2 - My rights during investigation of a crime and before the case goes to court
What is the aim of preparatory proceedings in a criminal case?
The preparatory proceedings are conducted in order to:
- Decide whether a crime has been committed;
- Establish who committed the crime and take the steps necessary to prevent the person from going into hiding or interfering with the proceedings;
- Collect information about the suspect and their environment;
- Explain precisely the circumstances of the case, including identifying the victims and the extent of the damage and injury;
- Collect, secure and preserve any evidence so that the court can give its judgment as soon as possible (preferably at the first hearing);
- Explain what circumstances have contributed to the commission of the offence.
What are the various types of preparatory proceedings?
The preparatory proceedings may be conducted either as inquiry or investigation.
An inquiry – in the case of less serious offences – is conducted by the Police and supervised by the prosecutor. It should be concluded within two months. The prosecutor may extend it to three months and in specific cases for a specified additional period. However each time the length of the extension must be stated. The inquiry is a less formal form of preparatory proceedings.
An investigation – in the case of serious offences – is conducted by the prosecutor but it may also be entrusted in whole or in part to the Police. It has to be finished within three months but may be extended for one year and in more complex cases for even longer. Again, the length of each extension must be clearly stated.
What are the stages of preparatory criminal proceedings?
Who conducts the preparatory proceedings?
Preparatory proceedings are generally conducted by the Prosecutor’s Office, supervised by the independent Prosecutor General. They can also be conducted by the Police and other uniformed services such as the military police.
Detailed stages of the pre-trial proceedings
For more information about your rights during the various stages of the proceedings, click on the links below:
- Analysis of the case (1)
- Presentation of charges (2)
- Preventative measures (3)
- Gathering evidence (4)
- Closing the pre-trial proceedings (5)
The first stage is a decision to begin the investigation or inquiry. It is issued when the authorities have good reason to suspect that an offence has been committed.
If the authorities are not yet convinced that an offence has in fact been committed, they have to verify the facts. They have 30 days to do this. After that they have to issue a decision to institute or to refuse to institute preparatory proceedings.
In urgent cases they may start to collect evidence even before the decision to begin the proceedings is made, in order to save the evidence from destruction or disappearance. They may also interrogate a suspected person. In that case a decision to present charges to the suspect or to refuse to institute the proceedings must be made within 5 days.
Will I be asked for fingerprints, samples of my DNA (e.g. hair, saliva), or other bodily fluids?
You are obliged to undergo examinations which do not harm your life or health. In particular, you may be fingerprinted, photographed, etc.
Samples of blood or other body fluids may be taken only if the process of taking them is not dangerous to your life or health. The samples must be taken by a certified healthcare professional.
If you refuse to undergo these procedures voluntarily, force may be used to take the samples.
Can there be a body search?
A body search is allowed if there is a suspicion that you are in possession of objects which could be used as evidence in the case. However, the search should be conducted by a person of the same sex as you.
Can my home, business premises, car etc be searched?
Yes, your home, business premises and other places may be searched if there are grounds to believe that there are objects there which might be used as evidence; or that suspects may be found there. The search is conducted by the prosecutor or by the Police. The person conducting the search should present you with the decision authorising it, unless it is an extremely urgent situation.
In exceptional situations, a search of premises may be conducted at night (between 10 p.m. and 6 a.m.).
Before the search begins, you should be asked to hand over the objects which the police are looking for.
You have the right to be present during the search.
Where the search is conducted without a decision authorising it from the court or the prosecutor, you may ask that the search decision should be confirmed by the relevant authorities. Such confirmation should be made within 7 days and you must be notified of the decision. Otherwise, all objects which have been seized must be returned to you.
The second stage begins with the presentation of the charges to a suspected person. It takes place when the authorities have good reason to suspect that a particular person has committed the crime under investigation. From that moment the suspect has specific rights and obligations.
The authorities draw up a decision to present the charges and must announce them to you without delay. After this, they proceed with the interrogation (unless the suspect is hiding or has left the country.
If an inquiry rather than an investigation is underway, there is no obligation to draw up a decision to present the charges unless you are under temporary arrest. You may be informed of the charges against you orally and be interrogated immediately. You become a suspect from the moment the interrogation begins.
Will an interpreter be provided if I don't speak the language?
If you don’t speak Polish, you have the right to the services of an interpreter free of charge, You will also receive translations of the decisions to present, supplement or change the charges, the indictment and any decision which can be appealed or which concludes the proceedings.
If you do not wish to appeal against the final decision and it has been explained to you by the interpreter, you may agree that no written translation is necessary. The interpreter will be present during the interrogation and also while evidence is being taken.
At what stage will I be able to speak to a lawyer?
You have the right to contact a lawyer from the moment the charges are presented to you.
If you are conditionally released, you may have unrestricted contact with your lawyer.
If you are under temporary arrest, you have the right to communicate with your lawyer in private, or by mail.
In exceptional circumstances, and only within 14 days from the date of temporary arrest, the prosecutor may reserve the right to be present or order that correspondence be reviewed.
Must I have a lawyer? Can I choose my lawyer?
You are not required to have a lawyer.
If you are a minor, deaf, mute, blind or there are reasonable doubts as to your sanity, the court may decide that you must have a lawyer. The accused must have a counsel also when the court deems it -necessary owing to circumstances hampering the defence
If you don’t choose a lawyer, one will be appointed for you. You may ask that a lawyer be appointed for you if you can show that you cannot afford to pay the costs of the defence without affecting your ability to support yourself and your family.
Will I be asked for information? Should I provide information?
You will probably be asked to reveal your personal details, and afterwards you will be asked questions concerning the details of the case.
You may however refuse to answer any question or even refuse to make any explanatory statements without giving any reasons. You must be advised of these rights.
What happens if I say something which is bad for my case?
No-one is allowed to force you to provide evidence against yourself. However if you choose to reveal facts which might be bad for your case, they will be taken into consideration by the court, just like any other evidence.
The prosecutor may make a decision to impose certain preventive measures, aimed at ensuring that the proceedings can be conducted effectively.
In Polish criminal procedure they are:
- Financial guarantee – this consists of depositing a certain amount of money or securities or establishing a mortgage. If you interfere with the investigation you may forfeit the financial guarantee that you have given;
- Social guarantee - your employer or the management of a school, university, or social organization that you are connected with may guarantee that you will appear whenever summoned and will not interfere with the course of the proceedings;
- Police supervision – you may be required to report to the Police at a particular time or to inform the Police of any changes in your whereabouts;
- Suspension of business activities, ban on pursuing a particular occupation, ban on driving etc.;
- Prohibition against leaving the country – in connection with this, your passport or any other document allowing you to go abroad may be seized;
- Temporary arrest.
Will I be held in custody or released?
The prosecutor may ask the court to put you under temporary arrest. This might happen if it is highly likely that you have committed an offence and that you might flee or go into hiding, or where there is a risk that you might try to persuade other people, (e.g. the victim) to make a false statement.
This measure may also be imposed if you are charged with committing an offence which is subject to a severe penalty.
However the court will not put you under temporary arrest if you are charged with an offence subject to a penalty of less than one year in prison unless you have been caught red-handed.
The temporary arrest will be revoked if the reason for its imposition ceases to exist. This also applies to any other preventative measures.
In principle temporary arrest lasts 3 months, but may be prolonged in exceptional circumstances for the duration of the entire preparatory proceedings (no longer than 2 years up to the day the trial is concluded in the court of first instance).
An appeal court can agree to extend the arrest further, if there are significant obstacles to concluding the proceedings (e.g. evidence has to be taken abroad).
What rights/obligations apply?
If you are under temporary arrest you have the right to file an appeal.
While you are in custody, you may also file motions asking to be released from the arrest, if the reasons for imposing it are no longer valid.
A person close to you must be informed about the fact that you have been arrested.
If you have sole responsibility for the care of a child or a disabled person, the court must inform the relevant social service about the need to provide care for those people in your absence.
The court will also take action to protect your property while you are in custody, e.g. by making sure your home is secure. While you are in custody, you continue to have the right to contact your lawyer.
Can I contact a family member or friend?
If you are conditionally released the contact may be unlimited.
If you are under temporary arrest, you need the consent of the prosecutor to have such contact.
Can I see a doctor if I need one?
While you are under temporary arrest you may have access to medical services.
Initially, medical care will be provided in the medical centre of the place where you are being held in custody.
If your health condition is serious and complicated, the prosecutor may decide that you should be examined at a public hospital.
Can I contact my Embassy if I am from another country?
Yes, you have the right to do so.
During this stage of the proceedings information about the alleged offence is gathered.
The Code provides for various ways that evidence can be gathered. These include: witness statements, statements made by the accused, expert witnesses, confrontation, visual inspection of the crime scene or objects or people, post-mortem examination, experiment or reconstruction, interviewing members of the local community, examination of the detainee, seizure of objects, search of premises, interception of calls.
I am from another country. Do I have to be present during the investigation?
You have to appear whenever summoned by the authority which is conducting the pre-trial proceedings.
Unfortunately, the Code of Criminal Procedure does not provide for participation in the proceedings by video link.
However you may file a motion for interrogation by means of a process known as ‘legal assistance’. In this case, the responsibility for gathering certain evidence (examination, inspection, interrogation etc.) can be transferred to the local Police or Prosecutor’s Office in your home Member State.
What kind of evidence can I produce on my own behalf?
You may file motions asking that certain evidence should be obtained, and request the performance of certain activities by the authority conducting the proceedings.
Under what conditions can I introduce such evidence?
You have to file a motion in writing or orally which will be included in the record of the interrogation (e.g. motion to obtain a statement from a witness to prove that you were abroad at the time the offence was committed).
Can I be sent back to my home country?
This can only happen if your home country requests it.
May I remain silent during the interrogation?
You may refuse to provide any statements and just remain silent. No one may force you to incriminate yourself. However, you have the right to make statements about every aspect of the case, e.g. evidence taken in your presence.
What are the consequences if I don't tell the truth during the trial?
There are no negative consequences if you do not tell the truth. As a defendant, you are not obliged to tell the truth. You may not however incriminate other people without good reason.
May I leave the county during the proceedings?
You may leave the country if you are not subject to Police surveillance and are not prohibited from doing so.
You are however obliged to inform the authority conducting the proceedings about any change in your place of residence lasting longer than 7 days. If you break the prohibition or fail to fulfil your obligations, the prosecutor may request the regional court to issue a European Arrest Warrant or apply other measures, e.g. request your interrogation under international legal assistance.
Can I plead guilty to some or all of the charges before the trial?
Yes, you may plead guilty to some or all of the charges against you.
Formally you may do so at any point from the moment the charges are presented during your interrogation as a suspect until the trial is concluded.
What will happen then?
Pleading guilty does not automatically bring the proceedings to an end because the authority conducting the pre-trail proceedings or the court if the indictment has already been filed, may consider whether the guilty plea might lead to a circumvention of the law, e.g. protect another person or conceal someone else’s crime.
If you plead guilty, this may mean that you receive a less severe sentence.
Can the charges be changed before the trial?
The charges may be changed if the description of the offence changes during the proceedings.
The modification may consist of changing the legal classification of the offence to one carrying a higher penalty.
Can new charges be added? In what circumstances
Where new evidence is obtained you may be charged with new offences which were not covered by the initial charge document.
You have to be informed in writing about the modification of the charges, whether this is by changing the charges or by adding new ones.
For information about changing the charges during court proceedings, see Factsheet 3.
Can I be charged with an offence which I have already been charged with in another Member State?
The fact that a decision has been issued abroad is not a bar to instituting or conducting criminal proceedings concerning the same offence before the Polish court However if a legally valid decision of another court or another foreign authority has been made in relation to the same offence, the case cannot be heard again.
When the authorities are satisfied that they have clarified and explained all the circumstances in the case and gathered all necessary evidence they issue a decision to close the investigation (such a decision is not required in an inquiry) and:
- Submit an indictment to the court, or
- issue a decision to discontinue the pre- trial proceedings, or
- refer the case to the court with a motion that the proceedings should be discontinued and security measures should be imposed, if they recognize that the suspect committed the crime while suffering from mental incapacity.
Will I get information about the witnesses against me?
Yes, in principle a list of witnesses is attached to the indictment and must be sent to you.
You have the right to call further witnesses.
Information which identifies the witnesses will not be given to you if that might put their lives or health in danger.
Will I get information about other evidence against me?
Yes, you have the right to familiarise yourself with materials gathered during the pre-trial proceedings, before they come to an end.
Will information be requested about my criminal record?
See Factsheet 3.
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Last update: 15/02/2012