Legal representation in the preparatory proceedings in a criminal case

The provision of Article 87 of the criminal procedure code states that the party, that is not the accused (a suspect), may appoint an attorney-in-fact whereas a person, who is not a party in the pending proceedings, may indeed appoint an attorney-in-fact but exclusively in the case when it is required in order to secure the interest of such a person within the framework of the pending proceedings. We may differentiate the so called general power-of-attorney – to serve legal representation in a criminal case and a specific power-of-attorney to conduct relevant legal actions within the framework of the pending proceedings, for instance, the power-of-attorney to issue cassation. Appointment of an attorney-in-fact in the case of the criminal procedure  means empowerment of the attorney-in-fact to act throughout the whole criminal procedure. That also covers actions after the court judgement becomes enforceable, for instance, the petition for resumption of criminal proceedings.

The wronged party may appoint an attorney-in-fact in the preparatory proceedings, at the initial stage of the judiciary proceedings, and when the wronged party acts in its capacity of a subsidiary prosecutor or a civil plaintiff.

An attorney-in-fact may also file a crime notice, a declaration of willingness to act in the trial as the subsidiary auxiliary prosecutor, a private deed of indictment or a claim under an adhesion procedure. It is mandatory for the wronged party to appoint an attorney-in-fact when the wronged party intends to file its own deed of indictment in a criminal case, in respect of which a public prosecutor has issued a deed of indictment.
The fact of instituting the criminal procedure in a criminal case, and most of all, the effective criminal investigation in pursuit of the truth, and convicting an offender in a fair trial, and restorative justice as well as repairing the harm of a crime remain the key issues from the point of view of vital interests and rights of the wronged party (a crime victim). The binding criminal procedure code and related regulations allow for extensive actions to be undertaken by the wronged party, which is also the case with the wronged party acting in its capacity as the subsidiary prosecutor in a trial.
Under the Polish criminal procedure, filing a complaint with the court by an entitled entity (a prosecutor) is the mandatory precondition for the court proceedings to be instituted. In practice a deed of indictment is a kind of a complaint, the so called a principal complaint,  that is the most often used and well-rooted in public awareness. The catalogue of entities entitled and empowered to file a deed of indictment and support it before the court will vary depending on the mode of the criminal prosecution on a case-by-case basis. In the case of a public complaint-based criminal offence (prosecuted in result of a public deed of indictment), a competent authority (a public prosecutor in most of the cases) will be such and entitled and empowered entity. This will not, however, exclude the wronged party (a crime victim) to act in that capacity, provided that certain preconditions set out in the act of law have been met. In the case of a private complaint-based criminal offence (prosecuted in result of a private deed of indictment), the wronged party will always be entitled and empowered to file a deed of indictment with the court. The wronged party, that is acting in the criminal proceedings to the extent of filing a deed of indictment or supporting it, will be called a private prosecutor or a subsidiary prosecutor (subsidiary or auxiliary). The exact and literal meaning of a private prosecutor (as well as a private deed of indictment) will normally apply to a private complaint-based criminal offence. Within the framework of the public complaint-based criminal proceedings, possible action of the wronged party in its capacity of a prosecutor will be subsidiary in its nature (it will be auxiliary if the wronged party just supports a public prosecutor and its public deed of indictment and it will be subsidiary if that is the wronged party that independently files a deed of indictment and supports it).

The wronged party files a deed of indictment in a criminal case prosecuted in result of a public deed of indictment

The public complaint-based mode of prosecution prevails in the Polish legal system and is connected with the so called rule of formality. It is related with the absolute obligation of competent state authorities to prosecute criminal offences. For a public prosecutor it means the obligation to file a deed of indictment with the court and support it in the course of pending trial. It may, however, be the case that the investigation authorities (preparatory proceedings) will not find the constituent elements of a criminal offence and will discontinue the proceedings or will refuse to institute the proceedings regarding a specific case. Should it be the case, the wronged party may raise objection to the decision of the competent authorities. In specific cases, the wronged party may be entitled and empowered to file a deed of indictment on its own and support it before the court, which may also be the case with a criminal offence prosecuted in result of a public deed of indictment.

In case a prosecutor issues the decision to refuse to institute the preparatory proceedings or to discontinue the same, the wronged party may lodge a complaint abut such a decision to a competent court. Jf the court finds such a complained decision to be a misconduct, the decision is revoked by the court that announces the grounds for revoking it. In case it is necessary, the court may also indicate action, that according to the assessment of the court, must be undertaken as well as the findings that need to be clarified. Such instructions become enforceable by the competent authority that conducts or supervises the preparatory proceedings (a public prosecutor). If, having completed the action indicated by the court, the prosecutor reissues the decision to refuse to institute the preparatory proceedings or to discontinue the same, the wronged party will be entitled and empowered to file a deed of indictment  with the court on its own. Such an entitlement is, however, only vested in the wronged party that previously lodged the said complaint, excluding other possible victims found in a case. That is when the wronged party is referred to as the subsidiary prosecutor and the deed of indictment filed by the subsidiary prosecutor is referred to as the subsidiary deed of indictment.
The Polish criminal law and related regulations govern the categories of private complaint-based criminal offences prosecuted in result of a private deed of indictment.

The private complaint-based criminal offences inter alia include: the offence causing minor health impairment, slander, insult, violation of bodily integrity.

The private complaint-based offence requires submission of a private deed of indictment for such an offence to be prosecuted. The deed of indictment is drawn up by the private prosecutor or the attorney-in-fact (by a barrister or a counsellor-at-law).