Subsidiary indictment

Subsidiary indictment

If the prosecution or the police refuse to file a bill of indictment against a perpetrator, the aggrieved party may wonder whether it closes the way for such a person to be punished. The answer is no – in such circumstances, the wronged party may file an indictment with the court on their own. For offences prosecuted ex officio or at the request of the wronged party, it will take the form of a subsidiary bill of indictment, and for other offences – a private bill of indictment. Below, we explain when a subsidiary indictment may be filed and what elements it should comprise.

Mode of prosecution

First, it must be determined whether the offence committed is an offence prosecutable ex officio. Depending on the mode of prosecution, the Code of Criminal Procedure provides for three categories of criminal offences, namely:

  1. offences prosecuted ex officio (e.g. corruption, bribery, trading in influence, forgery);
  2. offences prosecuted at the request of the aggrieved party (e.g. cybercrime); and
  3. offences prosecuted by a private indictment (e.g. defamation).

A subsidiary bill of indictment can only be filed for offences referred to in points (1) and (2) above.

Subsidiary indictment step by step

A subsidiary bill of indictment is a measure of last resort and can be filed if law enforcement authorities refuse to open an investigation or decide to discontinue it. However, before filing a subsidiary indictment, the wronged party should take steps to challenge the unfavourable decision of the law enforcement authority. The procedure leading to a subsidiary indictment is as follows:

  1. issuance of an order by a law enforcement authority refusing to open the investigation;
  2. filing of a complaint against such decision by the aggrieved party with the court;
  3. revocation of the order by the court;
  4. return of the case to the law enforcement authority;
  5. re-issuance of the order by the law enforcement authority refusing to open the investigation;
  6. re-filing of a complaint by the aggrieved party with the senior prosecutor;
  7. upholding of the order refusing to open the investigation by the senior prosecutor;
  8. bringing of a subsidiary bill of indictment by the aggrieved party to the court.

Time limit for filing a subsidiary indictment

A subsidiary indictment (e.g. in counterfeiting, insurance fraud or money laundering cases) may be filed within one month of the date on which the public prosecutor’s final decision is served on the wronged party. This time limit is final and cannot be reinstated. Therefore, filing a subsidiary bill of indictment after the expiry of the time limit is ineffective and will not result in the opening of court proceedings.

Elements of a subsidiary indictment

A subsidiary indictment, e.g. in cases involving drug trafficking, passive bribery or credit fraud, should comprise the following elements:

  1. the defendant’s personal details (including phone number and email address);
  2. information on any preventive measures undertaken or any security established on assets;
  3. indication and description of the alleged offence (place, time, circumstances, manner of committing, consequences, amount of damage);
  4. indication of whether the offence was committed by a repeat offender or within an organised criminal group, etc.;
  5. identification of the criminal law provision violated;
  6. indication of the competent court.

A subsidiary bill of indictment should be signed by a professional attorney, i.e. an advocate or an attorney-at-law. In addition, it should be accompanied by a statement of reasons and a list of evidence, including, for example, witnesses to be heard at trial, as well as a list of the aggrieved parties.

If the subsidiary indictment is not signed by a professional attorney, this constitutes a formal defect that must be remedied within 7 days of the court’s request to do so being served. Otherwise, the case cannot be processed and will be discontinued.

Competent court

A subsidiary indictment is filed with the court in the jurisdiction of which the offence was committed. Depending on the type of offence, the competent court is either the district court or the regional court. In the case of felonies (crimes punishable by at least three years of imprisonment), the competent court will always be the regional court. For example, if invoices for PLN 10 million are falsified in the Warsaw district of Praga, the competent court will be the Warsaw-Praga District Court in Warsaw, 5th Criminal Division, seated at 3 Poligonowa Street (04-051 Warsaw).

Costs of filing a subsidiary indictment

When filing a subsidiary indictment, a lump sum of PLN 300 must be paid as a court fee to cover the costs of the proceedings. Proof of payment of the fee should be attached to the subsidiary indictment.

Summary

The aggrieved party may file a subsidiary indictment when the prosecutor sees no grounds to pursue the case ex officio. A subsidiary bill of indictment must be drawn up in the form required by law, by a professional attorney, i.e. an advocate or an attorney-at-law. In addition, a subsidiary indictment is subject to a fixed court fee and must be filed within a set time limit. Only if all of these conditions are met will a subsidiary bill of indictment be successfully brought to court. For assistance with filing a subsidiarity bill of indictment, we encourage you to contact Radkiewicz Lawyers Poland where we specialise in providing legal advice in the area of criminal law.

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Organised crime

Organised crime

Organised crime is often associated with the operation of a mafia. However, it is a misconception, as this phenomenon is much more common than one might think. Below we explain what organised crime is, when it occurs and which criminal offences it may be linked to.

Relationship between organised crime and other offences

Under the Criminal Code, participation in organised crime is defined as a separate offence. However,  in our view, it should be considered in conjunction with other crimes, defined both in the Criminal Code and the Fiscal Penal Code. Organised crime is often linked to such crimes as:

  1. cybercrime (computer-related fraud);
  2. corruption (bribery, trading in influence);
  3. VAT fraud;
  4. money laundering;
  5. credit fraud;
  6. insurance fraud;
  7. forgery (counterfeiting of money).

When does organised crime occur?

Organised crime occurs if one acts in a group or an organisation aimed at committing a criminal offence or a criminal fiscal offence. The mere fact of being a member of an organised criminal group constitutes a crime, even if one is not personally involved in committing any specific offences.

Criminal group

According to legal scholars and case law, an organised criminal group consists of at least three persons. However, this does not incline that all members of such group will be convicted (it may be the case – for example – for just one of them). In principle, a criminal group has a fixed organisational structure and consciously pursues its aim of committing at least one criminal offence. However, a view has also been expressed in case law that such group does not need to have an internal structure.

Criminal organisation

A criminal organisation is characterised by a more organised structure than a criminal group. In its rulings, the Supreme Court has recognised the following key characteristics of a criminal organisation:

  1. existence of permanent organisational forms;
  2. existence of management;
  3. discipline of its members.

Organised crime and sentencing 

Participation in an organised criminal group or a criminal organisation is punishable by imprisonment of 3 months to 5 years.

Armed nature of a criminal group

In the light of the Supreme Court’s rulings, a criminal group is considered armed if it is permanently equipped with weapons that it uses or intends to use in the pursuit of its activities and that it collects for that purpose.

Participation in organised crime of an armed nature is punishable by imprisonment of 6 months to 8 years. A person founding or leading an armed organised criminal group faces imprisonment of one to 10 years.

Avoidance of punishment

A person participating in an organised criminal group or a criminal organisation may avoid punishment. For that to happen, such person must:

  1. voluntarily withdraw from the group and disclose all the relevant circumstances of the crime to law enforcement authorities, or
  2. effectively and fully abandon an attempt to commit an offence or prevent an offence from being committed by a third party.

The voluntary nature of the offender’s action must result from his or her independent decision. However, the motivation behind such action is not relevant and does not affect the offender’s ability to avoid criminal liability. 

All relevant circumstances of the crime are understood as the circumstances that will allow law enforcement authorities to prosecute the offenders involved in organised crime. They may include information on the composition of the group and the details of its members, its organisational structure and resources (e.g. whether it owns any weapons), the crimes committed and planned by the group, as well as the group’s links with other criminal organisations.

Summary

Organised crime has been defined in the Criminal Code and is often related to other offences or fiscal offences. It only requires three people to form a criminal group, therefore many offences (e.g. VAT fraud) also constitute an offence of participating in an organised criminal group. It means that the penalties imposed for such offences are higher than when the offenders act alone.

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Business fraud lawyers

Business fraud lawyers

Radkiewicz Lawyers Poland offers services regarding fraud issues. Our attorneys possess up-to-date knowledge and significant experience in advising clients dealing with fraud allegations. If you have fallen victim to fraudulent proceedings, do not hesitate to contact us. With the expertise of our attorneys, you will have the chance to claim and recover your losses. The firm’s fraud lawyers carry out an in-depth analysis of each individual case and proceed to create the optimal legal strategy. If need be, we investigate fraudulent proceedings further, identifying the perpetrators and evidence of fraud.

Fraud in Polish law

Regulatory provisions regarding fraud crimes are determined in the Criminal Code, Article 286. In general, we can talk of fraud when a natural or legal person is, without their knowledge, made to perform a disadvantageous disposal of property (whether the property is theirs or not, the condition is that they are permitted to manage said property). Although the aggrieved party decides about disposal of property themselves, they are influenced by the perpetrator, often with the use of untrue or incomplete information.

Criminal responsibility for fraud crimes

To qualify actions as a crime of fraud, the alleged perpetrator needs to be proven that they acted with a clear and deliberate intent of gaining substantial benefit. The benefit does not have to be pecuniary to satisfy this condition. It can either be for the perpetrator or another person. Of course, this is a very general description. To receive detailed professional guidance on fraud issues, contact Radkiewicz Lawyers Poland and consult our fraud lawyers.

Fraud perpetrators can be penalized with a fine, restriction of freedom or imprisonment. The penalty depends, among other factors, on the worth of property lost by the aggrieved party.

Common types of fraud

  • Credit fraud, usually involving forging documents and using stolen identity to be approved for bank credits.
  • Insurance fraud, for instance claiming insurance money for staged accidents.
  • Computer fraud, for example phishing, destroying data etc.
  • VAT fraud – tax evasion by, e.g., not registering for a VAT number.
  • Odometer fraud – lowering a vehicle’s mileage, e.g. to get a better price from a buyer.
Business fraud lawyers Warsaw

Corporate and business fraud

Radkiewicz Lawyers Poland’s mission is to provide all-encompassing legal support for businesses. Let us look at some specific business-related offences which require fraud lawyer’s support in more detail.

1. Obstruction of public tenders

Disrupting a public tender can be done, for example, by colluding to choose a specific offer. Any deliberate actions causing disadvantage to the property owner or institution calling for tenders violate the law.

2. Simulation of bankruptcy

Causing damage to creditors is qualified as business fraud. Any debtor who prompts their insolvency or bankruptcy by obviously disadvantageous transactions can be held accountable for breaking the law.

3. Bank-related fraud

In the section above, we have mentioned credit fraud, which essentially falls into the broader category of bank-related frauds. A fraud lawyer is indispensable in cases of such offences. These cases are difficult, often leaving the aggrieved party with significant financial losses. Perpetrators use forged or counterfeit documents to receive loans, credits, endowments etc.

4. Document forging

Anyone who forges or alters a document with the intent of using it as an authentic one breaks the law. Additionally, filling in and signing a document in someone else’s name, without their permission and to their disadvantage, is liable to legal punishment.

5. Inaccurate documentation keeping

This offence usually includes either destroying, altering, hiding documentation about business activity. Such actions are intended to cause financial damage to a legal or natural person or institution.

6. Inflicting damage in business transactions

This specific offence concerns persons with authority to manage a legal or natural person’s or institution’s business or financial activity. If said persons act to their detriment, they are held accountable by Polish criminal law. Such actions can be done either by abusing permissions or failure to fulfil obligations.

7. Impeding claim submissions

8. Insurance and computer fraud – see in the section above

Consult a qualified fraud lawyer at Radkiewicz Lawyers Poland

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+48 22 489 52 65