The act of filing an indictment by a subsidiary prosecutor (the lack of possibility of renewing a time-limit). SK 28/10
The non-renewable character of the time-limit for filing an indictment by a subsidiary prosecutor may not be regarded as the infringement of the principles of a fair court procedure.
At the hearings on 15 May and 25 September 2012, the Constitutional Tribunal considered a constitutional complaint, submitted by Mr Zygmunt G., which concerned the act of filing an indictment by a subsidiary prosecutor (the lack of possibility of renewing the time-limit).
In the judgment of 25 September 2012, the Constitutional Tribunal adjudicated that Article 55(1), first sentence, of the Act of 6 June 1997 – the Polish Code of Criminal Procedure, insofar as it provided for the non-renewable character of the time-limit specified therein, was consistent with Article 45(1) of the Constitution.
There was one dissenting opinion, submitted by Judge Teresa Liszcz.
The constitutional issue in that case was whether setting the non-renewable time-limit of one month for filing an indictment by a subsidiary prosecutor deprived the injured party of its procedural rights, thus infringing the standards of a fair court procedure.
The Constitutional Tribunal stated that a criminal case is the case of the accused. However, pending court proceedings in a criminal case may affect various kinds of interests of the injured person. Therefore, at the moment of filing an indictment by a competent prosecutor, the case – in a sense – also becomes the case of the injured person.
For that reason, the injured party may be regarded as a special party provided with appropriate guarantees arising from the constitutional right to a fair and public hearing of its case, without undue delay, before a competent, impartial and independent court (Article 45(1) of the Constitution). The following rights of the injured party arise from the said provision.
The injured party has the right to criminal proceedings which comply with the requirements of a fair court procedure, i.e. by taking into account the party’s legitimate interests and its right to a hearing.A fair criminal procedure is aimed at ensuring that a fair judgment is issued with regard to a person accused of committing an offence and at applying the norms of substantive criminal law in an appropriate way. The fair procedure must guarantee not only the accused person’s right to be defended and the presumption of innocence, but also the legitimate rights of the injured party, at the same time striking an appropriate balance between procedural rights of the two opposing parties to proceedings.
The injured party has the right to have its criminal case determined, without undue delay, in a legally effective way by a court, where the case has been filed in court by a competent prosecutor.
The injured party has the right to have its case considered by a court that meets the constitutional requirements of impartiality and independence.
The Constitution guarantees that the injured party has the right to have its case considered by a court, including the right to institute proceedings before a court, without determining the form of proceedings. The injured party’s right to institute court proceedings is primarily exercised in civil proceedings. In exceptional cases, the injured party may try to assert some of its rights in court and administrative proceedings. This may, in particular, concern situations where some actions of a person representing an organ of public authority display the characteristics of an offence. By contrast, the assessment of validity of specified procedural regulations concerning the injured party must take into account a broader context which comprises all the rights enjoyed by the party, both in civil proceedings (and possibly in court and administrative proceedings) as well as in criminal proceedings.
However, the injured party has no right to institute court proceedings as regards offences prosecuted ex officio. The state takes over the role of the prosecutor on the said party’s behalf, and also has the power to indict a suspect. Still, the injured party is entrusted with some powers that enable it to exert control, such as an appeal against refusal to institute proceedings or against the discontinuation of preliminary proceedings, and also the right to file an indictment as a subsidiary prosecutor. Thus, as regards the injured party, a criminal case concerning offences prosecuted ex officio becomes the case within the meaning of Article 45(1) of the Constitution only after the institution of court proceedings by a competent prosecutor. For that reason, with regard to the injured party, guarantees arising from the constitutional right to a fair trial comprise solely criminal lawsuits filed in courts by a competent prosecutor.
One of the prerequisites for filing an indictment as a subsidiary prosecutor is the observance of one-month time-limit which runs from the service of a decision on refusal to institute proceedings or on the discontinuation of proceedings on the injured party.
As a result of regarding the one-month time-limit for filing an indictment by a subsidiary prosecutor as a non-renewable time-limit, after the lapse thereof – regardless of reasons - filing an indictment is legally ineffective. Therefore, a court may not conduct proceedings against a person indicated as the accused by the injured party. The injured party may not request that the said time-limit be renewed, even if the said party could not observe the time-limit without its fault.
The Constitutional Tribunal has no jurisdiction to assess whether legislative solutions are useful and reasonable. The choice of appropriate legal solutions in proceedings before the organs of public authority is the sole power of the legislator. The constitutional principles of a fair court procedure provide the legislator with a broad scope of regulatory freedom, and it is his task to choose among numerous constitutionally admissible solutions.
The Constitutional Tribunal concluded that the assessment of constitutionality of Article 55(1), first sentence, of the Code of Criminal Procedure, needs to be carried out in the context of all the rights of the injured party as regards instituting criminal proceedings. Indeed, the victim of an offence has a catalogue of powers at his/her disposal in order to assert his/her rights in criminal proceedings. The fundamental instrument for protecting the rights of the injured party is the principle stating that certain offences shall be prosecuted ex officio as required by law, which is linked to the obligation to examine a given case with due diligence by authorities that are competent to carry out an investigation. The Code of Criminal Procedure guarantees that the injured party has the right to appeal against refusal to institute proceedings or against the discontinuation of proceedings. Thus, the injured party is granted with the right of access to a court in order to protect its interests in the event of a dispute with competent authorities that take a decision on filing an indictment in the party’s case. An important instrument for protecting the rights of the injured party is also the institution of “enforcing a complaint”. The possibility of filing an indictment as a subsidiary prosecutor constitutes an additional instrument for protecting the interests of the injured party, which falls outside the scope of the rights of the injured party which are enshrined in the Constitution.
The Constitutional Tribunal pointed out that, in the context of binding provisions, a situation where there is a possibility of filing an indictment as a subsidiary prosecutor does not constitute an element of surprise for the party concerned. By appealing against refusal to institute proceedings or against the discontinuation of proceedings, the injured party must take into account the risk that its appeal may be dismissed. Hence, if the said party intends to institute proceedings before a court, it may anticipate that a need will arise to draft an indictment. The prospect of filing an indictment as a subsidiary prosecutor arises with the first decision of a competent authority on refusal to institute proceedings or on the discontinuation of preliminary proceedings.
When assessing the constitutionality of the challenged provision, one should take into consideration the legitimate interest of a person indicated by the injured party as an alleged perpetrator of a given offence. The said person is protected by the constitutional presumption of innocence, and for that reason s/he should be regarded as innocent until his/her guilt is confirmed by a legally effective court ruling. The person meant here is the one with regard to whom, despite examining the case for the second time, competent state authorities find no grounds for carrying out criminal proceedings. The person has the right to expect that a decision on carrying out criminal proceedings against her/him will be made without undue delay, within a clearly specified time-frame. What is indispensable here is a mechanism which ensures that the person’s case is resolved and which guarantees legal security. The possibility of renewing the time-limit for filing an indictment by a subsidiary prosecutor would result in prolonging the state of uncertainty as to criminal proceedings in the case of the person indicated as the perpetrator of a given offence. As it has been stated in the literature on the subject, the purpose of the time-limit imposed on the right to file an indictment by a subsidiary prosecutor is to protect an alleged perpetrator from a situation where s/he will, for a long time, remain dependent on the action of the injured party that has the right to institute court proceedings against the said person.
In the view of the Constitutional Tribunal, the non-renewable character of the time-limit for filing an indictment by a subsidiary prosecutor may not be regarded as the infringement of the principles of a fair court procedure, to the extent which would justify ruling the said solution to be inconsistent with Article 45(1) of the Constitution. The adoption of that solution falls within the scope of regulatory freedom granted to the legislator by the constitution-maker.
The hearing was presided over by Judge Zbigniew Cieślak, and the 1st Judge Rapporteur was Judge Teresa Liszcz and the 2nd Judge Rapporteur was Judge Mirosław Granat.
The judgment is final and its operative part shall be published in the Journal of Laws.