CZYNNOŚCI SPRAWDZAJĄCE PROWADZONE W STOSUNKU DO OSOBY PODEJRZEWANEJ CHRONIONEJ IMMUNITETEM W POLSKIM PROCESIE KARNYM
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Date
2005
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Wydział Prawa i Administracji UAM
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CHECKING OF FACTS EXERCISED IN RESPECT OF A SUSPECTED PERSON ENJOYING IMMUNITY IN POLISH PENAL PROCEEDINGS
Abstract
The issues discussed in the paper relate to the checking proceedings carried out pursuant to
article 307 of the code of penal proceedings in respect of a suspected person enjoying material, formal
and jurisdictional immunity. The said article proposes a different, from the traditional one, typological
approach to the immunity, taking into account a broader aspect of the code of penal
proceedings.
The checking proceedings are carried out before any preparatory proceedings take place;
therefore, properly undertaken actions ensure efficiency of the whole course of proceedings and
proper realisation of the basic principles of a criminal trial. They also serve as a guarantee of the
competences of the participants to the criminal proceedings.
According to article 307 of the code of criminal procedure, there are three possible ways of the
checking procedure: a) request for complementary data (information) to the ones included in the
information of the crime; b) addition of complementary data (information) contained in the information
of a crime, consisting of the hearing of the party providing information in the capacity of
a witness; c) checking the facts by the very organ itself, normally, by way of operational and investigation
tasks.
According to article 307 para. 5 of the code of penal procedure, it is possible to carry out checking
procedures regarding the information possessed by the police, and regarding information or intelligence
as to which a question might arise that a crime had been committed. Checking
proceedings, i.e. a stage clearly separated from the preparatory proceedings, partially realises the
objectives and tasks of the preparatory proceedings, which becomes especially pronounced and significant
when data about people are being collected, as among those data there is also information
about immunity which may have been granted to a given person at a certain time. There are two
possible ways in which the checking procedure may be terminated; 1). by a decision not to instigate
proceedings; or 2). by a decision to instigate proceedings.
The following conclusions have been formulated: material immunities and jurisdictional immunities
disclosed in the course of the checking proceedings result in automatic decisions to reject
the application to instigate preparatory proceedings; 2). the disclosure, in the course of checking
proceedings, of the formal immunity should result in an automatic instigation o f preparatory proceedings,
which is related to the necessity to commence, by an authorised prosecutor, of an action
to start a relevant procedure to procure the permission to enforce law. The above conclusions are
subject to transformations under the public and private claims procedures.
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Ruch Prawniczy, Ekonomiczny i Socjologiczny 67, 2005, z. 4, s. 197-206