Postępowanie nakazowe w polskim procesie karnym
Injunction proceeding in Polish criminal proceedings

Summary/Abstract: A criminal injunction is declared during a hearing (Article 454 [a] (4) of the Code of Criminal Proceeding) and not during a trial, and therefore a civil action must be filed before the hearing to be covered by a criminal injunction. Of course, there are no obstacles to bringing a civil action already during the preparatory proceedings. The Act does not allow the claim to be fully or partially dismissed by a criminal injunction, stating in the regulation of Article 454d(2) of the Code of Criminal Proceeding that if the proof collected during the preparatory proceeding is inadequate to settle a civil action, the court will leave the civil action without further examination. The aggrieved party therefore has an open avenue to pursue his or her claims through the civil proceeding.Due to the specific nature of an injunction proceeding, manifesting in the lack of a trial and the inability to verify the proof, cases in which the investigation could not be exhaustive, also including data characterising the person of the perpetrator, may not constitute the basis for issuing a criminal injunction. Cases in which there is an allegation of improper conduct by the investigating authorities must also be eliminated from the injunction procedure.The injunction procedure is decided solely by the court after the indictment. In relation to the formal condition of the indictment it should be noted here, that the requirement to indicate the “mode of proceeding” for the case in the indictment (Article 295(1)(5) of the Code of Criminal Proceeding), may not apply to the injunction mode, as it is facultative and not obligatory, as is the case, for example, with the simplified mode (Article 419 of the Code of Criminal Proceeding).Does the facultative nature of the injunction procedure mean that the public prosecutor bringing an indictment, may not simultaneously or later submit a separate request for the case to be investigated during an injunction proceeding? It does not appear that such a prohibition can be deduced from the applicable procedural rules. Nevertheless, it would seem that such a practice should be opposed, especially if combined with a proposal specifying the type and amount of penalty.The view of admissibility of issuing a criminal injunction regarding an act challenged via a private charge should be shared, if the prosecutor initiated a proceeding according to Article 50(1) of the Code of Criminal Proceeding and made an indictment.If it appears from the circumstances of the case that it would be appropriate to impose a sentence of restriction of liberty of more than six months or a fine of more than PLN 200,000 on the accused or to impose an additional penalty other than property forfeiture, the case may not be heard under the injunction procedure. In such a situation, the court is obliged to refer the case for trial. The obligation of the court to refer such cases to regular proceedings should be emphasised here, as the desire to avoid the social costs of a trial and to settle cases with a criminal injunction cannot conflict the sentencing directives of the Criminal Code.The reservation regarding the impossibility of exceeding the upper limits of the penalties listed in Article 454c of the Code of Criminal Proceeding also applies to the aggregate penalty imposed in the criminal injunction on the basis of penalties imposed for concurrent offences.An objection [to a criminal injunction] is an expression of disagreement with the decision made, and for this reason the observation that it does not have to contain specific allegations is valid. It is sufficient that the objection indicates the will to appeal against the criminal injunction. Thus, the accused may outline the limits of the objection to a specific crime or to several of crimes assigned to him or her in the injunction.If the criminal injunction covers several accused persons, each of them has an independent right to challenge the injunction, regardless of whether a subjective concurrence exists or not. Criminal injunction acquires becomes valid for those accused who have not lodged an objection, while the proceeding will continue for the others. There are also no arguments supporting the idea that the prosecutor should be denied the right to subjectively limit an objection to a criminal injunction, when there is no such prohibition in the exercise of the appealing remedy.While we accept the view of the right of the barrister to object against the criminal injunction, it should be emphasised that the fear of negative consequences that may arise for the accused person from right of the barrister not being dependent on the consent of the accused person has been waived as a result of the statutory introduction of the option to withdraw the objection until the commencement of the trial proceedings during the first main hearing (Article 454g (5) of the Code of Criminal Proceeding). In the current state of the law, therefore, both the accused may reconsider the advisability of his or her own decision to lodge an objection and the withdrawal an objection lodged by the barrister are allowed and possible, and this regardless of whether it was lodged without consulting the accused person or with his or her consent.The sentence of the first-instance court following the main hearing does not contain any mention of upholding, revoking or amending the criminal injunction. It is as worded as any other sentence determining the guilt and further legal consequences. The rules on sentencing contained in Chapter 38 of the Code of Criminal Proceeding therefore apply. The fact that a criminal injunction was previously awarded in the case also does not anyhow impact the way in which the imposed sentence is to be challenged.De lege lata, an interpretative directive should be strongly postulated, according to which the declaration of more severe legal consequences in a sentence [issued in a proceeding preceded with a criminal injunction, against which the accused person of their barrister lodged an objection] is permitted only if the court proceeding disclosed new, important aggravating circumstances, exceeding the materials which comprised the basis of the criminal injunction. In this context, the imposition of a more severe penalty without the finding of new circumstances would be perceived as a peculiar punishment for objecting to a criminal injunction and would contradict the postulate of ensuring freedom in the decision to object.

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