a statement, the court shall discontinue the proceedings.
Article 61. § 1. In the case of the death of the private prosecutor the proceedings shall be suspended, and the closest relatives may assume the rights of the deceased.
§ 2. If within the final time-limit of three months from the day of the death of the private prosecutor, an authorised person fails to assume the rights of the deceased, the court shall discontinue the proceedings.
Chapter 7
The civil plaintiff
Article 62. The injured person may, until the commencement of the judicial examination at the main trial, file a civil complaint against the accused in order to litigate, within the framework of the criminal proceedings, his property claims directly resulting from the offence.
Article 63. § 1. In the event of the death of the injured person, a civil complaint with property claims directly resulting from the offence, may be filed against the accused by the closest relatives within the time-limit prescribed in Article 62.
§ 2. In the event of the death of the private plaintiff, the closest relatives may assume the rights of the deceased. If they fail to do so, this shall not impede the course of the proceedings and in issuing its decision concluding the proceedings, the court shall leave the civil complaint unheard.
Article 64. The state prosecutor may, within the time-limit prescribed in Article 62, file a civil complaint on behalf of the injured or of a person named in Article 63 § 1, or support the complaint filed by the injured person or such other person, if the public interest so requires.
Article 65. § 1. Before instituting a judicial examination, the court shall reject a civil complaint if:
(1) the civil complaint is inadmissible by reason of some special provision,
(2) the claim has no direct connection with the charges included in the indictment,
(3) the civil complaint has been filed by an unauthorised person,
(4) the same claim is the object of another proceedings or a valid and final decision has been issued with respect thereto, or
(5) there is an obligatory joint participation, on the side of defendants, of a public, local government or social institution, or of a person who is not participating as the accused.
§ 2. If the civil complaint is in proper form, and the circumstances set forth in § 1 do not occur, the court shall issue a decision on the admission of the civil complaint.
§ 3. The court shall leave the private complaint unheard, even if previously admitted, if after the commencement of the judicial examination, any of the circumstances listed in § 1, comes to light.
§ 4. The refusal of the court to admit a civil complaint, or the fact that it has been left unheard pursuant to § 3, shall not be subject to interlocutory appeal.
Article 66. The civil plaintiff may submit evidence in support of only those circumstances upon which his claim in civil proceedings is founded.
Article 67. § 1. If the court has refused to admit a civil complaint or has left in unheard, the civil plaintiff may litigate his claim in civil proceedings.
§ 2. If within the final time-limit of thirty days from the day of the refusal by the court to admit a civil complaint or to hear it, the civil plaintiff moves to refer his complaint to the appropriate court having jurisdiction over civil cases, the day on which the claim has been filed in criminal proceedings shall be deemed as the day of the filing of the civil complaint.
Article 68. If the proceedings pending in a criminal court are suspended, the civil plaintiff may require his civil complaint to be referred to the appropriate court having jurisdiction over civil cases.
Article 69. § 1. If the civil complaint has been filed in the course of the preparatory proceedings, the agency conducting the proceedings shall file the civil complaint in the record of the case, and the court shall issue an order on the admission of the civil complaint after the indictment has been filed. In such cases, the day on which the claim is filed shall be considered as the date on which the civil complaint has been filed.
§ 2. If, simultaneously with the civil complaint, a motion is made requesting security for the claim, the decision in this matter shall be rendered by the state prosecutor.
§ 3. The order on giving security for the claim shall be subject to interlocutory appeal.
§ 4. In the event that the preparatory proceedings are discontinued or suspended, the injured person may, within a final time-limit of 30 days from the date on which the order is delivered, demand that the case be referred to the appropriate court having jurisdiction over civil cases. If, within the prescribed time-limit, the injured fails to do so, the security shall be annulled, and the civil complaint previously filed shall be without legal effect.
Article 70. In the event that a question concerning a civil complaint is not regulated by the present Code, the provisions of the Code of Civil Procedure shall be applied accordingly.
Chapter 8
The accused
Article 71. § 1. A person shall be considered a suspect if the order has been made about presenting the charges to the person, or the charges have been presented to the person directly (without the order) in relation to interrogating him as a suspect.
§ 2. A person against whom an indictment has been filed, and also a person with respect to whom the state prosecutor conditionally discontinued proceedings, shall be considered an accused.
§ 3. Whenever the term "accused" is used generally in the present Code, such provisions shall apply to the suspect as well.
Article 72. When the accused does not have a command of the Polish language, the order on the presentation of charges, the indictment or a decision subject to review, or a decision concluding the proceedings shall be delivered to the accused with a translation. If the accused consents, the decision concluding the proceedings may only be announced to him, providing it is not subject to review.
Article 73. § 1. The accused while under preliminary detention may communicate with his defence counsel without other persons present, or by mail.
§ 2. In preparatory proceedings the state prosecutor who issues his permission for such communications may, where particularly justified, demand that he or a person authorised by him shall be present at such meeting.
§ 3. The state prosecutor may also stipulate that the correspondence of the accused with his defence counsel be controlled.
§ 4. The stipulations referred to in § 2 and 3 may not continued or effected after the lapse of 14 days after the date of temporary detention.
Article 74. § 1. The accused is under no obligation to prove his innocence or obligation to submit evidence in his disfavour.
§ 2. The accused shall, however, be under the obligation to submit:
(1) to an external examination of his body and to other examinations not involving any invasion of bodily integrity; in particular, the fingerprints of the accused may be taken; he may be photographed and presented to other persons, in order to establish his identity,
(2) to psychological and psychiatric examinations and to examinations involving certain tests to be conducted upon his body, except surgical procedures, provided that they are effected by a person on the health-service staff, according to medical directions and do not constitute a challenge to the health of the accused. If such examinations are indispensable; in particular, the accused shall be under an obligation, in conformity with the above conditions, to submit blood and excretory samples.
§ 3. The actions referred to in § 2 subsection 1 may be also performed in respect to the suspect, and with the suspect's consent, and in conformity with the conditions referred to in § 2 subsection 2, blood or excretory samples may also be taken.
§ 4. The Minister of Justice in consultation with the Minister of Health and Social Welfare, shall issue an ordinance setting forth the detailed conditions and methods to be used, when the accused or the suspect is submitted to medical examination.
Article 75. § 1. An accused who is not detained, is obligated 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.
§ 2. If the accused fails to appear without justification, he may be brought under duress.
Article 76. If the accused is either a minor or incompetent, his legal representative or the person in whose custody he is, may undertake to act on his favour in the proceedings and, in particular, to seek review, submit motions and appoint a defence counsel.
Article 77. The accused may not have more than three defence counsel at any one time.
Article 78. § 1. An accused who has not retained defence counsel, may demand that defence counsel be appointed to him ex officio, if he can duly prove that he is unable to pay the defence costs without prejudice to his and his family's necessary support and maintenance.
§ 2. The court may withdraw an appointment of a counsel ex officio if it comes to light, that the circumstances leading to the appointment did not exist.
Article 79. § 1. In criminal proceedings the accused must have defence counsel if:
(1) he is minor,
(2) he is death, dumb, or blind,
(3) there is good reason to doubt his sanity,
(4) he has no command of the Polish language.
§ 2. The accused must have a defence counsel, when the court deems that necessary because of circumstances impeding the defence.
§ 3. In the cases described in § 1 and 2, the participation of defence counsel in the trial is mandatory, as well as in those sessions where the presence of the accused is mandatory.
§ 4. If, in the course of proceedings, the expert psychiatrists find that there is no reason to doubt the sanity of the accused, he must, nevertheless, have a defence counsel until the valid conclusion of the proceedings.
Article 80. The accused must have defence counsel in proceedings before a Voivodship Court as a court of first instance if he is accused of felony or deprived of his liberty. In such a case the participation of defence counsel at the main trial is mandatory; it shall be also mandatory at the appellate and cassation hearing, if the president of the court finds it necessary.
Article 81. If the accused in cases specified in Articles 78 § § 1 and 2, Article 79 § 1 and 2, and Article 80, has no defence counsel of his own choice, the president of the court having jurisdiction shall appoint a defence counsel ex officio.
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Chapter 21
WITNESSES
Article 177. § 1. Any person summoned as a witness is obligated to appear and testify.
§ 2. A witness who cannot comply with a summons by reason of illness, serious disability or any other insurmountable obstacle, may be heard at his place of stay.
Article 178. The following persons may not be examined in the capacity of witnesses:
1) defence counsel on facts communicated to him while he was giving legal advice or conducting the case, or
2) a priest on facts communicated to him in confession.
Article 179. § 1. Persons obligated to preserve a State secret may be examined as to the circumstances to which this obligation extends only if released from the obligation to preserve such secret by an authorised superior agency.
§ 2. Such a release may be refused only if the giving of evidence might result in serious damage to the State's interests.
§ 3. The court or the state prosecutor may apply to the appropriate State central administration agency requesting that a witness be released from the obligation to preserve a secret.
Article 180. § 1. Persons obligated to preserve an official secret, or secrets connected with their profession or office may refuse to testify as to the facts to which this obligation extends, unless they have been released by the court or the state prosecutor from the obligation to preserve such a secret.
§ 2. Persons obligated to preserve secrets such as lawyers, physicians or journalists, may be examined as to the facts covered by these secrets, only when it is necessary for the benefit of the administration of justice, and the facts cannot be established on the basis of other evidence. The court shall decide on examination or permission for examination. This order of the court shall be subject to interlocutory appeal.
§ 3. Releasing a journalist from the obligation to preserve a secret may not permit data to be released, enabling identification of the author of press enunciation, letter to the editor or other material of the same nature, as well as identification of persons imparting information published or passed to be published, if these persons reserved the right to keep the data secret.
§ 4. The provision of § 3 shall not apply, if the information regards the offence referred to in Article 240 § 1 of the Penal Code.
§ 5. The refusal of a journalist to disclose the data referred to in § 3, shall not exempt him from liability for an offence he committed by publishing information.
Article 181. § 1. In the cases described in Articles 179 and 180, such persons shall be examined at the trial in closed session.
§ 2. The Minister of Justice shall issue an ordinance setting forth the manner in which the record of testimony concerning circumstances, to which the obligation of preserving State, official and professional secrets extends, shall be kept.
Article 182. § 1. The next of kin of the accused may refuse to testify.
§ 2. The right to refuse to testify shall not expire, even though the marital or adoptive relationship has been dissolved.
Article 183. § 1. A witness may decline to answer a question, if such an answer might expose the witness himself or his next of kin to liability for an offence or a contravention.
§ 2. A witness may demand to be examined at the trial in closed session, if the contents of his testimony may expose him or his next of kin to disgrace.
Article 184. § 1. If there is a justified concern for safety of life, health, freedom or loss of property of considerable dimension regarding the witness or his next of kin, the court, and in the preparatory proceedings -- the state prosecutor, may issue an order classifying as secret the personal data of such witness.
§ 2. In the event that the order referred to in § 1 has been issued, the personal data of the witness shall be known exclusively to the court, the state prosecutor and, when necessary, to a police official who conducts the proceedings. Records of testimonies of the witness may be made available to the accused or his defence counsel only in the manner preventing identification of the witness.
§ 3. The witness shall be examined by the state prosecutor and by the court which may direct a judge from its composition to do so -- at a place and in a manner ensuring secrecy as to the identity of the witness.
§ 4. Examining the witness with the participation of the accused or the defence counsel may only be carried out under such conditions which prevent disclosure of the witness' identity.
§ 5. The court order on the matter of keeping the identity of the witness secret shall be subject to interlocutory appeal within three days. An interlocutory appeal against the order of the state prosecutor shall be decided by the court having jurisdiction over the case. The proceedings regarding the interlocutory appeal are kept secret. In the event that the interlocutory appeal has been granted, the record of the examination of the witness shall be destroyed and the note of it made in the file of the case.
§ 6. The Minister of Justice shall issue an ordinance setting forth:
1) the technical conditions for the examination of a witness whose personal data shall be kept secret,
2) the methods for making, preserving and providing access to records of testimonies including information about a witness whose personal data is kept secret, as well as an admissible method of referring to such testimonies in court decisions and pleadings.
Article 185. A person having a particularly close relationship to the accused may be exempted from the obligation to give testimony, if such a person applies for such an exemption.
Article 186. § 1. If a person entitled to refuse to give testimony or exempted pursuant to Article 185, declares his wish and intention to avail himself of this right no later than the commencement of his testimony at the trial before a court of the first instance, any testimony previously given by him cannot be used as evidence, or reproduced.
§ 2. The record on the examination of bodily injuries, prepared in criminal proceedings, shall be made public at the trial, even if the person examined has refused to furnish explanation or to give testimony, or has been exempted from so doing pursuant to Article 182 or 185.
Article 187. § 1. The pledge of the witness may be given only to the court or to a designated judge.
§ 2. The pledge shall be given by the witness before he commences to testify.
§ 3. The obligation to have a pledge given by the witness may be waived, if the parties present do not object.
Article 188. § 1. The witness shall give his pledge by repeating after the judge the following words: “ Being fully aware of the significance of my words and of my responsibility before the law I solemnly promise to state the truth and not to conceal anything known to me.”
§ 2. When a pledge is taken, all persons present including the judges, shall stand.
§ 3. Dumb and deaf persons shall give their pledge by signing text.
§ 4. A witness who has already given his pledge in the case, shall be reminded of his prior pledge upon any new examination by the court, unless the court finds it necessary to receive a second pledge.
Article 189. A pledge shall not be accepted:
1) from persons under the age of 17,
2) if there is good reason to suspect that the witness, by reason of mental disorder, does not understand the true significance of the pledge,
3) if the witness is suspected of the offence constituting the object of the proceedings or closely connected with act which is the object of proceedings, or if he has been duly sentenced for this offence, or
4) if the witness has been validly sentenced for giving false testimony or making false accusation.
Article 190. § 1. Before commencing the examination the court shall inform the witness of the penal liability for giving a false testimony.
§ 2. In the course of proceedings the witness shall sign a statement to the effect that he has been informed of this penal liability.
Article 191. § 1. The examination shall begin by the witness being asked his name and surname, age, place of residence, his criminal record for giving false testimony, and whether he is related, and how, to the parties.
§ 2. The witness should be warned of the contents of Article 182, and also of Articles 183 and 185, if any facts foreseen by these provision, are disclosed.
§ 3. If there is a justified concern for the possible use of violence or unlawful threat against a witness or his next of kin, in connection with his actions, he may restrict details regarding his place of residence to the exclusive knowledge of the state prosecutor or the court. The pleadings shall be then served at the institution where the witness is employed or at other address indicated by the witness.
Article 192. § 1. If the penal liability of the act committed depends on the health of the injured person, the latter shall not refuse examination of his body or medical examination, provided no surgical operation or observation at a health institution is involved.
§ 2. If there is any doubt as to the witness's mental condition, his intellectual development, or ability to perceive or recollect the things perceived, the court or the state prosecutor may rule that such a witness be examined with the aid of a medical expert or a psychiatrist and that witness cannot refuse this.
§ 3. Provisions of § 1 and 2 shall not apply to persons who have refused to testify or have been exempted from this obligation, pursuant to Article 182 § 1 and 2 or Article 185.
§ 4. If necessary for purposes of taking evidence, a consenting witness may be submitted to an examination of his body and to medical or psychological examination.
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Chapter 25
Seizure of objects and searches
Article 217. § 1. Objects which may serve as evidence, or be subject to seizure in order to secure penalties regarding property, penal measures involving property or claims to redress damage, should be surrendered when so required by the court, the state prosecutor, and in cases not amenable to delay, by the Police or other authorised agency.
§ 2. A person holding the objects subject to surrender shall be called upon to release them voluntarily, but in the event of refusal, the seizure may be effected.
§ 3. If the surrender is demanded by an agency other than the state prosecutor, it shall produce to the holder of the objects liable to surrender, an order of the court or of the state prosecutor or, if it has not been possible to obtain the order prior to seizure, a warrant from the chief of unit, or an official identity card. The agency should then apply without delay, to the court or the state prosecutor for approval of the seizure of the objects. The holder shall be served, within 7 days of the seizure of the objects, an order of the court or the state prosecutor authorising the action.
§ 4. A psychiatric dossier shall be surrendered only to the court or the state prosecutor.
Article 218. § 1. Offices, institutions and entities operating in post and telecommunications fields, customs houses, and transportation institutions and companies, shall be obligated to surrender to the court or state prosecutor upon demand included in their order, any correspondence or transmissions significant to the pending proceedings. Only the court and a state prosecutor shall be entitled to inspect them or to order their inspection.
§ 2. The announcement of the order referred to in § 1, may be adjourned for a prescribed period, necessary to promote the proper conduct of the case.
§ 4. Correspondence and transmissions irrelevant to the criminal proceedings should be returned to the appropriate offices, institutions or companies as set forth in § 1, without delay.
Article 219. § 1. A search may be made of premises and other places in order to detect or detain a person or to ensure his compulsory appearance, as well locate objects which might serve as evidence in criminal proceedings, if there is good reason to suppose that the suspected person or the objects sought are to be located there.
§ 2. A search of a person, his clothing and objects at hand, may also be carried out in order to find the objects referred to in § 1, under the conditions set forth in the provision.
Article 220. § 1. A search may be conducted by the state prosecutor, or, a with warrant issued by the court or state prosecutor, by the Police, and, also in cases specified in law, by another agency.
§ 2. The person on whose premises the search is to be conducted should be presented with a warrant issued by a court or state prosecutor.
§ 3. If the court's or state prosecutor's warrant cannot be issued, Article 217 § 3 shall apply accordingly in cases not amenable to delay.
Article 221. § 1. Searches of occupied premises shall be conducted at night only in cases not amenable to delay; “night” shall be the period from 9 p.m. to 6 a.m.
§ 2. A search commenced by day may be continued into the night.
§ 3. A night search may be conducted on premises that are at the time open to the public, or used for the storage of goods.
Article 222. § 1. If a search is to be made of the premises or a closed place of a State or local government agency, the head of such an institution or his deputy, or the relevant agency of control shall be notified and permitted to be present at the search.
§ 2. A search of military premises shall be conducted only in the presence of the commanding officer or a person designated by him.
Article 223. Searches of person and clothing are to be conducted, as far as possible, by a person of the same sex as the person searched.
Article 224. § 1. A person on whose premises the search is to be conducted, shall be notified before the commencement of the search of its objective and summoned to surrender the objects sought.
§ 2. A person referred to in § 1 has the right to be present at the search, in addition to the person designated for that purpose by the person conducting the search. Furthermore, the search may be attended by a person designated, by the occupant of the premises searched, provided that this will not seriously obstruct the search, or render it impossible.
§ 3. In the event that the search is made in the absence of the owner of the premises, at least one adult member of the household or neighbour shall be called in to attend the search.
Article 225. § 1. If the head of a State or local government institution subject to search or the person from whom objects have been seized, or whose premises are searched, declares that a writing or other document surrendered or discovered during the search, contains information relating to State, official, professional or other secrets protected by law, or that this information is of a personal nature, those conducting the search shall immediately transmit such writing or other document without prior reading, to the state prosecutor or the court, in a sealed container.
§ 2. The procedure described in § 1 shall not apply to writings and other documents relating to official, professional or other secrets protected by law if they are in the possession of a person suspected of an offence, nor to writings and other document of a personal nature of which such person is an owner, author or addressee.
§ 3. If a defence counsel or other person of whom surrendering objects is demanded, or whose premises are searched, declares that writings or other documents discovered in the course of a search, relate to facts connected with the performance of the function of the defence counsel, the agency conducting the actions shall leave these documents with such person, without ascertaining their contents or appearance. When the declaration of a person not being a defence counsel gives rise to doubts, the agency conducting the actions shall transmit the documents, in accordance with the requirements set forth in § 1 to the court. Having acquainted itself with the documents, the court shall return them all or in part, in accordance with requirements set forth in § 1, to the person from whom they were taken, or issue an order for their seizure for the purposes of the proceedings.
Article 226. In matters regarding the using of documents containing State, official or professional secrets as evidence in criminal proceedings, the prohibitions and limitations set forth in Articles 178-181 shall apply accordingly.
Article 227. Searching or seizing objects shall be conducted in accordance with the objective of the action, with moderation and respect for the dignity of the persons to whom the action relates, and without unnecessary damage or hardship.
Article 228. § 1. Material objects surrendered or discovered during a search, after being viewed and recorded, shall be seized or deposited with a trustworthy person who shall be notified of his duty to present them whenever so required, by the agency conducting the proceedings.
§ 2. Similar action should be taken concerning objects discovered during a search which may constitute evidence of some other offence, or are subject to forfeiture, or the possession of which is prohibited by law.
§ 3. Persons concerned shall be given without delay a receipt specifying the objects seized, and the identity of the persons performing the seizure;
Article 229. The record of objects seized or of the search should include, apart from the requirements set forth in Article 148, the designation of the case with which the objects seized or the search have been connected, and should specify the precise time of the beginning and the end of the action, detailed list of the objects seized and, when needed, their description, and also an indication of the warrant of the court or state prosecutor. If the warrant has not been issued before the action, the record shall contain a note advising a person in whose premises the action has been conducted, that an order regarding the approval of action will be served.
Article 230. § 1. If the seizure of objects or search was without a prior warrant issued by the court or state prosecutor, and no order approving the action has been issued, the objects seized shall be returned to the authorised person.
§ 2. Material objects, as soon as they are deemed unnecessary for the purposes of the criminal proceedings shall be returned to the authorised person. If there is a dispute as to the right of the possession of the objects, and no grounds for immediate solution can be found, the interested parties will be referred to the process under civil law.
§ 3. The objects, possession of which is prohibited should be transmitted to the appropriate bureau or institution.
Article 231. § 1. If the person to whom a given material object seized should be released cannot be ascertained, such an object shall be deposited with the court or with a trustworthy person until the right to the possession thereof has been clarified. Provisions on the escheat of deposits and unclaimed objects shall be applied accordingly.
§ 2. Material objects of artistic or historic value shall be deposited with an appropriate institution.
Article 232. § 1. Material objects which are perishable or the storage of which would entail unreasonable expense or excessive hardship or would significantly impair the value of the object, may be sold without an auction, by means of an appropriate trading unit. The provisions applicable to sales resulting from the execution against chattels should be applied.
§ 2. The proceeds of such a sale shall be deposited with the court.
§ 3. All persons concerned including the accused should be notified, if possible, of the time and circumstances of such a sale.
Article 233. When depositing Polish or foreign currency, the depositing agency shall indicate the nature of the deposit and the manner in which it should be disposed.
Article 234. Dispositions of the material object after it has been seized or secured shall be without effect on the State Treasury.
Article 235. During the court proceedings, the determinations and actions shall be undertaken by the court, or in the preparatory proceedings -- by the state prosecutor, unless provided otherwise by law.
Article 236. Orders regarding search and seizure shall be subject to interlocutory appeal by a person whose rights have been violated.
Chapter 26
Surveillance and recording conversations
Article 237. § 1. After the proceedings have started, the court, upon a motion from the state prosecutor may order surveillance and recording of the content of telephone conversations, in order to detect and obtain evidence for the pending proceedings or to prevent a new offence from being committed.
§ 2. In cases not amenable to delay, the surveillance and recording of conversations may be ordered by the state prosecutor who is, however, obligated to obtain an approval for the order from the court within 5 days.
§ 3. The surveillance and recording of the content of telephone conversations is allowed only when proceedings are pending or a justified concern exists, about the possibility of a new offence being committed regarding:
1) homicide,
2) causing a danger to the public or causing a catastrophe,
3) trade in humans or white slavery,
4) the abduction of a person,
5) the demanding of a ransom,
6) the highjacking of an aircraft or a ship,
7) robbery or robbery with violence,
8) the attempt against the sovereignty or independence of the State,
9) the attempt against the constitutional order of the State or on its supreme agencies, or against a unit of the Armed Forces of the Republic of Poland,
10) spying or disclosing a State secret,
11) amassing weapons, explosives or radioactive materials,
12) the forging of money,
13) the drug trafficking,
14) organised crime group,
15) property of significant value,
16) the use of violence or unlawful threats in connection with criminal proceedings.
§ 4. Surveillance and recording of the contents of telephone conversations shall be permitted with regard to a suspected person, the accused, and with regard to the injured person or other person whom the accused may contact or who might be connected with the perpetrator or with a threatening offence.
§ 5. Offices, institutions and entities operating in the post and telecommunications fields shall be obligated, to facilitate the ex ecution of an order from the court or state prosecutor, regarding the surveillance of telephone conversations, and to ensure that the conducting such a surveillance is registered.
§ 6. Only the court and a state prosecutor shall be entitled to play the recordings, and in cases not amenable to delay, the Police with the approval of the court or state prosecutor.
§ 7. Only the court shall have the right to acquaint itself with the register of telephone conversation surveillance, and in the course of proceedings -- the state prosecutor.
Article 238. § 1. The surveillance and recording telephone conversations may be conducted for a period not exceeding 3 months, with a possibility to extend, in particularly justified cases, for a period not exceeding a further 3 months.
§ 2. The surveillance should be ended without delay after the reasons listed in Article 237 § 1 through 3 have ceased to exist, and no later, than with the expiration of the period for which it was introduced.
§ 3. After the surveillance has been completed, the court orders the destruction of the recordings when they have no relevance to the criminal proceedings; the destruction of the recordings shall also take place when the court has not approved the order by the state prosecutor referred to in Article 237 § 2.
Article 239. The announcement of the order to conduct surveillance and recording of telephone conversations to the person concerned, may be adjourned for a period necessary to promote the proper conduct of the case but not beyond the valid conclusion of the case.
Article 240. Orders for surveillance and recording of telephone conversations shall be subject to interlocutory appeal. The appeal against the order of the state prosecutor is considered by the court.
Article 241. The provisions of this chapter shall apply respectively to surveillance and recording by technical means, of the content of information transmissions other than telephone conversations.
Article 242. The Minister of Justice in consultation with the Ministers: of Posts and Telecommunications, of National Defence, and the Minister of Internal Affairs and Administration shall issue an ordinance setting forth the method for the technical preparation of the telecommunication network and the method for making, registering, storing and destroying recordings of the taped telephone conversations.
Part VI
Coercive measures
Arrest
Article 243. Any one has the right to apprehend a person caught in the act of committing an offence, or seized in a pursuit undertaken directly following the commission of an offence, if it is feared that such person may go into hiding or if his identity cannot be established.
§ 2. The apprehended person should be surrendered to the Police without delay.
Article 244. § 1. The Police shall be authorised to arrest a suspected person if there is good reason to suppose that he has committed an offence, and it is feared that such a person may go into hiding or destroy the evidence of his offence or if his identity could not be established.
§ 2. The arrested person shall be informed immediately about the reasons for his arrest and his rights and his explanations shall be heard.
§ 3. A record of the arrest shall be made in which the following should be included: the name, surname and position of the person conducting the action, the name and surname of the arrested person, and in the event that identity of the arrested person could not be established, a description of the said person, and the day, hour, place and reason for the arrest, and act for which he is suspected. The statements by the arrested person should also be recorded and the fact noted that he has been reminded of his rights. The copy of the record shall be served on the arrested person.
§ 4.. As soon as possible after the arrest of the suspected person, the measures necessary for the collection of essential information should be taken; and, in the event that the grounds referred to in Article 258 § 1 through 3 occur, a motion to the state prosecutor should be made, requesting him to obtain a preliminary detention order from the court.
Article 245. § 1. The arrested person, upon his demand, shall be given the opportunity to contact a lawyer by any means available, and also to talk directly with the latter. The person who made the arrest may reserve the right to be present when such a conversation takes place.
§ 2. The provisions of Article 261 § 1 and 3 shall apply accordingly, but the notification shall be effected upon the demand from the arrested person.
Article 246. § 1. The arrested person shall have the right to lodge an interlocutory appeal with the court. In this appeal the arrested person may request an examination of the grounds and legality of his arrest and the correctness thereof.
§ 2. The interlocutory appeal shall be immediately referred to the district court having jurisdiction for the place of arrest, which shall examine the matter immediately.
§ 3. In the event that the arrest has been found to be unjustified or illegal, the court shall rule the immediate release of the arrested person.
§ 4. In the case of finding lack of justification or illegality of the arrest or serious irregularities in the conduct thereof, the court shall notify the state prosecutor and the agency in control of the agency which made the arrest.
§ 5. A joinder of interlocutory appeals against arrest and preliminary detention may be examined together.
Article 247. § 1. The court or the state prosecutor may issue a ruling providing for the arrest and compulsory appearance of a suspected person. A search may be ordered for this purpose. Articles 220 through 222 and 224 shall be applied accordingly.
§ 2. The provisions of Article 246 shall apply accordingly to the arrest referred to in § 1, but the arrest ruled by the court shall not be subject to interlocutory appeal.
§ 3. The rulings regarding the arrest and compulsory appearance of a soldier in active service shall be carried out by the appropriate military authorities.
Article 248. § 1. The arrested person should be released without delay after the reasons for his arrest have ceased to exist, and also when he has not been handed over to the court, within 48 hours of his arrest by an authorised agency, together with a motion to apply preliminary detention; he shall also be released upon an order from the court or state prosecutor.
§ 2. If, within forty-eight hours of the handing over the arrested person to the court a copy of the order for his preliminary detention has not been served on him, he shall be released.
§ 3. Re-arresting the suspected person on the grounds based on the same facts and evidence shall be inadmissible.
Chapter 28
Preventive measures
Article 249. § 1. Preventive measures may be applied in order to secure the proper conduct of the proceedings, and exceptionally, to prevent a new serious offence from being committed by the accused. It may be applied only if the evidence collected indicates a high probability that he has committed an offence.
§ 2. In the preparatory proceedings, preventive measures may only be applied to a person for whom an order on the presentation of charges has been issued.
§ 3. Before a preventive measure is applied, the court or the state prosecutor applying the measure shall examine the accused, unless it is not possible due to the latter being in hiding or abroad. The defence counsel retained should be admitted to be present if he has appeared; although notifying the defence counsel of the date of examination is not obligatory, unless requested by the accused provided that it does not render the action difficult.
§ 4. Preventive measures may continue until the commencement of serving the sentence.
This provision shall only apply to the preliminary detention in the event of sentencing to the deprivation of liberty.
§ 5. Defence counsel shall be notified of the date of the court session, regarding the extension of the preliminary detention and examining the interlocutory appeal against the application or extension of this preventive measure. A failure to appear by a defence counsel who has been properly notified of the date shall not prevent the examination of the case
Article 250. § 1. Preliminary detention may only occur on the basis of an order from the court.
§ 2. Preliminary detention shall be applied in the course of proceedings, upon a motion from the state prosecutor, by the district court in the district where proceedings are pending, and in cases not amenable to delay, by another district court. After an indictment has been filed, a preliminary detention shall be applied by the court before which the proceedings are pending.
§ 3. The state prosecutor, sending the motion referred to in § 1 together with the files of the case, shall, at the same time, order the suspect to be brought to court.
§ 4. Other preventive measures shall be applied by the court and, also in the course of proceedings by the state prosecutor.
Article 251. § 1. The order on the application of a preventive measure shall contain the name of the person, the act imputed, its legal qualification, and the legal basis for the application of such a measure.
§ 2. The order of preliminary detention should set forth the duration of the preliminary detention and designate the time-limit of the detention.
§ 3. The justification for the order on the application of a preventive measure, shall present evidence demonstrating that the accused committed an offence, and refer to the facts indicating the existence of grounds necessitating the application of a preventive measure. In the case of the preliminary detention it should be further explained why applying other preventive measures has been regarded as insufficient.
Article 252. § 1. The order on preventive measures shall be subject to interlocutory appeal pursuant to general provisions, except in the case referred to in § 2.
§ 2. An order of the state prosecutor for a preventive measure shall be subject to interlocutory appeal to the district court before which the proceedings are pending.
§ 3. An interlocutory appeal from an order on preventive measure shall be examined without delay.
Article 253. A preventive measure shall immediately be revoked or amended if its basis has therefor ceased to exist, or new circumstances arise which justify the revoking, or its amendment.
§ 2. The preventive measure applied by the court may also be, in the course of proceedings, revoked or amended to a milder measure by the state prosecutor.
Article 254. The accused may at any time move to have a preventive measure revoked or amended; such a motion shall be resolved by the state prosecutor not later than three days after filing; or, if the indictment has already been filed, by the court before which the case is pending. The order of the court deciding on the motion shall not be subject to the interlocutory appeal, and in the event that interlocutory appeal has been filed against the order of the the state prosecutor, the provision of Article 252 § 2 shall not apply.
Article 255. The fact that the proceedings have been suspended, shall not restrict a decision on preventive measures.
Article 256. The court, and in the preparatory proceedings -- also the state prosecutor, shall supervise the arrest and the proper execution of preventive measures.
Article 257. § 1. Preliminary detention shall not be applied if another preventive measure is sufficient.
§ 2. In applying temporary detention the court may reserve that the measure will be amended when an agreed bail is posted with the court within the prescribed time-limit.
Article 258. § 1. Preliminary detention may occur if:
1) there is good reason to fear that the accused may take flight or go into hiding, particularly if he has no permanent residence in this country or when his identity cannot be established or
2) there is good reason to fear that the accused would induce other persons to give false testimony or attempt to obstruct the criminal proceedings in some other manner.
§ 2. If the accused has been charged with a crime or with a misdemeanour carrying the statutory maximum penalty of deprivation of liberty of a minimum of 8 years, or if the court of the first instance sentenced him to a penalty of deprivation of liberty of no less than 3 years, the need to apply the preliminary detention in order to secure the proper conduct of proceedings may be justified by the severe penalty threatening the accused.
§ 3. Preliminary detention may also occur, in exceptional cases when there is good reason to fear that the accused charged with a crime or an intentional misdemeanour would commit an offence against life, health or public safety, particularly if he threatened to commit such an offence.
§ 4. Provisions of § 1 through 3 shall apply accordingly to the remaining preventive measures.
Article 259. If there are no special reasons to the contrary, preliminary detention should be waived, particularly if depriving the accused of his liberty:
1) might seriously jeopardise the life or health of the accused, or
2) would entail an excessive burden on the accused or his next of kin.
§ 2. Preliminary detention shall not be applied when the facts of the case permit presumption that the court will sentence the accused to the penalty of deprivation of liberty with conditional suspension of its execution, or to a milder penalty, or that the term of preliminary detention would exceed the expected sentence of deprivation of liberty without a conditional suspension.
§ 3. Preliminary detention cannot be imposed, if the offence carries the penalty of deprivation of liberty not exceeding one year.
§ 4. The restrictions referred to in § 2 and 3 shall not apply if the accused has remained in hiding, persistently failed to appear when summoned or when his identity cannot not be established.
Article 260. If the state of health of the accused so requires, preliminary detention may only assume the form of committing the accused to a suitable medical establishment.
Article 261. § 1. The court shall be obligated to promptly notify the next of kin of the accused, that preliminary detention has been imposed; this may be a person indicated by the accused..
§ 2. On a motion of the accused, another person may be notified, instead of, or in addition to the person indicated in § 1.
§ 3. The court shall be obligated to promptly notify the employers or the school or higher educational establishment, or, in the case of a soldier his commanding officer, of the imposition of preliminary detention.
Article 262. § 1. A court which imposes preliminary detention shall be obligated to:
1) notify the guardianship court, if it is necessary to ensure the cus tody of the children of the detainee,
2) notify the social welfare authority, if care is needed for a disabled or ailing person who formerly was under the care of the detainee, and
3) take all measures necessary to protect the property and residence of the detainee.
§ 2. The detainee should be informed of the measures taken and rulings issued.
Article 263. § 1. In the course of proceedings, the court applying preliminary detention shall designate a period not exceeding three months.
§ 2. If in view of the special circumstances of the case, the preparatory proceedings cannot be completed within the time-limit specified in § 1, preliminary detention while the investigation is pending may be extended on a motion from the state prosecutor, if necessary:
1) by the court having jurisdiction over the case for up to six months,
2) by a court of a higher level than that having jurisdiction over the case for an additional prescribed period, necessary for the completion of the preparatory proceedings, which may not, however, exceed twelve months.
§ 3. The combined period for applying preliminary preceding the first sentence by the court of the first instance may not exceed two years.
§ 4. The extension of applying preliminary detention over the periods specified in § 2 and 3, may be made only by the Supreme Court on a motion from the court before which the case is pending, and in the course of proceedings on a motion from the Attorney General. This can be done if deemed necessary in connection with a suspension of criminal proceedings, prolonged psychiatric observation of the accused, prolonged preparation of an opinion of an expert, conducting evidentiary action in a particularly intricate case or conducting them abroad, intentional protraction of proceedings by the accused, and also other important obstacles whose removal has not been possible.
§ 5. A motion for the extension of preliminary detention should be filed, at the same time as the files of the case are referred to the court of jurisdiction, and not later than 14 days prior to the expiry of the time-limit so far prescribed for the application of the measure.
Article 264. § 1. In the event that the accused is acquitted; or the proceedings are discontinued or conditionally discontinued; or the imposition of the penalty is conditionally suspended; or the imposition of a penalty of deprivation of liberty corresponding at most to the period of preliminary detention, or a shorter term of deprivation of liberty, or if the court refrains from imposing a penalty, the discharge of the detainee shall be ordered without delay, unless he has been detained in connection with some other criminal case.
§ 2. In the event that the accused detainee is sentenced to a penalty other than that specified in § 1, the court, after hearing the parties present, shall issue an order regarding the further application of the preliminary detention.
§ 3. If the proceedings have been discontinued by reason of the insanity of the accused, preliminary detention may be maintained until the valid conclusion of the proceedings on the matter of a preventive measure.
Article 265. The term of preliminary detention shall be computed from the day of arrest.
Article 266. § 1. Bail stated in monetary terms, in the form of cash, securities, a bond, or a mortgage may be deposited by the accused or another person.
§ 2. The amount, kind and conditions of the bail, and particularly the time-limit for depositing, shall be specified in the order, with due regard to the financial circumstances of the accused and the person posting bail, the gravity of the damage caused and the character of the act committed.
Article 267. A person posting bail shall be notified on each occasion that the accused is summoned to appear. Articles 138 and 139 § 1 shall be applied accordingly to a person posting bail for the accused.
Article 268. § 1. The property and obligations which constitute bail shall be subject to forfeiture or collection if the accused takes flight or goes into hiding. If the course of the criminal proceedings is otherwise hindered, such property may be subject to forfeiture or collection pursuant to an appropriate decision.
§ 2. The person posting bail should be notified of the content of § 1 hereof and of Article 629.
Article 269. § 1. The property or sum of money constituting bail which has been forfeited or collected, shall be transferred or paid in to the State Treasury; the injured person shall then have priority in satisfying his claims resulting from the offence, if damages cannot be redressed by other means.
§ 2. If bail ceases to be necessary, the property constituting the same and the sum of money pledged shall be released; if, however, the accused is sentenced to a deprivation of liberty, bail shall be withdrawn only after he has begun serving his sentence. If the accused fails to appear to serve his sentence, Article 268 § 1 shall be applied.
§ 3. The withdrawal of bail shall become effective only with the acceptance of other bail, the imposition of another preventive measure, or the waiver of the relevant preventive measure.
§ 4. The provisions of § 2 and 3 shall not apply to the withdrawal of bail and to the return of the security, if the order on forfeiture of bail or on the collection of the sum pledged, has been issued.
Article 270. § 1. The forfeiture of the property constituting bail or the collection of the sum pledged shall be ordered ex officio by the court before which the proceedings are pending; or in the preparatory proceedings, by the court having jurisdiction over the case, on the motion of the state prosecutor.
§ 2. The accused and the person posting bail shall have the right to participate in the court session or to file written statements. An accused deprived of liberty shall be brought to such session if the president of the court or the court itself consider it necessary.
§ 3. The order described in § 1 shall be subject to interlocutory appeal.
Article 271. § 1. A guaranty may be given by the managers of the plant, office, school or higher education establishment of which the accused is an employee or student, or by a community organisation of which he is member, on the motion of such persons. Such a guaranty shall state that the accused will appear whenever summoned and will not obstruct the course of the proceedings; if the accused is a soldier, such guaranty may be taken from the relevant collective of soldiers, declared through its commanding officer.
§ 2. The collective or social organisation concerned shall append to the motion requesting that guaranty be accepted, an excerpt from the minutes of such a body stating the decision or resolution on furnishing guaranty.
§ 3. The motion requesting that guaranty be accepted should indicate the person who will undertake the duties of the guaranty-provider. Such a person shall make a statement to the effect that he accepts such duties.
Article 272. A guaranty to the effect that the accused will appear whenever summoned and that he will not obstruct the course of the proceedings, may also be accepted from any trustworthy person.
Article 273. § 1. When a guaranty is accepted, the guaranty-provider should be notified of the contents of the charge against the accused, of his duties resulting from the giving of this guaranty and the possible effects in the event of his failure to discharge the same.
§ 2. The guaranty-provider shall be obligated to inform the court or state prosecutor immediately, if it should come to his knowledge that the accused is trying to avoid his duty to appear when summoned or to obstruct the course of the proceedings in some other way.
Article 274. If despite the guaranty the accused fails to appear when summoned or obstructs the proceedings in some other manner, the agency which has imposed the preventive measure shall so notify the guaranty-provider. In addition, the agency may notify his immediate superior as well as the community organisation of which he is a member, and the agency in control of the plant, office, or community organisation which had given the guaranty, if it is ascertained that a dereliction of the duties arising from the giving of the guaranty has occurred. Before sending such notice, the guaranty-provider should be summoned to give an explanation.
Article 275. § 1. As a preventive measure, the accused may be committed to the surveillance of the Police and, if the accused is a soldier, to the surveillance of the soldier's commanding officer.
§ 2. A person under surveillance shall be obligated to comply with the conditions set forth in the order of the court or state prosecutor. These obligations may consists in the prohibition of absenting himself from a designated area of residence, in his having to report to the agency under the surveillance of which he remains in specified time intervals, and to inform such an agency of any intention to absent himself and the time of his return, as well as other limitations on his freedom of movement necessary to assist the surveillance.
Article 276. As a preventive measure, the accused may be suspended from his official function or performance of his profession or be ordered to refrain from a specific type of activity or from driving specific types of vehicles.
Article 277. § 1. If there is good reason to fear of his taking flight, a prohibition preventing the accused from leaving the country may be applied as a preventive measure, which may be combined with seizing his passport or other documents enabling him to cross the border, or with a prohibition to issue such a document.
§ 2. Until the order on matters referred to in § 1 is issued, the agency conducting proceedings may retain a document but for a period not exceeding 7 days. The relevant provisions of Chapter 25 shall apply to the seizing of documents.
(...)
Part VII
PREPARATORY PROCEEDINGS
Chapter 33
General provisions
Article 297. § 1. The objectives of preparatory proceedings are as follows:
1) to establish whether a prohibited act has been committed and whether it constitutes an offence,
2) to detect the perpetrator and, if necessary, to effect his capture,
3) to collect data, as provided in Articles 213 and 214.
4) to elucidate the circumstances of the case, including the extent of the damage,
5) to collect, secure and record evidence to the extent required.
§ 2. In the preparatory proceedings attempts shall also be made to elucidate circumstances favourable to the commission of the act.
Article 298 § 1. The preparatory proceedings shall be conducted by the state prosecutors, and, within the scope provided by law, the Police. In the cases provided for in law, other agencies shall have the powers of the Police.
§ 2. Actions in the preparatory proceedings provided in law shall be conducted by the court.
Article 299. § 1. In the course of preparatory proceedings the injured and the suspect are parties thereto.
§ 2. In the cases provided for in law, persons other than the parties shall also have specified rights.
§ 3. In court actions in the course of preparatory proceedings, the state prosecutor shall have the rights of a party.
Article 300. Prior to first examination, a suspect shall be advised of his rights: to give or refuse to provide explanations, or to answer questions, to submit motions for actions in inquiry or investigation, to use the assistance of a defence counsel, as well as of the right specified in Article 301 and on the duties and obligations specified in Articles 74, 75, 138 and 139. These instructions shall be given to the suspect in writing who should should confirm receipt with his signature.
Article 301. On a motion from the suspect he shall be examined in presence of a retained counsel. The absence of the counsel shall not prevent the examination from being conducted.
Article 302. § 1. Persons who are not parties to the preparatory proceedings shall have the right to lodge an interlocutory appeal against the orders and rulings which violate their rights.
§ 2. Parties and persons who are not parties may bring an interlocutory appeal against actions other than those which violate their rights.
Chapter 34
Instituting investigation or inquiry
Article 303. If there is good reason to suspect that an offence has been committed, an order on instituting an investigation or inquiry shall be issued, either ex officio or upon receiving a notice of an offence, describing the act in question and setting forth its legal classification.
Article 304. § 1. Whoever learns that an offence prosecuted ex officio has been committed, shall be under civic duty to inform the state prosecutor or the Police.
§ 2. State or local government institutions which in connection with their activities have been informed of an offence prosecuted ex officio, shall be obligated to immediately inform the state prosecutor or the Police thereof. In addition they are obligated to take steps not amenable to delay, until the arrival of the officials of an agency authorised to prosecute such offences, or until that agency issues a suitable ruling in order to prevent the effacing of traces and evidence of the offence.
§ 3. The Police shall immediately refer a notice of an offence for which conducting an investigation is compulsory, or their own information indicating that such an offence has been committed, to the state prosecutor, together with any materials collected.
Article 305. § 1. Having received notice of an offence, the agency authorised to conduct the preparatory proceedings shall be obligated to issue immediately, an order on instituting or the refusal to institute an investigation or inquiry.
§ 2. An order on the institution, refusal to institute or on discontinuance of an investigation shall be issued by the state prosecutor.
§ 3. An order on the institution of an inquiry shall be issued by the Police who then immediately forward a copy of the order to the state prosecutor. An order on refusal to institute or on discontinuance shall be issued by the state prosecutor or the Police; the order issued by the Police shall be approved by the state prosecutor.
§ 4. The person, the State, local government or community institution which submitted a notice of an offence, and the injured disclosed shall be notified of the institution, refusal to institute or on discontinuance of investigation or inquiry. The suspect shall also be notified of the discontinuance -- along with a notification of their rights.
Article 306. § 1. The injured person and the institution specified in Article 305 § 4 shall have the right to bring interlocutory appeals against an order refusing to institute an investigation or inquiry, and the parties shall have such right with respect to the order on discontinuance. Those having right to bring an interlocutory appeal shall have the right to inspect the files of the case.
§ 2. The interlocutory appeal shall be brought to a state prosecutor superior to the state prosecutor who has issued or approved the order. If the superior prosecutor does not grant the appeal it shall be brought to the court.
§ 3. A person or institution which submitted a notice of offence and who has not been notified within 6 weeks about the institution or refusal to institute the investigation or inquiry shall have a right to bring an interlocutory appeal to the superior state prosecutor or one authorised to supervise the agency to which the notice has been submitted.
Article 307. § 1. If necessary, it may be demanded that the data contained in the notice of the offence committed shall be completed within a specified time-limit, or a verification of the facts in the matter may be ordered. In that case the order instituting the investigation or inquiry, or refusing the institution should be issued within 30 days of the day on which the notice was received.
§ 2. In the verifying proceedings no evidence from an expert opinion or actions requiring records are undertaken, except for taking an oral notice of the offence or a motion for prosecution and the action specified in § 3.
§ 3. The data contained in the notice of offence may also be completed by examining the notifying person in the capacity of a witness.
§ 4. When actions referred to in § 3 are needed, the Police notifies the state prosecutor about undertaking the same.
§ 5. Provision of § 2 shall apply accordingly, in the event that a prosecution agency undertakes the verification of their own information leading them to suppose that an offence has been committed.
Article 308. § 1. Within the limits necessary to secure evidence of the offence against loss, distortion or destruction, the Police in cases not amenable to delay, may always carry out the necessary inquiries. This can be done even before the issuance of the order on the institution of the investigation or inquiry and they can in particular inspect, if necessary, with the participation of experts, conduct searches and effect the other action set forth in Article 74 § 2 subsection (1) with respect to the suspect, and undertake all other necessary actions, including taking blood and excretory samples for tests. Upon completing such activities in cases in which investigation is mandatory, the person conducting the inquiry shall refer the case to the state prosecutor without delay.
§ 2. In cases not amenable to delay, and particularly if a delay might result in the effacing traces or evidence of an offence, a person suspected of committing the offence may be examined as a suspect prior to the issuance of an order on the presenting charges, if there are grounds for the issuance of such an order. The examination shall begin by informing the suspect of the contents of charge.
§ 3. In cases specified in § 2 the state prosecutor, shall not later than 5 days from the day of the examination, issue an order on the presentation of charges, or by refusing its issuance, shall discontinue the proceedings with respect to the person examined.
§ 4. The actions referred to in § § 1 and 2 may only be conducted within 5 days of the first action.
§ 5. In the cases specified in § 1 and 2 the duration of the investigation or inquiry is calculated from the day of the first action.
Chapter 35
Conduct of investigation and inquiry
Article 309. § 1. An investigation shall be conducted in cases:
1) of crimes
2) of misdemeanours specified in Articles 152 through 154, Article 154 § 1, Article 164 § 1, Article 173 § 1, Article 174 § 1, Article 189 § 2, Article 207 § 3, Article 233 § 1 and 4, Articles 246, 247, 249, 250, 254 § 2, Article 258 § 3, and in Article 265 § 2 of the Penal Code.
3) of other misdemeanours if the jurisdiction is vested in the Voivodship Court,
4) if the suspect is an official of the Police, Office of State Protection, Border Guards or financial inquiry agencies, or
5) of misdemeanours not listed in subsections 2 through 4 if the state prosecutor so decides by reason of the significance or complexity of the case.
§ 2. An investigation should be completed within three months.
§ 3. In justified cases the period of the investigation may be extended by a state prosecutor superior for a further specified time-limit but not exceeding one year. In particularly justifiable cases the Attorney General may extend the period of investigation for a further prescribed period.
Article 310. § 1. In cases where investigation is not mandatory, an inquiry is conducted.
§ 2. An inquiry should be completed within one month. The state prosecutor who supervises the inquiry may extend this period for up to 3 months.
§ 3. If the inquiry is not concluded by the end of the three-month period the files of the case shall be referred to the state prosecutor supervising the inquiry who may either extend its duration for a prescribed period, not exceeding 3 more months, or take over the inquiry for investigation.
Article 311. § 1. The investigation shall be conducted by the state prosecutor.
§ 2. The Police shall conduct the investigation unless it is being conducted by the state prosecutor.
§ 3. The state prosecutor may delegate to the Police:
1) to carry out the investigation or inquiry that he conducts, in whole or to some limited extent, or
2) to discharge the particular investigative actions.
This provision does not apply to the case specified in Article 309 § 1 subsection 4.
§ 4. The delegating of duties set forth in § 3 may not include actions which require an order to be issued, nor any actions connected with presenting charges, amendment of an order on presenting charges or concluding the investigation or inquiry; Article 308 § § 2 and 3 may, however, apply.
§ 5. The agency of the Police which conducts the mandated actions of the investigation or inquiry, may conduct other actions which arise in connection with conducting the mandated actions, save for actions specified in § 4.
Article 312. The same procedural rights as the Police shall also be the province of:
1) the units of the Border Guards, Office of State Protection and agencies of financial control in their respective fields of competence.
2) other agencies set forth in special regulations.
Article 313. § 1. If the data exists at the time of the institution of an investigation or inquiry or is collected during their course, and contains grounds sufficient for suspicion that an act has been committed by a specified person, an order on presenting charges shall be issued and announced without delay to the suspect, who shall then be examined.
§ 2. An order on presenting charges shall specify the identity of the suspect, detailed data on the act imputed to him and the legal classification thereof.
§ 3. The suspect may request, before he is given notice of the date on which he can review the files of the preparatory proceedings, that he should be given an oral presentation of the grounds for charges, and that these reasons should be prepared in writing. The suspect should be instructed of his right to make such a request and the statement of reasons shall be served upon the suspect and a counsel retained by him within fourteen days.
§ 4. The statement of reasons for such an order should in particular, indicate what facts and evidence were adopted as the grounds for the charges.
Article 314. If during preparatory proceedings it transpires that the accused should be additionally charged with an act not included in a previous order on the presentation of charges, or an act essentially different in nature or form from the act theretofore imputed to him, or that the imputed act should be classified under a more severe provision, a new appropriate order shall be issued and promptly communicated to the suspect, who shall then be examined. The provisions of Article 313 § § 3 and 4 shall apply accordingly.
Article 315. § 1. The suspect and his defence counsel as well as the injured person and his attorney may submit motions to cause certain actions to be performed within the framework of investigation or inquiry.
§ 2. The party which submitted the motion, his counsels and attorneys may not be refused admission to participate in the action if they so demand. The provision of the second sentence of Article 318 shall apply.
Article 316. § 1. If the investigative or inquiry actions cannot be subsequently repeated at the trial, the suspect, the injured person and their legal representatives, as well as the defence counsel and the attorney of the injured person, if so appointed, should be admitted to participate in the action, unless there is a danger of loss or distortion of evidence in case of delay.
§ 2. The appearance of a suspect deprived of liberty shall not be procured, if a delay were to lead to a danger of loss or distortion of evidence.
§ 3. If there is a danger that the suspect cannot be heard at the hearing, a party or the state prosecutor or other agency conducting proceedings, may submit a motion demanding that the suspect be heard by the court.
Article 317. § 1. The parties, and a defence counsel and an attorney if such have been appointed in the case, shall be admitted on request to participate in other investigative or inquiry actions.
§ 2. In a particularly justifiable case, the state prosecutor may, by means of an order, deny such a request if the interests of the investigation or inquiry so require, or refuse to procure the appearance of a suspect deprived of liberty if it would involve serious difficulties.
Article 318. If evidence based on an opinion issued by experts, a scientific institute, or a specialised establishment is admitted, the suspect and his defence counsel, and the injured and his attorney shall be served with the order on the admission of this evidence and permitted to participate in the examination of experts and to acquaint themselves with the opinion, if one has been prepared in writing. The appearance of a suspect deprived of liberty shall not be procured, if this were to involve serious difficulties.
Article 319. § 1 The inquiry may be limited to finding whether there are sufficient grounds to bring an indictment or to conclude proceedings otherwise. However, the actions set forth in Articles 313, 314 and Article 321 should be conducted, the suspect and the injured should be examined, and actions which cannot be repeat ed should be conducted and recorded. The recording of other actions might be abandoned, with official notes prepared instead.
§ 2. A party may motion that records should be made of any of evidentiary actions.
Article 320. § 1 If it is relevant in connection with a respective motion to the court, the state prosecutor may, on his own initiative, or with the consent of parties, refer the case to a trustworthy institution or person in order to conduct a mediation procedure between the suspect and the injured.
§ 2. Having conducted the mediation proceedings, a trustworthy institution or person shall prepare a report on its course and results, which the state prosecutor shall take into account when deciding on submission to the court of the respective motion referred to in § 1.
§ 3. The Minister of Justice shall set forth, by ordinance, conditions to be met by institutions and persons authorized to conduct mediation, the scope and terms of giving them access to the case files, as well as the principles and procedures for preparing reports on the course and results of the mediation proceedings.
Chapter 36
Conclusion of the investigation or inquiry
Article 321. § 1. If there are grounds to conclude the investigation or inquiry, the person conducting the proceedings notifies the suspect and the defence counsel of the date of final examination of the materials of the proceedings, advising them of their right to examine files at an earlier suitable date, set forth by the agency conducting the trial.
§ 2. The date for the suspect to inspect the materials of the proceedings should be set allowing at least 7 days between the day of the service of the notice to the suspect and his defence counsel and the date of inspection.
§ 3. The defence counsel shall be permitted to participate in the inspection of the files by the suspect. In the cases specified in Article 79, the participation of the defence counsel shall be mandatory.
§ 4. Failure of the suspect to appear or -- except for cases specified in Article 79 -- his defence counsel, shall not stop further proceedings.
§ 5. Parties may, within three days of the suspect acquainting himself with the materials of the case, submit motions to supplement the proceedings.
§ 6. If there is no need to supplement the investigation or inquiry, an order shall be issued on concluding the same; this shall be announced or its contents communicated to the parties, their attorneys and defence counsels.
Article 322. § 1. If the proceedings have failed to disclose grounds sufficient to justify the preparation of an indictment, and the conditions specified in Article 324 do not occur, the preparatory proceedings shall be discontinued, without the necessity of inspecting the materials of the proceedings and their conclusion.
§ 2. An order discontinuing the proceedings shall contain, apart from the data specified in Article 94, a detailed description of the act and its legal classification and an indication of the causes of discontinuance.
§ 3. If the proceedings are discontinued after the issuance of an order on presentation of charges or examination of a person as a suspect, the order of discontinuance should also include the name and surname of the suspect and, when necessary, other data regarding such person.
Article 323. § 1. If the proceedings are discontinued the state prosecutor shall issue an order concerning material evidence, as required by Articles 230 through 233.
§ 2. The order described in § 1 shall be subject to interlocutory appeal by the suspect, by the injured person and by any other person from whom such objects have been taken or who has submitted a claim with respect to them.
§ 3. After the order on discontinuance becomes valid and final the state prosecutor, in the event of the occurrence of the grounds specified in Article 99 § 1 or Article 100 of the Penal Code, shall move to the court, requesting the imposition, as a precautionary measure, of forfeiture, as specified in Article 39 subsection 4 of the Penal Code.
Article 324. If it is found that the suspect committed an act in the state of non-accountability, and there are grounds to apply the precautionary measures, the state prosecutor having concluded the investigation or inquiry, may move to the court for the discontinuance of proceedings and application of precautionary measures. Provision of Article 321 shall apply accordingly.
Article 325. An order on the suspending of a proceeding which has not been issued by the state prosecutor, should be ratified by him in writing.
Chapter 37
The supervision of the state prosecutor of preparatory proceedings
Article 326. § 1. The state prosecutor shall supervise the preparatory proceedings, to the extent that he is not personally conducting the same, and shall also supervise the verification proceedings conducted pursuant to Article 307.
§ 2. The state prosecutor shall be obligated to ensure that the entire proceedings which he supervises are conducted correctly and efficiently.
§ 3. In particular, the state prosecutor may, by virtue of his supervisory function:
1) inform himself of the intentions of the person conducting the preparatory proceedings, indicate the directions of the proceedings, and issue rulings in this matter,
2) request that materials collected in the course of preparatory proceedings be presented to him,
3) participate in actions carried out by the person conducting the proceedings, carry them out in person, or personally take over and proceed with the case,
4) issue orders, rulings or instructions, and amend and reverse orders and rulings issued by the person conducting the preparatory proceedings.
§ 4. In the event that an agency other than the state prosecutor does not follow an order, ruling or instruction issued by the state prosecutor supervising the proceedings, on the motion of the latter, a superior of such an official shall institute official proceedings whose results shall be communicated to the state prosecutor.
Article 327. § 1. A discontinued preparatory proceedings may at any time be reinstated pursuant to an order issued by the state prosecutor, unless such proceedings would thus be conducted against a person who was examined as a suspect in the previous proceedings. This provision shall apply accordingly to cases where instituting an investigation or inquiry was refused.
§ 2. A validly discontinued preparatory proceedings may be re-opened against a person previously examined as a suspect, pursuant to an order issued by the state prosecutor senior to the state prosecutor who has issued or ratified the order on discontinuanc e, but only in the event that a discovery has been made of circumstances of vital significance, that were unknown to the previous proceedings. Limits applicable to a preliminary detention period which are provided in law shall be then applied to the aggregated time for applying this measure.
§ 3. Before issuing an order reinstating or re-opening the preparatory proceedings, the state prosecutor may either personally undertake, or entrust to the Police the taking of evidentiary action necessary in connection with verifying the circumstances serving as the basis for the issuance of such an order.
§ 4. After bringing an indictment the court shall discontinue if it finds that the preparatory proceedings have been re-opened despite a lack of grounds for so doing.
Article 328. § 1. The Attorney-General may reverse an order issued validly, discontinuing preparatory proceedings with respect to a person examined as a suspect, if he finds that the discontinuance of such proceedings was groundless. This provision shall not apply the cases where the court upheld the order on discontinuance.
§ 2. After six months have elapsed from the date on which the order on discontinuance has become valid and final, the Attorney-General may reverse or amend such an order or the statement of reasons therefor only in favour of the suspect.
Chapter 38
Court actions in preparatory proceedings
Article 329. § 1. Actions during the preparatory proceedings provided for in law shall be conducted in session by the court, having jurisdiction to examine the case in the first instance, unless otherwise provided by law.
§ 2. The court conducts the action in a panel consisting of a single judge, and also when it considers the interlocutory appeals regarding actions in preparatory proceedings unless otherwise provided by law.
Article 330. § 1. Revoking an order on discontinuance of preparatory proceedings or on refusal to institute it, the court shall indicate the reasons thereof, and, when necessary, also the circumstances which should be clarified or actions which should be conducted. These indications shall be binding on the state prosecutor.
§ 2. If the state prosecutor still does not find grounds to bring an indictment, he again issues an order on the discontinuance of proceedings or a refusal to institute it. This order is subject to interlocutory appeal only to a superior state prosecutor. In the event of upholding the order appealed against, the injured party which invoked the rights provided for in Article 306 § § 1 and 2, may bring an indictment set forth in Article 55 § 1 and he should be so instructed of this right.
§ 3. In the event that the injured party has brought an indictment, the president of the court transmits a copy of it to the state prosecutor summoning him, to deliver the files of the preparatory proceedings within 14 days.
Chapter 39
The indictment
Article 331. § 1. Within 14 days of the conclusion of the investigation or inquiry, or receiving an indictment prepared in summary proceedings, the state prosecutor shall file an indictment to the court or shall issue an order on the discontinuance or suspension of the preparatory proceedings, or on a supplementary investigation or inquiry.
§ 2. If the accused has been in preliminary detention, the time-limit for the actions listed in § 1 shall be 7 days.
Article 332. § 1. The indictment should contain:
1) the name and surname of the accused and other personal data together with information as to whether a precautionary measure has been applied,
2) a detailed description of the act imputed to the accused with an indication of the time, place, manner and circumstances relating to the commission thereof as well as its consequences, and particularly of the value of the resulting damage,
3) an indication that the act has been committed under the conditions specified in Article 64 of the Penal Code,
4) an indication of the criminal statute under which the imputed acts is classifiable,
5) an indication of the court having jurisdiction over the case and the mode of proceedings to be followed, and
6) a statement of reasons.
§ 2. The statement of reason should include all the facts and evidence upon which the accusation is founded, and, if necessary, should indicate the legal grounds for the charge and describe the circumstances relied on by the accused in his defence.
Article 333. § 1. The indictment shall also contain:
1) a list of the persons whom the prosecutor requests to be summoned,
2) a list of such other evidence which the prosecutor will seek to obtain at the first-instance hearing, and
§ 2. In the list of evidence to be sought the state prosecutor may request that a summons be waived, and that instead testimonies given by witnesses residing abroad be read at the trial; this shall also apply to witnesses summoned solely to confirm facts not contested by the accused in his explanation, if these facts are not of such significance as to make a direct examination of these witnesses indispensable at the trial. This provision shall not pertain to the persons listed in Article 182.
§ 3. A list of the injured persons hitherto disclosed, with their addresses, as well as addresses of persons referred to in § 1 subsection 1, shall be attached to the indictment, for the court's information.
§ 4. The state prosecutor may also attach to the indictment a motion to obligate an entity specified in Article 52 of the Penal Code, to return to the State Treasury material profits gained, and a notice to that entity about the date of hearing; the motion should contain reasons.
Article 334. § 1. The files of the preparatory proceedings and other appendices to the case should be transmitted to the court together with the indictment with one copy thereof for each of the accused.
§ 2. The public prosecutor shall notify the accused and the injured person, if disclosed, as well as the person or institution that submitted the notice of an offence, that the indictment has been transmitted to the court. When informing the injured person of this fact, the state prosecutor shall notify him of its rights to pursue pecuniary claims, and, when necessary, also of his right to enter a statement assuming the role of a subsidiary prosecutor.
Article 335. § 1. The state prosecutor may, with the consent of the accused, attach to the indictment a motion to convict the accused for a contravention imputed to him, subject to a penalty not exceeding 5 years deprivation of liberty, without conducting a trial and impose a penalty with an extraordinary mitigation, or decide on a penal measure specified in Article 39 subsections 1 through 3 and 5 through 8 of the Penal Code, or waive the imposition of a penalty or adopt a conditional stay of execution of the penalty -- if circumstances surrounding the commission of the misdemeanour do not raise doubts, and the attitude of the accused indicates that the objectives of the proceedings will be achieved despite of lack of a trial.
§ 2. If conditions for filing the motion referred to in § 1 occur, and in light of the evidence collected the explanation of the accused does not raise doubts, conducting any other evidentiary actions in preparatory proceedings may be abandoned.
Article 336. § 1. If the premise is met which justify a conditional discontinuance of proceedings, the state prosecutor may prepare and file with the court a motion to this effect, instead of an indictment.
§ 2. Provisions of Article 332 subsections 1, 2, 4 and 5 shall apply accordingly. The reasons for the motion may be limited to indicating evidence which confirms the guilt of the accused beyond any doubt, as well as specifying the circumstances supporting the conditional discontinuance.
§ 3. The state prosecutor may indicate suggested probation period, obligations to imposed on the accused and motion regarding supervision.
§ 4. Provision of Article 334 shall apply accordingly.
§ 5. The relevant provisions regarding an indictment contained in Chapter 40 shall apply to the motion of conditional discontinuance of proceedings.
Part VIII
PROCEEDINGS BEFORE THE COURT OF THE FIRST INSTANCE
Chapter 40
Preliminary verification of charging
Article 337. § 1. If the indictment does not meet the formal requirements set forth in Articles 119, 332 and 333, and if the requirements set forth in Article 334 are not met, the president of the court shall remand the same to the state prosecutor in order that the deficiencies may be corrected within a seven-day period.
§ 2. The state prosecutor shall have the right to bring an interlocutory appeal against the order referred to in § 1 before the court having jurisdiction over the case
§ 3. The public prosecutor who has not brought an interlocutory appeal shall be under obligation to file a corrected or supplemented bill of indictment within the time-limit set forth in § 1.
Article 338. § 1. If the indictment complies with formal requirements, the president of the court orders a copy of the indictment to be served on the accused, summoning him to file evidentiary motions within a seven-day period.
§ 2. The accused shall have the right, within 7 days from the service of the indictment on him, to file a written response to the indictment, of which right he should be instructed.
§ 3. If there is a danger of revealing a state secret, the indictment shall be served on the accused without the reasons. The reasons shall, however, be made available subject to conditions set forth by the president of the court or the court.
Article 339. § 1. The president of the court shall commit the case to session if:
1) the state prosecutor has submitted a motion for a decision to apply precautionary measures,
2) there is a need to consider a conditional discontinuance of the proceedings, or
3) the state prosecutor filed the motion referred to in Article 335.
§ 2. If the indictment has been brought by an subsidiary prosecutor, the president of the court shall commit the case to the session, in order to consider whether there is a need to issue a decision referred to in § 3 subsection 2, and also in Article 56 § 1.
§ 3. The president of the court shall commit the case to session also when there is a need to apply another decision outside the scope of his own authority and, in particular:
1) if the proceedings are to be discontinued pursuant to Article 17 § 1 subsections 2 through 11,
2) if the proceedings are to be discontinued by reason of a manifest absence of any factual basis for charge,
3) if an order is to be issued to the effect that the court lacks jurisdiction over the case, or altering the mode of proceedings indicated in the indictment,
4) if the case is to be remanded to the state prosecutor in order to correct deficiencies of vital essential significance in the preparatory proceedings,
5) if an order is to be issued on a conditional suspension of the proceedings,
6) if an order is to be issued on a preliminary detention or other coercive measure, or
7) if a penal order is to be issued.
§ 4. The president of the court shall also commit the case to session when there is a need to consider a possibility to transfer the case to mediation proceedings. The provision of Article 320 shall apply accordingly.
§ 5. Unless otherwise provided by law, the participation of the state prosecutor in sessions specified in § 1, 3 and 4 shall be mandatory. Other parties, defence counsels and attorneys may participate if they appear, although notifying them is not mandatory unless otherwise provided by law.
Article 340. § 1. As regards the discontinuance of the proceedings, Article 322 and Article 323 § § 1 and 2 shall apply accordingly.
§ 2. In the event that there are grounds specified in Article 99 of the Penal Code, the court while discontinuing proceedings or hearing a motion from the state prosecutor as specified in Article 323 § 3, shall decide on the forfeiture referred to in Article 39 subsection 4 of the Penal Code.
§ 3. A person having a claim to property or objects whose forfeiture has been decided as a precautionary measure, may pursue his claim only under civil proceedings.
Article 341. § 1. The participation of the accused in the session regarding conditional discontinuance shall be mandatory if the president of the court or the court so decides.
§ 2. If the accused objects to the conditional discontinuance, as well as when the court finds that the conditional discontinuance would be unjustified, commits the case to session. A motion from the state prosecutor for conditional discontinuance shall supersede the indictment. Within 7 days the state prosecutor shall conduct the actions specified in Article 333 § 1 through 3.
§ 3. If the court finds it purposeful because of the possibility of reaching an agreement between the accused and the injured on the matter of redressing damage or compensation, the court may adjourn the session and designate a suitable time-limit for the parties. On a motion from the accused and the injured the court shall announce a suitable break or adjourn the session.
§ 4. Upon deciding on a conditional discontinuance, the court shall take into account the results of the agreement between the accused and the injured on the matters specified in § 3.
Article 342. § 1. An order of conditional discontinuance should specifically describe the act committed by the accused, indicate the provision of the criminal statute under which this act falls, and establish the probation period.
§ 2. In the order the court shall also determine the obligations impose on the accused, and the method and the time-limit effecting thereof, and also if the court finds it purposeful, the probation by a probation officer, a trustworthy person, institution or a community organisation.
§ 3. The order should include a decision, if necessary, on the matter of material evidence.
The court shall accordingly apply Article 230 § § 2 and 3 and Articles 231 through 233, taking into account the requirement to preserve evidence in the event that the proceedings should be reopened.
§ 4. The order on conditional discontinuance shall be subject to an interlocutory appeal by the state prosecutor, the injured and the accused.
§ 5. The orders specified in § 3 shall be subject to an interlocutory appeal by persons specified in Article 323 § 2.
Article 343. § 1. In the event of granting the motion referred to in Article 335, the evidentiary proceedings are not conducted. The provision of Article 394 shall, however, apply accordingly.
§ 2. The accused and the injured may participate in the session. The participation in the session shall be mandatory if the president of the court or the court so decides.
§ 3. If Article 46 of the Penal Code does not apply, the court may make the granting of the motion conditional upon redressing the damage in part or in total, or obligating the accused to follow an appropriate life style. The provision of § 341 § 3 shall apply accordingly.
§ 4. Upon granting the motion, the court shall convict the accused by a sentence.
§ 5. If the court finds no grounds for granting the motion, it shall direct the case to be heard at a trial according to general rules.
Article 344. If the accused is under preliminary detention the court shall decide ex officio on maintaining, amending or revoking this measure. When necessary the court may also decide upon other preventive measures.
Article 345. § 1. The court shall remand the case to the state prosecutor if the files of the case indicate the essential deficiencies of the proceedings, especially the need to search for evidence, and where conducting necessary actions by the court would entail substantial hardship.
§ 2. In transmitting the case to the state prosecutor, the court shall indicate to what ends the completion should be directed and, when necessary, indicate appropriate actions which should be undertaken.
§ 3. The order referred to in § 1 shall be subject to interlocutory appeal by the parties.
Article 346. Upon completing the preparatory proceedings, the state prosecutor shall file a new bill of indictment or express his support for the previous one, or return the files to the court with a motion for the conditional discontinuance of proceedings, or discontinue the proceedings.
Article 347. In further proceedings, the court shall not be bound either by the factual or by the legal evaluations which have served as a basis for the orders and rulings issued at the session.