Fiches Belges

Yes, it is. The criminal proceedings may be taken over from a foreign state in two forms. I. Transfer of criminal prosecution (involves the waiver of jurisdiction by the state on whose territory the crime was committed and the taking over of further prosecution by another state). II. Laying of information in connection with proceedings (submitting a request does not waive jurisdiction over the perpetrator of the crime and does not impose an obligation on the requested State to conduct the proceedings).

I. Transfer of criminal prosecution The Republic of Poland is not a party to the European Convention on the Transfer of Proceedings in Criminal Matters (15/05/1972, Strasbourg). There are provisions on transfer of criminal proceedings in bilateral treaties the Republic of Poland is bound by. Transfer of proceedings is also possible on the basis of the reciprocity principle (on the basis of provisions of the Criminal Procedure Code). II. Laying of information in connection with proceedings - Article 21 of the European Convention on Mutual Assistance in Criminal Matters (20/04/1959, Strasbourg), - Article 11 of the Second Protocol to the European Convention on Mutual Assistance in Criminal Matters (20/04/1959, Strasbourg), - Article 7 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (29/05/2000, Brussels).

I. Transfer of criminal prosecution The Polish authority competent to receive and accept the foreign authority’s request for taking over criminal proceedings is central authority – the Minister of Justice of the Republic of Poland. If the Minister of Justice decides to take over criminal proceedings, the competent prosecutor’s office (the prosecutor’s office located at the place of the domicile or residence of the suspect) initiates the criminal proceedings. If the bilateral treaty provides the direct transfer of prosecution, the authority competent to receive and accept the foreign authority’s request for taking over criminal prosecution is the circuit prosecutor’s office (Prokuratura Okręgowa) located at the place of the residence or stay of the suspect. II. Laying of information in connection with proceedings The Polish authority competent to receive and accept the foreign authority’s request for taking over criminal proceedings is central authority- the Minister of Justice of the Republic of Poland, but the foreign requests can also be addressed directly to the judicial authorities – the circuit prosecutor’s office (Prokuratura Okręgowa) located at the place where the punishable act has been committed, of the occurrence of the effects or of the residence or stay of the suspect. If the Minister of Justice as the Polish receiving authority decides to take over criminal proceedings, the competent prosecutor’s office (the public prosecutor’s offices located at the place where the punishable act has been committed, or of the occurrence of the results, or of the residence or stay of the suspect) initiates criminal proceedings. The request for taking over criminal proceedings addressed directly to the circuit prosecutor’s office (Prokuratura Okręgowa) will be accepted and the decision on such request will be made by competent for the criminal matter the public prosecutor’s office located at the place where the punishable act has been committed, or of the occurrence of the effects, or of the residence or stay of the suspect.

I. Transfer of criminal proceedings It depends on each bilateral treaty, which language regime it provides. II. Laying of information in connection with proceedings The Republic of Poland has made a declaration pursuant to Article 16 par. 2 of the European Convention on Mutual Assistance in Criminal Matters. According to that declaration, the requests and other documents being transmitted shall be accompanied by a translation into the Polish language or into an official language of the Council of Europe (English, French).

There are no specific deadlines set.

I. Transfer of criminal prosecution a. Special requirements The criminal proceedings may be taken over from a foreign state, if the act, for which it is conducted, was committed outside the territory of the Republic of Poland and if it is a crime also under the law of the Republic of Poland (full dual criminality- the act must be any crime under the criminal law of the Republic of Poland, unless the bilateral treaty allows for transfer of prosecution also in cases involving violations of law, which are crimes under the law of the requesting party and only misdemeanours under the law of the requested party). The prosecution must not be time-barred. The criminal proceedings have to be already pending in the requesting state and the suspect must be a Polish national or has residence or stay on the territory of the Republic of Poland. Transfer of criminal prosecution involves the waiver of jurisdiction by the state on whose territory the crime was committed and the taking over of further prosecution by another state. It depends on each bilateral treaty, if and under what conditions is it possible to resume proceedings completed in the state that took over the prosecution. Other requirements stem from the bilateral treaties. Reciprocity principle may be the basis for the transfer of proceedings in cooperation with countries with which Poland has no treaties, but only on the condition that those countries ensure reciprocity in relations with Poland. In such a situation, the basis for cooperation for Polish authority are the provisions of the Polish Code of Criminal Procedure. The Polish authority competent to receive and accept the foreign authority’s request for taking over criminal proceedings based on the principle of reciprocity is central authority – the Minister of Justice of the Republic of Poland. b. Other useful information Following the transfer of the criminal prosecution to the Republic of Poland, the proceedings are conducted in the Republic of Poland from the beginning regardless of the state of the criminal proceedings in the transferring state. However, evidence obtained by foreign authorities in compliance with the law of this state may be used in criminal proceedings that have been taken over in the same way as if it was obtained by an authority of the Republic of Poland involved in criminal proceedings. The grounds to take over the proceedings: - the act, for which the criminal proceedings is conducted in the requesting State, is criminal also under the law of the Republic of Poland, - the act, for which the criminal proceedings is conducted in the requesting State, belongs to the competence of authorities of the Republic of Poland, - the takeover of the criminal prosecution is in the interest of justice of the Republic of Poland (it is necessary to consider especially: • the seriousness of a crime, • the expected penalty, • the personal situation of the suspect against whom the criminal proceeding is conducted, • the nature of the criminal case). The grounds for refusal: - lack of the interest of justice in the transfer of criminal proceedings, - lack of double criminality, - ne bis in idem principle, - the criminal prosecution is statute-barred. II. Laying of information in connection with proceedings a. Special requirements The criminal proceedings may be taken over from a foreign state, if the act, for which it is conducted, is criminal also under the law of the Republic of Poland (full dual criminality) and if it belongs to the competence of authorities of the Republic of Poland. The criminal proceedings have to be already pending in the requesting state. Submitting a request does not waive jurisdiction over the preparator of the crime and does not impose an obligation on the requested State to conduct the proceedings. b. Other useful information Following the transfer of the criminal proceedings to the Republic of Poland, the pre-trial proceedings are conducted in the Republic of Poland from the beginning regardless of the state of the criminal proceedings in the transferring state. However, evidence obtained by foreign authorities in compliance with the law of this state may be used in criminal proceedings that have been taken over in the same way as if it was obtained by an authority of the Republic of Poland involved in criminal proceedings. The grounds for refusal: - lack of double criminality, - lack of jurisdiction, - age of criminal responsibility, - ne bis in idem principle, - the criminal prosecution is statute-barred.