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:
- offences prosecuted ex officio (e.g. corruption, bribery, trading in influence, forgery);
- offences prosecuted at the request of the aggrieved party (e.g. cybercrime); and
- 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:
- issuance of an order by a law enforcement authority refusing to open the investigation;
- filing of a complaint against such decision by the aggrieved party with the court;
- revocation of the order by the court;
- return of the case to the law enforcement authority;
- re-issuance of the order by the law enforcement authority refusing to open the investigation;
- re-filing of a complaint by the aggrieved party with the senior prosecutor;
- upholding of the order refusing to open the investigation by the senior prosecutor;
- 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:
- the defendant’s personal details (including phone number and email address);
- information on any preventive measures undertaken or any security established on assets;
- indication and description of the alleged offence (place, time, circumstances, manner of committing, consequences, amount of damage);
- indication of whether the offence was committed by a repeat offender or within an organised criminal group, etc.;
- identification of the criminal law provision violated;
- 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.
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.
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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