Criminal law amendments of July 2015: Evolution or revolution?

On 1 July 2015, lawyers and parties to criminal proceedings in Poland entered a new reality. But will adversarial criminal trials truly unburden the courts and speed up the process?

Two recent acts have significantly altered the model for criminal proceedings in Poland and the approach to punishment of offenders: the Act of 27 September 2013 Amending the Criminal Procedure Code and Certain Other Acts and the Act of 20 February 2015 Amending the Criminal Code and Certain Other Acts.

A debate was conducted in recent months in the press and serious legal publications on the sense of these amendments and what the legal community had to look forward to after the new rules enter into force. As that date approached, the opposition from those who were worried about the upcoming changes grew louder. Judges from the Supreme Court of Poland as well as prosecutors expressed their opinions.

Significantly, the changes conflict with the fundamental approach to criminal procedure which most Polish lawyers encountered in their training.

The basic issues which the drafters of the amendments decided to take on included:

  • The lengthiness of proceedings—in extreme cases trials had been conducted at ten or more instances as one judgment after another was overturned on appeal
  • Excessive workload and responsibility of judges for the course of the proceedings, particularly in terms of evidence, often resulting in passivity of the parties and distracting the judges from the heart of the case—the criminal responsibility of the perpetrator
  • The huge but difficult to estimate costs of operating a criminal justice system in such an inefficient manner.

As a consequence, the Parliament decided to adopt changes that may appear revolutionary because they mark such a significant departure from the rules that were previously in force.

First, the inquisitorial model has been rejected. Under that model, the judge was responsible for determining the material truth by admitting additional evidence when necessary, including due to the ineptitude or passivity of the parties. Under the newly adopted adversarial model, the parties will be responsible for the course of evidentiary proceedings, forcing them to be active, to prepare a strategy for conducting the case, and in practice to submit carefully considered evidentiary requests and remain vigilant as evidence is admitted.

In preliminary proceedings, the prosecutor’s main task will be collect evidence supporting the allegations in the indictment, which the prosecutor can file without a justification but with organised evidence and an indication of the circumstances that will be alleged. The evidence submitted with the indictment will include only the evidence directly bearing on the grounds for guilt under the charges. This is supposed to limit the quantity of documents submitted to the court and in consequence to unburden the judge.

This model forces all of the participants to show creativity in the arguments they make in support of their positions (gathering and presenting evidence). Many practitioners expect that this will increase the need for detective services and opinions from various types of experts.

The role of defence counsel will also increase in importance. After the investigative proceedings are conducted, but before the trial begins, defence counsel will have to analyse the evidentiary material gathered and presented to the court, and possibly demand that the prosecutor supplement the evidence.

Second, the new regulations in practice provide every accused with the right to demand participation of defence council in the proceeding, while stressing that a defence is a right but not a duty of the accused. This will result in rejection of the strict rules on the presence of the accused during the hearings. Consequently, before the trial begins the accused will be instructed more extensively about his rights and duties, but his absence will not present a barrier to proceeding with the trial as often as it did under the previous rules.

Third, the possibilities for consensual conclusion of criminal proceedings will greatly increase. This will mean that the parties can reach agreement on the final wording of the judgment or order bringing the case to an end. Of particular note, there are expanded options for voluntary submission to punishment without taking evidence (Criminal Procedure Code Art. 387), and a completely new and very interesting institution known as consensual dismissal (Criminal Code Art. 59a), which enables proceedings to be discontinued in certain situations where the perpetrator has redressed the injury and the injured party has requested dismissal.

Finally, there are major changes in appellate procedure. The intention of these changes is primarily to cut the number of judgments that are overturned and remanded for reconsideration. Instead, defective rulings by the court of first instance are to be corrected by the appellate court. The ability to supplement the evidence before the court of second instance is also expanded. Inaction by a party in the proceedings before the court of first instance will deprive the party of the ability to make up for its failure via allegations in the appeal. Thus the regulations provide for a form of preclusion in this respect.

Such a brief overview cannot capture the entire meaning and details of the new rules, but should nonetheless signal the fundamental aim of the changes.

Janusz Tomczak, Business Crime Practice, Wardyński & Partners