Tardiness in investigations and court cases is a structural problem in Poland. This was confirmed among other things in a pilot judgment issued by the European Court of Human Rights (ECHR) of 7 July 2015 in Rutkowski and Others v. Poland (discussed here). This is also confirmed by Ministry of Justice statistics. In 2018, the number of investigations of a duration of between two and five years was up 583 on 2017. Tardiness can occur in particular in complex criminal cases with a commercial element, and for this reason the problem of tardiness will probably affect corporate liability cases conducted once a law now before parliament takes effect. Based on the current wording, the question arises of who will be able to file a complaint concerning tardiness in cases of this kind, and when.
A complaint regarding tardiness in the Polish legal system
The question of complaints regarding tardiness arose in the Polish legal system in the autumn of 2004, when the Act of 17 June 2004 on Complaints about Breach of the Right to Due Process was passed. Initially, this law provided for the option of filing a complaint only in certain kinds of court and enforcement (execution) proceedings. The ECHR criticised this law for being narrow in nature (Krawczak v. Poland, complaint 40387/06), and thus in May 2009 the act was amended. This made it possible to file a complaint concerning tardiness in investigations conducted or overseen by a public prosecutor.
Presently, due to amendments made in 2017 (the Act of 30 July 2016 amending the Law on the Ordinary Court System and Certain Other Acts), a complaint concerning tardiness should be filed when proceedings are in progress (including cassation proceedings) regarding for instance criminal law, petty crime, fiscal criminal, corporate liability, civil law, court and administrative, or for example enforcement cases. On 16 December 2011, the Supreme Administrative Court ruled that in a complaint filed with a court, apart from determining tardiness and issuing instructions to accelerate the proceedings (for example by scheduling a hearing) a pecuniary amount (between PLN 2 000 and PLN 20 000) can also be sought as a form of compensation. The court examining the complaint will specify the amount of this compensation, considering above all the duration of the overall proceedings to date. Under the Act on Complaints about Breach of the Right to Due Process, it is prohibited to examine tardiness in fragmentary fashion, for example in a particular court instance). In addition, this Act states that the compensation should be increased by PLN 500 or even PLN 1000 for each complete year in which the proceedings continue. Notably, under the Personal Income Tax Act, this amount is currently tax-fee for natural persons.
Entities entitled to file a complaint regarding tardiness
The Act on Complaints about Breach of the Right to Due Process states who can file a complaint. In criminal cases, it provides that a complaint can be filed by the parties as well as an aggrieved person, even if they are not a party, for example if that person has not served notice of appearance before a court as an auxiliary prosecutor. Under the Corporate Liability Act of 2002, the parties (public prosecutor, aggrieved person allowed to act alongside the public prosecutor) and the applicant (may be, but is not necessarily the aggrieved person) can file a complaint regarding tardiness. The above demonstrates that the right to have a case heard within a reasonable time, and filing complaints, is not conditional upon being a party to the case in question. This will change however if the new Corporate Liability Act is passed in the current form.
A new act – a new approach to an aggrieved person
The proposal for the Corporate Liability Act introduces major changes regarding the rights of aggrieved persons in cases of this kind. The status of an aggrieved person will be very unclear under this new act. On one hand, a party to the proceedings cannot be an aggrieved person (under the act this status is reserved for an entity and a public prosecutor) while on the other the aggrieved person will be able to file motions (for example for proceedings to be instituted against a corporate entity, or evidentiary motions).
According to the proposed wording of the act, whether a complaint relating to tardiness can be filed by an aggrieved person will depend on whether proceedings concerning a corporate entity were instituted on the basis of a motion filed by that person. Meanwhile, the new act does not state that proceedings have to be conducted at the same time against a corporate entity and a natural person whose action is the basis of the liability.
This means that an aggrieved person will not be able to file a complaint regarding tardiness if proceedings against have been instituted against a corporate entity by a public prosecutor ex officio:
- On the basis of its own materials,
- As a result of exclusion of materials from an investigation already in progress, even if the case was reported by an aggrieved person but the aggrieved person has not filed a motion for proceedings to be instituted with regard to a corporate entity,
- As a result of a crime being reported by somebody other than the aggrieved person, for example an agent of the Central Anti-Corruption Bureau.
According to the current wording of the legislative proposal, an amendment should be recommended during further work on the bill. Firstly, as mentioned above, corporate liability cases will be quite complex. Due to the nature of these cases, they require an understanding of how corporate entities operate (organisational structures, policies, and internal processes). They also therefore require a broad scope of evidentiary proceedings, conducted based on sources of information from individuals, as well as analysis of documentation. Secondly, the architects of the proposal provide that there will be grounds for discontinuing proceedings when it is not possible to conduct proceedings concerning a corporate entity within a reasonable time. A situation in which, in a single legislative act, the right of a corporate entity to have a case heard within a reasonable time is considered more important than the same right of an aggrieved person is irreconcilable with principles of equity of defence in proceedings.
If lawmakers remain closed to these arguments, the problem could be partially resolved by aggrieved persons reporting a crime and filing a motion for institution of proceedings relating to corporate entity liability, each time and simultaneously.
Because, under the proposal, aggrieved persons cannot complain about tardiness, this will be a gross breach of their procedural rights under art. 45 of the Polish Constitution. This is a slightly surprising approach, especially as, at the moment, the possibility of filing complaints regarding tardiness depends on being a party to the proceedings. There is hope however that this problem will be eliminated in the course of the legislative work.
Artur Pietryka, adwokat, Criminal Law practice, Wardyński & Partners