Who is the suspect? What are the suspect’s duties? What are the suspect’s rights? What preventive measures can be applied against the suspect?
Who is the suspect?
The suspect is a person against whom a decision to present charges was issued in the course of an inquiry or investigation or who was charged without issuance of such decision in connection with accession to the hearing as a suspect. The latter situation is permitted in the context of an “investigation to the necessary extent” and in the course of an inquiry.
There is a difference between a “suspect” and a “suspected individual,” i.e. an individual alleged to have committed a crime but not yet charged with it. Importantly, a suspected individual is not a party to criminal proceedings.
Once an indictment, an application for surrender to serve a sentence and impose punishments agreed with the accused, or an application for conditional discontinuance of the proceedings is brought to court, the suspect becomes the accused. The suspect is a party to the investigation.
The suspect is not required to prove his innocence or testify against himself.
The accused (or suspect) is presumed innocent until his guilt has been proven and confirmed by a legally final judgment.
Before the first interrogation the suspect receives written instructions about his rights and duties.
What are the suspect’s duties?
In the course of the proceedings the suspect is obliged to submit to:
- External examination of the body and other examinations, provided they do not violate his bodily integrity. In particular, the authorities may take fingerprints and photographs of the suspect and show him to other people for identification.
- Psychological and psychiatric tests as well as physical examinations, provided they do not involve surgery and are performed by an authorised medical practitioner in keeping with medical knowledge and do not endanger the suspect’s health, and the examination is necessary. In particular, the suspect may be required to yield samples of his blood, hair or body secretions, if there is no threat that this will jeopardise his or other people’s health.
- Collection of a buccal smear by a Police officer, if necessary and there is no threat that it will jeopardise the suspect’s or other people’s health.
In addition, the basic duties of a suspect in a criminal case are:
- To appear at every request during the course of criminal proceedings. In case of unjustified failure to appear, the suspect can be detained and brought in by force.
- To indicate an attorney for service in Poland if the suspect normally lives abroad. Otherwise correspondence sent to the last indicated Polish address or, if such address is unknown, deposited in the case file, will be deemed served.
- To inform the authorities of any change of residence or place where the suspect is staying for longer than 7 days, including for reason of imprisonment in another matter. If the suspect does not give the new address, correspondence sent in the course of an inquiry or investigation to the last known address will be deemed served.
What are the suspect’s rights?
The suspect enjoys the following rights in criminal proceedings:
- The right of access to the case file with the consent of the prosecutor. The suspect may make handwritten copies and purchase photocopies and certified copies of documents from the case file, or make photocopies of the case file free of charge.
- The right to give explanations. However, the suspect may, without giving any reason, refuse to answer particular questions or give explanations.
- The right to request a verbal description of the charges before being notified of the date of obtaining access to the investigation file, and the right to request a written justification of the main charges. The justification is served on the suspect and his defence counsel within 14 days.
- The right to counsel. The suspect may have no more than three defence counsel at one time. He must be represented by counsel if he is under 18, deaf, mute or blind, if there are justified doubts concerning the suspect’s ability to comprehend the meaning of his act, whether the suspect’s control of his behaviour when the act was committed was lacking or significantly limited, or whether the suspect’s psychological condition will enable him to participate in the proceeding or defend himself independently and reasonably, or if the court finds that there are other circumstances impeding his defence. The suspect must also be represented by defence counsel if he is accused of a felony in proceedings before the regional court.
- When the suspect can duly prove that he is not able to bear the cost of defence without prejudice to the necessary maintenance of himself and his family, he may file an application for court-appointed counsel with the court with jurisdiction to hear the case.
- The right to request a hearing in the presence of his counsel. However, counsel’s failure to appear does not prevent holding a hearing.
- The right to give testimony in writing during the course of the investigation, but for important reasons the investigator can refuse written testimony.
- If the suspect is not sufficiently fluent in Polish, he has the right to the free assistance of an interpreter and translated copies of decisions concerning presentation, supplementation and modification of the charges, the indictment, and rulings that are appealable or end the proceedings. (With the consent of the accused it may be sufficient to announce the translated ruling ending the proceedings, if the ruling is not appealable.)
- The right to request specific inquiry or investigation measures (in other words, the right to submit evidentiary motions, e.g. to question a specific individual, examine specific circumstances, etc.)
- When it is not possible to repeat a particular inquiry or investigative activity at the hearing, the suspect and his counsel may be permitted to participate in an activity conducted earlier, except when in case of delay there is a risk of loss or distortion of evidence. The prosecutor may also allow the suspect to participate in other inquiry or investigation activities.
- The authority conducting the investigation is required to deliver to the suspect a copy of the decision to admit evidence from the opinion of an expert or a scientific or specialised institution. This authority will also allow the suspect to participate in the hearing of the expert and review his opinion, but a detained suspect is not brought to the hearing if this would cause serious difficulties.
- The right to purchase one copy of an audio or video recording of a procedural act.
- The right to request a final review of the materials of the proceedings, but if he was duly notified of the date and time of the activity, his unjustified absence will not prevent the proceedings from going forward.
- Within three days after reviewing the materials in the proceedings, the suspect has the right to file evidentiary motions and to request that the evidence to be presented to the court together with the indictment be supplemented to include specific documents from the case file.
What preventive measures can be applied against the suspect?
Various preventive measures can be applied in the course of criminal proceedings against the suspect. The use of preventive measures is aimed at ensuring the proper conduct of the proceedings, e.g. that the suspect will not evade justice or unlawfully obstruct the proceedings. In exceptional cases, preventive measures may be used to keep the suspect from committing another serious crime. Preventive measures may be applied when the evidence indicates a likelihood that the suspect committed the offence.
The most stringent preventive measure that can be applied against a suspect is provisional arrest. This measure may be used only by court order at the request of the prosecutor. Other preventive measures are applied by the court, or during the course of the investigation also by the prosecutor. Apart from provisional arrest, the Criminal Procedure Code also provides for the following preventive measures:
- Property bond (in the form of cash, securities, pledge or mortgage)
- Social guaranty (from the employer where the accused is employed, the head of a school or university where the accused is a student, a team in which the accused works or studies, or a social organisation of which the accused is a member, upon their application, a guaranty may be accepted that the accused will appear at any summons and will not unlawfully obstruct the proceedings)
- Individual guaranty (a guaranty that the accused will appear at any summons and will not unlawfully obstruct the proceedings may also be accepted from a trustworthy person)
- Commitment to police custody
- Eviction from a dwelling (which he occupies with the victim)
- Suspension of the performance of official duties or an occupation, or an order to refrain from certain activities or from operating certain types of vehicles
- Ban on leaving the country, which can be combined with retention of the passport or other document authorising crossing of the border.
Another form of compulsion that may be applied against a suspect is security on the suspect’s property. This is possible when the suspect is accused of committing an offence which carries the penalty of a fine or other monetary sanction, forfeiture, or compensatory sanction, if there is a justified concern that without such security the enforcement of the sanction will be impossible or significantly hindered.