Criminal Procedure Code of the Republic of Poland (1997, as amended 2003) (excerpts related to Fair Trial (Right to a)) (English)
Code of Criminal Procedure
Act of 6 June 1997
(excerpts)
Article 5.
§ 1. The accused shall be presumed innocent until his guilt has been proven
under the provisions of this Code.
§ 2. Unresolvable doubts shall not be resolved to the prejudice of the accused.
Article 6.
The accused shall have the right to conduct his own defence or to avail himself
of the aid of defence counsel; the accused should be advised of this right.
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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 , 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 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.
Chapter 9
Defence counsel and attorneys
Article 82.
Only a person entitled to defend cases pursuant to the System of the Bar Act
may be engaged as defence counsel.
Article 83.
§ 1. The accused himself shall retain the defence counsel; or, before an
accused deprived of liberty retains a defence counsel, one may be retained by another
person of which the accused shall be promptly informed.
§ 2. Power of attorney authorising the defence counsel may be given in writing or by a
declaration filed with the record of the agency conducting the criminal proceedings.
Article 84.
§ 1. The retention of defence counsel or the appointment of counsel shall
relate to the entire course of proceedings, including all actions taken after the decision
has come into force, unless such a retention or appointment was restricted.
§ 2. When defence counsel is appointed , he shall be under the obligation to act in the
proceedings until such time as they are validly concluded. If, however, such action must
be taken outside the place of business or personal residence of the defence counsel appointed ,then the president of the court before which such action is to be taken, and, in
preparatory proceedings, the President of the Regional Court for the place in which the
actions are to be taken, shall appoint on the motion of the acting defence counsel, another
defence counsel from amongst the local bar.
§ 3. A defence counsel appointed in the cassation proceedings or in proceedings for
instituting trial, shall prepare and sign the application for cassation or for instituting trial,
or inform the court in writing that he had not found grounds for cassation or for
submitting an application for instituting a trial.
Article 85.
Defence counsel may defend more than one accused if their respective
interests do not conflict.
Article 86.
§ 1. Defence counsel may act in the proceedings only in furtherance of the
interests of the accused.
§ 2. The participation of defence counsel in the proceedings does not preclude the
personal participation of the accused therein.
Article 87.
§ 1. A party other than the accused may retain an attorney.
§ 2. A person not being a party to the proceedings may retain an attorney if the interests
of the person so require.
§ 3. The court, and the state prosecutor in the preparatory proceedings, may refuse to
allow the attorney referred to in § 2 to participate in the proceedings if he deems that the
interests of the person not being a party to the proceedings do not require this.
Article 88.
§ 1. Articles 77, 78, 82-84 and 86 § 2 shall be accordingly applied to the
attorney of the injured person.
§ 2. The attorney of a public, local government or community institution may also be the
legal advisor or another employee of such an institution or of the agency in control
thereof.
§ 3. In matters regarding a claim for property damage, the attorney of an artificial person
other than those referred to in § 2, an organisational unit not having legal personality, or
of a natural person pursuing an economic activity, may also be its legal counsel.
Article 89.
Matters pertaining to the attorney of the injured person, and not regulated by
the provision of this Code, shall accordingly be resolved by the appropriate application of
provisions governing civil procedure.
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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.
§ 1. 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 custody 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 by the court before which the proceedings are pending; or
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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.
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