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Last update: 11-06-2007
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Compensation to crime victims - Poland

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TABLE OF CONTENTS

1. Obtaining compensation in the form of damages from the offender 1.
1.1. What are the conditions for making claims for damages in the trial against the offender? 1.1.
1.2. How should I put forward the claim for damages, and to whom? 1.2.
1.3. When should I do it? 1.3.
1.4. Can I get legal assistance before and/or during the proceedings? 1.4.
1.5. How should I present my claim? What evidence will I be required to present in support of my claim? 1.5.
1.6. Are there other possibilities to obtain damages from the offender (compensation order)? 1.6.
1.7. If I am awarded damages by the court, is there any special assistance available to me as a crime victim for the enforcement of the judgment against the offender? 1.7.
2. Obtaining compensation from the state 2.

 

1. Obtaining compensation in the form of damages from the offender

The criminal law and criminal proceedings reform in 1997 significantly changed the status of the victim in criminal and preparatory proceedings. It involved a new philosophy of criminalisation, which may be expressed in saying that one of the most important aims of the criminal proceedings is to solve the conflict between the offender and the victim, resulting from offence committed against the latter. This conflict may be solved or considerably alleviated if the damage caused to the victim is compensated for.

1.1. What are the conditions for making claims for damages in the trial against the offender?

Article 39 item 5 of the Polish Criminal Code provides for the obligation to compensate for the damage, being one of the possible penalties. This obligation refers to both the loss (damnum emergens) and lost benefits (lucrum cessans). The fact that the victim has suffered damage is the fundamental condition for claiming damages. Moreover, compensation for moral injury, i.e. losses in non-material interests, is also possible.

As is known, pursuant to Article 299 of the Code of Criminal Procedure, the victim is a party to the preparatory proceedings. This provision implies a number of significant consequences for requesting the production of individual evidence, participating in evidence produced and lodging any requests provided for by the law, which are beneficial to the victim. It is crucial for the proper shape of the proceedings at subsequent stages.

In order to support his or her rights in the judicial proceedings, the victim may assume the role of auxiliary prosecutor (Articles 53 – 58 of the Code of Criminal Procedure), alongside the public prosecutor (accessory auxiliary prosecutor) or in place of the public prosecutor (subsidiary auxiliary prosecutor). With respect to privately prosecuted offences, the victim may act as a private prosecutor (Articles 59 – 61 of the Code of Criminal Procedure). Finally, in order to make pecuniary claims, the victim may join a civil action to the criminal proceedings.

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The civil claim for damages against an offender makes a separate issue. The material grounds for this kind of proceedings are the provisions of the Polish Civil Code concerning tortious liability (Articles 415 – 449).

The provision that a person who is guilty of causing damage to the other person is obliged to compensate for this damage (Article 415 of the Civil Code) is a general rule. The provisions concerning torts contain detailed regulations on the liability of minors under the influence of alcohol or intoxicants. They also contain regulations on the liability of persons supervising or responsible for their subordinates etc. Article 444 of the Civil Code regulates the liability for personal injuries or disturbance of health. Compensation may be claimed for the loss suffered (Article 445 of the Civil Code) and for the death of the injured (Article 446 of the Civil Code). Article 448 of the Civil Code contains the detailed procedure for claiming compensation for infringed personal interests, referred to in Article 23 of the Civil Code.

It needs to be added that the perpetrator’s guilt, being the condition of making claims for damages, has a slightly different scope in the civil law and in the criminal law; this may influence the choice of the method employed for claiming damages. Also the limitation periods for claims are different in the civil law (much longer) and in the criminal law.

1.2. How should I put forward the claim for damages, and to whom?

Detailed provisions on this criminal penalty are contained in Article 46 of the Criminal Code. The legislator considers compensation for damage resulting from an offence causing death, serious detriment to health, disturbance of the functioning of a bodily organ or disturbance to health, an offence against safety in traffic or an offence against the environment, property or business transactions to be the integral part of a judgment on the offender's criminal liability. A judgment ordering compensation for damage caused as a result of an offence is considered to be an obligation of the court if the victim or other person entitled (e.g. closest relative in accordance with the Criminal Code) lodges a motion for issuance of this kind of a judgment. Such a motion should be lodged directly in the court in the course of a hearing. There is no problem if the victim wishes to lodge a motion already in the preparatory proceedings, yet it is the court that decides on its effectiveness in the concluding judgment.

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In such a case, the court adjudicates (obligatorily) on the obligation to compensate for the damage in whole or in part. The court may not refuse to impose this obligation if the offender's guilt and the damage caused have both been proved. In case of doubts concerning the scope of the damage caused, the court should make suitable arrangements in this respect.

Pursuant to Article 46 of the Criminal Code, in respect of the obligation to compensate for damage, the provisions of civil law on prescription of claims and the possibility to adjudge an annuity do not apply. This solution should be considered beneficial for the victim, bearing in mind that limitation periods for sentencing are, especially with regard to the mentioned list of offences, longer than they are in the civil law.

Frequently, especially after a longer period of time, it is not possible to exactly assess the scope of damage resulting from an offence. Article 46 (2) of the Criminal Code provides for the possibility of deciding on a supplementary payment to compensate the victim for any serious detriment to health, disturbance to the functioning of the body or disturbance to health. The decision on a supplementary payment also depends on a motion from the victim.

It is important from the point of view of the future compensation for the victim that a public prosecutor informs the victim that a prosecution is being brought. The victim should be informed of his rights concerning pecuniary claims and in appropriate cases of his right to declare that he is acting as an auxiliary prosecutor. Thus victims should be sufficiently notified by the investigation authorities of their rights.

There is an indissoluble link between these provisions and Article 415 (6) of the Code of Criminal Procedure, which provides that if the accused is convicted or the proceedings are conditionally discontinued, in cases specified in law, the court shall decide on a supplementary payment or impose an obligation to compensate for the damage. Para. 5 of this Article grants an even more extended possibility to the court, since if the accused is convicted or the proceedings are conditionally discontinued, the court may adjudicate also ex officio on damages for the victim, unless the law stipulates otherwise.

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It is obligatory to compensate for damage when the probation instrument of conditional discontinuance of the proceedings is applied. Pursuant to Article 67 (3) of the Criminal Code, in case of a conditional discontinuance of the criminal proceedings, the court must oblige the offender to compensate for the damage.

It is optional to compensate for the damage when the execution of a custodial sentence or of a fine is conditionally suspended. In that case, pursuant to Article 71 (2) of the Criminal Code, a court may order the convicted person to compensate for the damage unless it passed the sentence provided for by Article 46 of the Criminal Code.

The legislator aims at solving the conflict arising from the offence. The aim of the prosecution and judicial proceedings should be to settle the litigation amicably, inter alia by means of mediation procedures. If the victim and the offender are reconciled, or the damage is compensated for or the victim and the offender agree on the way of compensating for it, the court may apply the extraordinary mitigation of punishment. Even if it declines to pass sentence, the court may make a criminal compensation order, if the objective pursued can be satisfied in this way.

Where Article 46 of the Criminal Code is not applicable and the prosecutor filed a motion for a summary conviction, the court may make the admittance of the motion conditional on compensation for the damage in whole or in part (cf. Article 335 of the Code of Criminal Procedure).

As is known, pursuant to Article 299 of the Code of Criminal Procedure, the victim is a party to the preparatory proceedings. This provision implies a number of significant consequences for requesting the production of individual evidence, participating in evidence produced and lodging any requests provided for by the law, which are beneficial to the victim. It is crucial for the proper shape of the proceedings at subsequent stages.

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The victim may assume the role of auxiliary prosecutor (Articles 53 – 58 of the Code of Criminal Procedure), alongside the public prosecutor (accessory auxiliary prosecutor) or in place of the public prosecutor (subsidiary auxiliary prosecutor). With respect to privately prosecuted offences, the victim may act as a private prosecutor (Articles 59 – 61 of the Code of Criminal Procedure). In order to make pecuniary claims the victim may join a civil action to the criminal proceedings.

Under Article 12 of the Code of Criminal Procedure, claims resulting from an offence may be recovered either in civil proceedings, or in cases provided for by the law (i.e. the Code of Criminal Procedure), in criminal proceedings. Adhesion proceeding equivalent to the French "partie civile" procedure is an instrument in criminal procedure and operates under the Code of Criminal Procedure, but its purpose is to decide on the civil plaintiff's civil law claims against the accused person. Bringing a civil action in criminal proceedings creates a litigation pending (lis pendens) situation and is a condition that precludes civil proceedings. And on the contrary – litigation pending before the civil court creates an impediment to hearing the civil action in criminal proceedings and the case will therefore not be heard or will be dropped.

Similarly, a valid court’s judgment on the victim's claims in criminal proceedings creates a res judicata situation that cannot be relitigated and is a condition that precludes the case from being re‑examined in civil proceedings. However, when the adjudicated damages do not cover the entire loss or do not adequately compensate for the wrongdoing, the victim may sue for additional damages in civil proceedings (Article 415 of the Code of Criminal Procedure).

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1.3. When should I do it?

The motion to compensate for the damage pursuant to Article 46 of the Criminal Code may be lodged by the victim together with the notification of an offence in preparatory proceedings or after bringing an indictment by the prosecutor. Once the victim has been identified as such, he may file a motion of this kind in the court; he/she must be informed of the possibility by the authorities conducting the proceedings.

As far as the time for bringing civil action in criminal proceedings is concerned, the victim may bring a civil action against the accused person in order to make pecuniary claims resulting directly from an offence, until the commencement of legal proceedings in the main hearing. It needs to be stressed here that legal proceedings commence at the moment of reading of the indictment.

The action must be brought in the court with jurisdiction in criminal cases. The civil action may be brought already in the course of preparatory proceedings. In such an event the authority in charge of the proceedings attaches the action to the case file and the court decides on its admittance. The date for making a claim is then considered to be the date on which the action was brought. Parallel to entering the action in the preparatory proceedings, the victim may request securing the claim. A prosecutor must decide on this issue, and his/her decision may be appealed against in the court.

Until the commencement of the legal proceeding the closest relatives may bring an action in the event of the victim's death. If the victim dies after the action was brought (so that the civil plaintiff also dies), the closest relatives may assume the rights of the deceased and recover the claims due with respect to him/her (cf. Article 63 of the Code of Criminal Procedure).

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If the criminal court refuses to admit the action, the victim may, within a time limit of 30 days from the date of refusal, apply for the action to be referred to the civil court.

Only in cases of conviction or conditional discontinuance of the proceeding, the court must decide on the merits of the claims in the civil action by admitting or rejecting the action in whole or in part. In case of a different decision, the court must leave the action unheard. In that event the victim may take his claim to the civil courts.

The court may decline to adjudicate on the obligation to compensate for the damage. If so, the security is cancelled, but the victim may bring an action in the civil court within a mandatory time limit of three months from the validation of the judgment. If an action is brought for compensation for damage, the security remains valid, unless the court decides otherwise in the civil proceedings (Article 294 of the Code of Criminal Procedure).

The role of auxiliary prosecutor also enables the victim to assert his/her lawful rights (including pecuniary and compensative) by assisting the prosecutor, who, as the name itself suggests, represents first and foremost the public interest.

If an accusation was brought by the public prosecutor, the victim may make a statement (in a written or an oral form, with the record) that he/she is to assume the role of auxiliary prosecutor until the moment of commencement of the proceeding in the main hearing. Other victims of the same offence may join the proceedings until the commencement of the proceedings in the main hearing (thus within the same time span).

If the public prosecutor decides not to prosecute, the auxiliary prosecutor does not thereby lose his/her rights.

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The death of the auxiliary prosecutor does not preclude further proceedings. The closest persons may join the proceedings in the role of accessory auxiliary prosecutor at any stage of the proceeding. As far as subsidiary auxiliary prosecutor is concerned, the closest person may join within the period of three months.

The victim may assert his/her rights by bringing a private prosecution in the case of offences prosecuted by private prosecution. Other victims of the same offence may join the pending proceedings until the commencement of legal proceedings in the main hearing. If the public interest so requires, the prosecutor may commence the proceedings or join the pending one. In practical terms this refers to situations in which it is not known at the very beginning of the proceedings whether the offence is to be prosecuted by public or by private prosecution (e.g. whether the act constitutes an offence to which Article 156 of the Criminal Code applies, or just a breach of personal inviolability of another individual).

Compensation for the damage may be closely related to the preventive measures provided for in the Code of Criminal Procedure, if the accused or other person deposits bail stated for a sum of money, in the form of cash, securities, a bond or a mortgage (a bail on property is envisaged as a preventive measure applied in order to guarantee the proper course of the proceedings). The property or sum of money constituting bail that has been forfeited or collected is transferred or paid in to the State Treasury. The victim then has priority in satisfying his claims resulting from the offence if damage cannot be compensated for by other means.

When the victim claims compensation for the damage caused by an illegal act, prior security on property for the purpose of the future obligation to compensate for the damage is as important as the very act of making a claim for compensation pursuant to Article 46 of the Criminal Code.

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1.4. Can I get legal assistance before and/or during the proceedings?

An attorney for the civil plaintiff may be appointed, according to the rules provided for in the civil procedure. An attorney for the auxiliary prosecutor and for the private prosecutor may appear in the proceeding.

In the case of an offence subject to a fine or forfeiture of material property, or to imposition of the obligation to compensate for damage or to pay supplementary payment, these penalties may be secured ex officio by levying on the property of the accused (Article 291 of the Code of Criminal Procedure). Security is obtained as provided for in the Code of Civil Procedure. There is a possibility of seizing movables or other property rights and of imposing a prohibition on selling and encumbering real estate. This prohibition must be disclosed in the land and mortgage register or, where no such register exists, indicated in the set of documents. As far as it is possible, real property or a firm owned by the accused may be put into receivership.

The court may decline to adjudicate on the obligation to compensate for the damage. If so the security is cancelled, but the victim may bring an action in the civil court within a mandatory time limit of three months from the validation of the judgment. If an action is brought for compensation for damage, the security remains valid, unless the court decides otherwise in the civil proceedings (Article 294 of the Code of Criminal Procedure).

The Code of Criminal Procedure provides for the possibility of securing material claims of the victim of an offence even at an earlier stage of the proceedings (Article 295). Thus the Police may effect a provisional seizure of movable property belonging to the suspected person, if there are grounds to fear that he might remove them in a manner which is detrimental to the victim of an offence. The provisional seizure requires approval by an order from the state prosecutor, issued within five days.

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1.5. How should I present my claim? What evidence will I be required to present in support of my claim?

As far as a criminal damages order (Article 46 of the Criminal Code) is concerned, the victim should lodge a motion for it and the court should examine the motion and come to its own conclusions concerning the assessment of the damage suffered by the victim; it does not, however, leave the victim without a role to play; statements by the victim may be of use in this respect.

In case of a civil action, the value of the object of litigation should be assessed, in accordance with the Code of Civil Procedure. The court must decide to stay proceedings on the civil action joined to the criminal proceedings if the evidence disclosed in the course of the hearing is not sufficient for a judgment on the action and obtaining supplementary evidence would cause a considerable extension of the proceedings. In a civil action, the victim is required to play a greater role.

1.6. Are there other possibilities to obtain damages from the offender (compensation order)?

In cases concerning offences subject to examination under summary proceedings (Article 469 of the Code of Criminal Procedure), i.e. roughly speaking minor offences, the court, on the basis of the material gathered in the preliminary proceedings, may issue a criminal order (Article 500 of the Code of Criminal Procedure and subsequent Articles). When issuing the criminal order, the court must adjudicate in whole the claim that was brought in the civil action or the damages pursuant to Article 415 (5) of the Code of Criminal Procedure.

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1.7. If I am awarded damages by the court, is there any special assistance available to me as a crime victim for the enforcement of the judgment against the offender?

A court which has adjudicated a claim for property damage must attach an enforcement clause to a decision subject to execution (Article 107 of the Code of Criminal Procedure) at the request of the person entitled. A decision imposing an obligation to compensate for the damage is considered as well a decision on claims for property damage, if it could be enforced by execution under the Code of Civil Procedure. An execution clause may be also attached to a settlement concluded before a court.

2. Obtaining compensation from the state

On 21 September 2005 the Act on State Compensation for Victims of Certain Intentional Offences entered into force. Compensation is a pecuniary consideration paid from the budget of the State to the victims of some intentional crimes or to their closest relatives. "Victim" means a natural person (a citizen of the Republic of Poland and of any other Member State) who, as a result of an intentional crime committed with the use of violence, died or suffered a disturbance of the functioning of a bodily organ or disturbance to health as provided for in Article 156 (1) and 157 (1) of the Criminal Code.

The Acts covers intentional crimes committed only in the territory of the Republic of Poland. The Act introduced a principle of subsidiarity of State compensation, which means that it is granted only when the eligible person may not obtain it from any other source.

Compensation may be awarded irrespective of whether the offenders have been identified, accused and/or convicted.

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Granting of the State compensation does not release the offender from his obligation to compensate for the damage nor does it limit the victim's right to claim compensation from the offender in court proceedings.

Article 3 of the Act contains a strictly defined catalogue of reimbursed costs: these may only be lost earnings or other means of subsistence, medical expenses or funeral expenses. Losses in material interest and compensation for moral injuries are not covered. The maximum possible amount of the compensation was set at PLN 12 000.

Applications for compensation must be made within a deadline of two years from the commission of a crime.

Another condition for obtaining the compensation is institution of criminal proceedings. Situations where the criminal proceedings were not instituted because there was an event precluding them, e.g. the death of the offender, are treated on an exceptional basis. But the compensation is due if the criminal proceedings instituted are discontinued on the following grounds:

  • no offence was committed or there is insufficient evidence to show that an offence was committed;
  • the action in question does not constitute an offence or the person responsible has not committed a crime under the law;
  • the impact on society of the action in question is negligible;
  • criminal proceedings on the same offence committed by the same individual have been validly terminated, or proceedings instituted previously are pending;
  • no complaint has been lodged by an authorised prosecutor;

or if after the institution of legal proceedings the court, having established the circumstances provided for in Article 17 (1) item 1 and 2 of the Code of Criminal Procedure, acquits the accused.

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Should it be ascertained that there were no grounds for compensation that has been paid, once the criminal proceedings have been discontinued or the accused has been acquitted, Article 13 (1) of the Acts provides for an obligation to repay the compensation.

The authority deciding on granting the compensation and at the same time disbursing financial means from the State budget is a district court.

Compensation application forms are available for an applicant's convenience.

The assisting authority in the territory of Poland is the district public prosecutor.

A victim of an offence may claim compensation for damage caused by a public or a local government official while carrying out his/her duties (Articles 415 – 421 of the Civil Code). In some cases liability is shared between the State Treasury and a local government entity if the offence was committed while performing duties delegated by the central government. On 18 December 2001, the Constitutional Court held that Article 418 of the Civil Code, which considerably limited the possibility of claiming damages from the State, was invalid as contrary to the Constitution.

The Polish Punishment Execution Code (Article 43 (1), (2) and (3)) provides for a possibility to grant assistance to victims of offences and their families from the Post-Penitentiary Assistance Fund, administered by the Minister of Justice. It is a sui generis non-repayable assistance from the State, which is not included on account of future compensations. Such assistance is granted directly by a president of a competent court or authorised judges and professional probation and supervision officers. Indirectly, such assistance may be granted by a non-governmental organisation, which obtained means from the fund for the assistance to victims of offences, and their families. The assistance particularly consists in granting cash benefits, covering the expenses for purchase of food, medicines, garments, rent payments or covering the cost of specialised legal or psychological advice.

« Compensation to crime victims - General information | Poland - General information »

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Last update: 11-06-2007

 
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