Damages for victims of criminal offences can be sought not only from the perpetrator


The possibility of seeking damages from a person who has knowingly benefited from a wrong done to another may offer the victim the only practical chance of obtaining even partial recompense. Often the immediate wrongdoer is insolvent, while someone else gains from the unlawful act.

For a person who has suffered injury from a tortious act (an act prohibited by law), Art. 422 of the Polish Civil Code can be vital. Under that provision, not only the person who immediately caused an injury can be held liable for a tortious act, but also a person who has knowingly benefitted from the tortious act. This is particularly relevant in cases where the immediate perpetrator cooperated with other persons who cannot be proved to be accomplices or accessories in commission of the act, but can be shown to have benefitted from the act.

Currently, persons in Poland injured by an unlawful act often try to obtain damages within criminal proceedings. This can occur in the case of civil torts which also constitute a criminal offence (e.g. theft, fraud, evading creditors, assisting in concealing unlawfully obtained funds, etc). The legal basis for such claims by injured parties is Art. 46 §1 of the Criminal Code.

But when following the criminal-law path to pursuing claims for damages, it must be borne in mind that a ruling against the accused ordering him to redress the injury to the victim will be possible only in connection with conviction of the same person for a criminal offence. In the great majority of criminal cases, the accused can be convicted only he is proved to have acted intentionally, or at least recklessly (i.e. the accused at least foresaw the real possibility of commission of an offence and acknowledged the existence of criminal consequences of his behaviour). Also, the operative rules in criminal proceedings include a presumption of innocence and resolution of all doubts in favour of the accused. Thus it can be hard to prove that someone has committed a criminal offence, particularly someone who was not the immediate perpetrator of the offence that caused the injury. And before a legally final criminal judgment is reached finding that the given person cannot be ordered to redress the injury under Criminal Code Art. 46 §1, the limitations period on pursuing civil claims against that person may have expired.

For this reason, the injured party should always be aware of the possibility of asserting a civil claim against persons when it may be hard to prove that they were accomplices or accessories or incited commission of a criminal offence, but it can be proved that they knowingly benefitted from a tortious act. This possibility is offered by Civil Code Art. 422.

It should be stressed that such a person may be held liable for damages in a civil trial even when the criminal court has finally acquitted the same person of any punishable form of involvement in commission of the offence. A criminal acquittal is not binding on a civil court. Art. 11 of the Civil Procedure Code provides that the civil court is bound only by a criminal conviction, and does not apply in the case of an acquittal.

It should also be added that, contrary to the views held by some, the civil court can find that the perpetrator acted intentionally even when the criminal court previously found that the perpetrator acted unintentionally.

Thus, so long as the claim for damages for tort has not become time-barred during the course of the criminal proceeding, the injured party should consider a claim for damages against the perpetrator as well as affiliated persons—even if some or all of them have avoided conviction for a criminal offence causing the injury.

It should also be pointed out that in a civil trial, the plaintiff does not have to prove that the defendant somehow assisted the perpetrator of the wrongful act or inspired the perpetrator to act unlawfully—but only that the defendant knowingly benefitted from the injury. A person knowingly benefitting from someone else’s injury is held liable for his own action, which will not necessarily bear any causal connection with the injury caused to the victim (as the Supreme Court of Poland ruled it the judgment of 22 March 2019, case no. IV CSK 443/17).

“Knowing” benefit from an injury to another need not be culpable (it does not have to result from any incriminating or merely reproachable conduct). It simply refers to “knowledge” of benefit from the injury to another person. But beware! It does not suffice to show that the beneficiary would have learned of the unlawful source of their gain if they had applied due diligence. Affirmative knowledge is required.

However, in a civil trail the existence of such knowledge may be proved through any available evidence, as it is an element of the state of facts (as the Supreme Court held in the judgment cited above). There is essentially nothing preventing the plaintiff from using evidence which the prosecution overlooked or for whatever reason did not present in the criminal case. It is also permissible to apply factual presumptions (Civil Procedure Code Art. 231). Thus, for example, if it is proved that goods were received for resale in a manner departing from the accepted rules for trade documentation (e.g. without official receipts, or without logging the goods into the purchasing system), and then the goods were resold at prices significantly below the prevailing market price, a factual presumption can be applied to conclude that the party receiving the goods for resale was aware that he was benefitting from the trade in stolen goods.

What amount of damages can be sought against a person who has knowingly benefitted from an injury to another person? It should be recognised that the limit here is the amount of benefit actually obtained by the defendant. But a person knowingly benefitting from a wrongful act is often a “trustee” or “custodian” of property unlawfully obtained by the immediate perpetrator of the wrong. Once it is shown that the defendant knowingly received property derived from a prohibited act, the defendant will bear the burden of proving that the entirety of the property received does not constitute the defendant’s benefit.

Thus pursuing damages in a civil proceeding against a person who has knowingly benefitted from injury to another should be considered a method of optimising the available legal measures for pursuing claims for damages for unlawful actions. Sometimes it offers the last chance for the injured party after other methods of pursuing tort claims fail.

Adam Studziński, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners