POLAND Trends and Developments Contributed by: Anna Grochowska-Wasilewska, Fieldfisher Poland
The Application of Coercive Measures in Financial Crime Cases in Poland The purpose of this chapter is to examine current trends and developments in the application of select - ed coercive measures that are particularly intrusive for clients suspected or accused of financial crimes in Poland. These measures include arrest ( zatrzym- anie ), preventive measures ( środki zapobiegawcze ) such as pre-trial detention ( tymczasowe aresztowanie ) and financial bail ( poręczenie majątkowe ), and freez - ing of assets ( zabezpieczenie majątkowe ). Through its involvement in a wide range of white-collar crime cases, Fieldfisher Poland is well positioned to observe practical developments in the application of coercive measures by prosecutors and courts. The firm’s expe - rience clearly suggests that awareness of the poten - tial use of such measures enables both individuals exposed to the risk of criminal charges and their close relatives to prepare more effectively for the personal, professional and financial consequences they may face. Arrest Two forms of arrest may be used against individu - als who are at risk of being charged with a criminal offence. So-called police arrest may be carried out by the police (or another law-enforcement authority vested with police powers) without a prior prosecu - tor’s order where there is a reasonable suspicion that an offence has been committed and at least one addi - tional statutory ground is present, including the risk of flight, absconding, tampering with evidence or the inability to establish the suspect’s identity (Article 244, Section 1 of the Polish Code of Criminal Procedure). Prosecutorial arrest, by contrast, is ordered on the basis of a prosecutor’s decision. A prosecutor may order arrest where there are reasonable grounds to believe that a suspect will fail to appear when sum - moned or will otherwise unlawfully obstruct the pro - ceedings (Article 247, Section 1 of the Polish Code of Criminal Procedure). Arrest under this procedure may also be ordered where there is an urgent need to impose a preventive measure without delay (Article 247, Section 2 of the Polish Code of Criminal Proce - dure).
In the highest-profile financial crime cases the firm has handled, arrest was most commonly carried out with - in the framework of prosecutorial arrest. Experience suggests that arrest is also used in proceedings that have already been ongoing for several years, despite the evidentiary material having largely been secured and the individuals concerned being fully aware of the pending investigation. This demonstrates that even in such circumstances, the possibility of arrest cannot be excluded. A particularly significant limitation on the right of defence is the possibility for the arresting authority to be present during consultations between the detained person and defence counsel (Article 245, Section 1 of the Polish Code of Criminal Procedure). Although such a restriction is, in principle, intended to be reserved for exceptional circumstances, practice suggests that officers who carried out the arrest frequently remain present during meetings between the suspect and counsel. Consequently, arrested individuals are often denied the opportunity to communicate with their law - yer in a fully confidential and unrestricted manner prior to their first questioning. The importance of this issue is amplified by the fact that, under Polish criminal procedure, statements made by a suspect during the pre-trial stage may subsequently be relied upon in judicial proceedings and may contribute to the evidentiary basis of a con - viction. For this reason, it is essential to undertake preparations for potential criminal proceedings and questioning as soon as the risk of such proceedings becomes apparent. From the moment of arrest under either procedure, the prosecutor has 48 hours to decide whether to apply to the court for pre-trial detention or to release the suspect and, where appropriate, impose alternatives to pre-trial detention. The grounds for, legality of and manner in which the arrest was carried out may be challenged before a court. Filing such an appeal may facilitate claims for compensation in cases of unjusti - fied arrest. Preventive measures Under Polish criminal procedure, coercive measures such as pre-trial detention, police supervision, finan -
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