The search of premises according to Polish Criminal Procedural Law
Preliminary proceedings will be conducted to determine whether a criminal offense of the Polish Penal Law has been realized. If this is the case, the Office of the public prosecutor and the police acting on his behalf have to secure the existing evidence in the respective matter for the subsequent court proceedings. One of the applied measures is carrying out a search of the premises, where the presence of objects is suspected that could serve as factual evidence in the current investigation.
Usually, the investigation authorities do not announce the search. This leads to a situation where the person affected is being surprised by this measure and do not know how to behave towards the police officers. If the prosecutor knocks on the door of the company, the subsequent examination of company’s own premises might quickly disturb unpleasantly the day-to-day business or even to cause a standstill.
Proceeding of a company investigation according to Polish Criminal Procedural Law
Out of ignorance and due to psychological stress in such situation, the affected persons almost always make mistakes. That is why we want to provide you with the following information a first overview of corresponding rights and obligations that entails a search of business rooms, but also private homes in Poland.
Legal basis for the search
A corresponding search warrant must be presented before the search to the person, whose premises shall be searched. Such search warrant, which must include the substantive area of the search, can be issued either by the court or the prosecutor (Art. 220 § 2 of the Polish Criminal Procedure Code). If there is danger in delay, which means in a situation in which due to the urgency a search warrant cannot be acquired neither from the Court nor the Public Prosecutor, it is sufficient that the investigating officer has a search warrant issued by the head of the corresponding police unit or shows only his service identification (Art. 220 § 3 of the Polish Criminal Procedure Code).
If the police or public prosecutor enters your company’s seat with the aim to search the premises, you should always call a defense lawyer. The lawyer then has the possibility to speak with the investigators and to verify whether the actual search corresponds with the contents of the search warrant or search order. However, a postponing of search activities is usually not achievable. In cases of searches without a search warrant or order it is also important to note the names of the acting persons. Regardless of whether a lawyer is immediately involved, when business premises are being searched, the company’s management must be informed immediately to appoint a contact person for the communication with the investigating officer.
Protocol on the search procedure
In case of searches, it is fundamental to establish a protocol. If the search procedure is carried out without corresponding order, the affected person has the right to claim confirmation of the conducted search from a judge or Public Prosecutor. If this right is being waived, such confirmation will not be delivered with the consequence that a complaint against the search order is then no longer permitted (Art. 220 § 3 of the Polish Criminal Procedure Code). The affected person shall also be instructed that in practice, due to stress related with such situation, a corresponding request is often not being included in the protocol.
Release of evidence
Files, documents or even computer hard drives seized during the search by the investigation officers must be returned voluntary. This means that the affected person, as well as the employees at the company cannot put any resistance and also must not try otherwise to destroy business documents at the last moment. If the persons obligated to hand out the documents fail to comply by this request, they could face a fine in the amount of up to 3,000, – PLN or in exceptional cases also arrest up to 30 days (Art. 287 of the Polish Criminal Procedure Code). In addition, it can be assumed that the search will be accomplished more quickly when handing over the evidences to the investigating officer.
Contact with a defense lawyers after the examination
If during the search no defense lawyer has been involved, this must be made up quickly upon completion of the investigation measure. The defense lawyer with experience in Polish Criminal Law will then work together with you to analyze the situation and to discuss your next steps. Primarily, there is the question whether a complaint against the search warrant shall be filled or not.
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