Criminal procedure: Third reform, dubious results
On 5 October 2019, the third “fundamental” reform of Polish criminal procedure in the last four years came into force. It is supposed to be faster, fairer and less bureaucratic. We heard the same claims for the changes coming into force on 1 July 2015 and then on 15 April 2016. But court cases have not speeded up. On the contrary, there are more complaints about delays and thus payments from the State Treasury to victims of dilatory proceedings.
The amendments already in force are varied. Some of them have been long awaited, others are completely new, and some are cosmetic. However, we should start with the following conclusion: for lawyers, the new rules will be applied to cases already underway, changing the rules of the game. This is another example showing that stability of the law has not been an overriding value in the Polish legal system for a long time.
Some of the changes are meant to bring criminal procedure into the reality of the 21st century. Email is to be a permanent element of judicial and prosecutorial communications. Therefore, under threat of a request for supplementation, it will be necessary to provide the prosecutor and the court with a telephone number, fax number and email address, or to declare that you do not have them. It will be possible to deliver information on how the case has been concluded to the aggrieved party by email, as well as a legally binding decision closing the case. Importantly, experts will also be able to receive documents this way, which may speed up the preparation of opinions. Another novelty is the equal treatment of Saturdays and public holidays, just as in administrative and civil proceedings. Acceleration of cases is also to be achieved by limiting directness in court proceedings. Actions are to be repeated in court only when genuinely necessary (such as hearing witnesses). This will avoid activities directed at empty court rooms (announcing oral motives for a judgment or a decision), reading minutes from preliminary proceedings (provisions amended on the occasion of each “reform”), or listing documents the court has found to be disclosed.
Changes to appeals
A lot of new features and surprises await the lawyer who has to appeal against a judgment. In the place of a defendant’s lawyer about to hear the verdict, we would worry not only about the fate of the client, but also whether, in the event of an unfavourable decision, it will be possible to obtain a clear and logical justification for the judgment, as well as whether it will be possible to appeal it effectively. Why? The amendment introduces a justification for judgments on an official form, not known yet to anybody. Additionally, there are new grounds for appeal (e.g. “infringements of substantive law not affecting the judgment”), new rules for appealing against the justification of the judgment itself, and changes to the evidentiary hearing before the appellate court.
Stronger position of public prosecutor
The new provisions do not change much in the conduct of pre-trial proceedings, except perhaps for the limitation of the number of victims’ hearings. However, this does not mean that the situation of the prosecutor will not change. First, the prosecutor will be able to suspend the execution of the court’s decision on bail. The prosecutor’s statement that he does not agree to the defendant’s release on bail will remain in force until the appellate court issues a decision. Second, the new provisions will allow prosecutors to block “subsidiary” indictments (i.e. by a private complainant when the public prosecutor does not pursue the case). If the prosecutor repeatedly dismisses or refuses to pursue the case, the private complainant must appeal to a higher-ranking prosecutor and then wait (the law does not say how long) for his or her position in the matter, before filing a private indictment with the court. Third, the amendment introduces the rule that court proceedings are to be discontinued when a subsidiary prosecutor fails to appear at the trial without justification (e.g. gets stuck in a traffic jam). Fourth, the number of auxiliary prosecutors present at the trial along with the main prosecutor can be limited.
Evidence preclusion is a new element in criminal procedure. We can debate the effectiveness of this institution. Despite the existing solutions, the Parliament has decided to make it possible to dismiss an application to admit evidence filed after a specified deadline, of which the party filing the motion was notified. At the same time, the provisions indicate that it will not be possible to dismiss evidence if, among other things, the circumstance is of great relevance for determining whether a prohibited act was committed, whether it constitutes a criminal offence, and if so, which one. Since the vast majority of requests for admission of evidence in criminal proceedings are directly or indirectly linked with such a finding, a double risk exists. The provision will either be a dead letter, or worse, will be abused by law enforcement authorities to limit the defence’s ability to present evidence.
What next with criminal procedure?
Time will tell how much the introduced changes will improve criminal proceedings. Today there are already doubts in this regard. The amendment does not limit the jurisdiction of the courts. It will not relieve them from handling small, uncomplicated cases. It will not solve the problem of lack of resources for work in the judiciary or the level of assistants’, assessors’ and administrative employees’ salaries. It will not create any backup for prosecutors and courts in the form of professional experts. It will not change the way work is organised or the system of setting dates for hearings, which today can be held several months apart, contrary to the principle of concentration of evidence. And these are the main reasons for inefficiency of the judicial system. Let’s hope that the cure for these ills will not be yet another amendment.
Artur Pietryka, adwokat, Maria Kozłowska, adwokat trainee, Business Crime practice, Wardyński & Partners