Paul Suwara

LAWYER

Subsidiary indictment and identity The present provisions of the prosecutor

To write this article I recently led a conversation with the prosecutor of the Regional Prosecutor's Office Warsaw-Prague before one of the hearings. This conversation reminded me of the times, when I wrote a thesis on crime abuse of power or breach of duty by a public official Article. 231 k.k. That prosecutor was of the opinion, it must be objectively identical provisions of both law enforcement.

The institution of a subsidiary indictment was described in Article. 55 § 1 k.p.k. in conjunction. z art. 330 § 1 k.p.k. Procedure, which then allows the victim bringing a subsidiary indictment as follows:

investigation body issues a decision not to initiate an investigation or to discontinue preparatory proceedings;

next, victim asks the court against the above. decision;

the court repeals the provision;

re-investigation body issues a decision not to initiate an investigation or to discontinue preparatory proceedings, wherein, Both provisions - before and after the repeal of the court - must be objectively identical. It means, that if the first decision concerned the refusal to initiate criminal investigations, This decision issued after the repeal of the contested order, the court must also relate to the refusal to institute proceedings.

The above-mentioned understanding of the institutions described in Article. 55 § 1 k.p.k w zw. z art. 330 § 2 k.p.k. It is dominant both in the jurisprudence, as in doctrine and, T even recalling comments. Grzegorczyk (Tomasz Grzegorczyk, Code of Criminal Procedure. tom I. articles 1-467. Comment, LEX 2014), Richard A. Stefanski and S. Zablocki (Ryszard Stefanski A. (red.), Stanislaw Zablocki (red.), Code of Criminal Procedure. tom I. Comment on Article. 1-166; WKP 2017), H. Paluszkiewicz and K. rachis (Katarzyna Dudek (red.), Code of Criminal Procedure. Comment; WKP 2018) and decisions of courts and tribunals - the decision of the Supreme Court dated. 24.11.2016 r., ref. Akt III KK 274/16; Supreme Court ruling dated. 22.05.2013 r., ref. Act IV KK 128/13 and the judgment of the Constitutional Court dated. 19.05.2015 r., ref. No. SK 1/14.

It should be, however, raise the question: whether the order issued by the authority of the preparatory proceedings after reversing the decision by a criminal court must be the same as the order under appeal? Nieprawniczym writing language - that both provisions must apply, for example,. refusal to institute proceedings?

According to the author, position, that both provisions must be objectively identical, violates the rights of the victim, for substantially reduces the victim the right to assert their rights infringed crime. only need to, that the bodies of preliminary proceedings, for example,. They refuse to initiate an investigation or inquiry, then the same body discontinue the proceeding.

On the one hand, the purpose of criminal proceedings is, not only, that no innocent person is punished, but also, perhaps above all, that person should act incurred a penalty for the commission of. So why the legislature and the courts in interpreting the provisions of Article. 55 k.p.k. and Article. 330 k.p.k. restricted / limited ability to protect the victim of its powers?

Both Article. 55 § 1 k.p.k., and in Article. 330 § 2 k.p.k., refers to the re-issue of the refusal to initiate or to discontinue the proceedings, a mistake anyone, the more professionals - judges penalty, You do not need to remind the meaning of the term "or". towards the reminder: quantifier "or" means, that real results are logical reasoning:

Both statements are true;

or only one of the two.

these, means, quantifier that the use of "or" in the aforesaid regulations k.p.k. allows applications, according to which a subsidiary may be brought under indictment refusal to institute proceedings, and does not proceed. Consequently, this position allows for broader protection powers of the victim in the criminal process.

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