POLAND Trends and Developments Contributed by: Anna Grochowska-Wasilewska, Fieldfisher Poland
The expansive interpretation of the aforementioned conditions for pre-trial detention constitutes one of the factors contributing to the excessive length of pre- trial detention. In the financial criminal cases in which the firm has represented clients, the duration of pre- trial detention ranged from two months to as long as almost two years. Under Polish criminal procedure, pre-trial detention may last up to 12 months during the investigative stage of the proceedings and up to two years until the delivery of the judgment by the court of first instance. A significant difficulty, however, is that these statutory time limits are not absolute, as appel - late court are empowered to extend pre-trial detention beyond those limits. Financial bail One of the alternatives to pre-trial detention most fre - quently applied in financial crime cases is financial bail. Legislative amendments introduced several years ago have, however, given rise to a number of prac - tical difficulties. Under the current legal framework, the object of financial bail may not originate from a gain obtained by the defendant or by another person posting bail for that purpose. Moreover, the court or prosecutor may condition the acceptance of bail on the requirement that the person providing it demon - strates the lawful origin of the funds (Article 266, Sec - tion 1a of the Polish Code of Criminal Procedure). The notion of “gain” in this context has been interpreted inconsistently in practice, giving rise to three principal approaches. The first, and most restrictive, assumes that an unlaw - ful gain exists whenever the funds used for bail origi - nate from third parties other than the person posting the bail, including funds obtained through loan agree - ments or donations. The second approach allows the use of funds obtained under a loan agreement, on the basis that a loan entails an obligation to return the funds within an agreed period and therefore does not constitute a definitive financial benefit. The third, and most liberal, interpretation limits the concept of “gain” exclusively to benefits derived from unlawful sources. The firm’s experience suggests that the second approach is currently the one most commonly accepted in prosecutorial practice. The introduction of the “gain” criterion has significantly increased the
importance of properly documenting the origin of funds used for financial bail, whether provided by the defendant or by a third party. Freezing of assets Under the Polish Code of Criminal Procedure, freez - ing of assets may be imposed once criminal charges have been formally brought against a specific indi - vidual, and there is a genuine risk that, without such measures, the enforcement of future financial pen - alties, confiscation orders, or compensation claims could become impossible or substantially hindered (Article 291, Section 1 of the Polish Code of Crimi - nal Procedure). In practice, prosecutors routinely use asset-freezing measures in financial crime cases and, owing to the wide statutory grounds governing their application, successfully challenging the justification for such measures before a court may prove particu - larly demanding. Asset freezing constitutes one of the most intrusive coercive measures from the perspective of clients. Polish law permits the freezing of a wide range of assets, including bank accounts, real estate, compa - ny shares, vehicles and intellectual property rights. In practice, a significant difficulty for clients stems from the fact that, in financial crime cases, asset freezing is frequently imposed simultaneously with high finan - cial bail. For that reason, it is particularly important to undertake protective steps long before the com - mencement of any criminal investigation that could mitigate the potential impact of freezing orders, such as separating joint bank accounts held with a spouse and maintaining clear documentation concerning the origin and ownership of assets. One of the most problematic aspects of asset freezing in Poland is also the potentially prolonged duration of such measures. Under Polish law, assets may remain frozen throughout the entirety of criminal proceedings, which, in complex financial crime cases, may extend over several years. Summary The application of coercive measures in criminal pro - ceedings against individuals suspected of financial crimes is typically multilayered and highly intrusive. Suspects face not only the risk of deprivation of lib -
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