Commissioner for Human Rights

Due to the resolution adopted by the Supreme Court consisting of seven judges at the end of January 2016 on application from the Commissioner for Human Rights, the defendant who has been acquitted from one or more charges and convicted on the other charges (or a convicted person with respect to whom the proceeding has been partially discontinued) will not incur the financial effects of an unfounded charge and will be reimbursed with the remuneration of a defence council of his own choosing.  To date, some Polish courts have refused to reimburse these expenditures.

The legal status

The Polish criminal proceedings apply the principle of responsibility for the outcome of a trial. In the case where the defendant is acquitted or the proceeding is discontinued, the State Treasury incurs the costs of the trial in cases of public prosecution, since the charge has proved to be groundless. This means that the State Treasury ultimately incurs all the expenditures which it has incurred on a temporary basis (the costs of travels, postal deliveries, announcements, inspections etc.) and  it is also obliged to reimburse unjustified expenditures incurred by the parties – including the expenditures related to the appointment of one defence council. In the case where the defendant is convicted for all the acts he has been charged with, the expenditures incurred  by the defendant for his defence  and covered by him in the course of the proceeding are not subject to reimbursement. The problem has appeared in the case-law of Polish courts in the situation where the defendant has been convicted only on some charges, whereas he has been acquitted on other charges or the criminal proceeding has been discontinued. In its Article 630, the Criminal Procedure Code provides that in such a case the expenditures related to the prosecution are incurred by the State Treasury in their part related to the acquittal or the discontinuation of the proceeding. The legislator has not defined the term “expenditures related to the prosecution”. As a result of this, some courts identified them solely with the expenditures of the State Treasury, whereas other courts identified them with the expenditures of both the State Treasury and those incurred by the parties, including the expenditures related to the appointment of a defence council.

Intervention of the Commissioner for Human Rights

The problem was discerned by the Commissioner for Human Rights. In the light of differences in the interpretation of Article 630 of the Criminal Procedure Code which had appeared in the case-law of general courts, the Commissioner submitted his application for their resolution by the Supreme Court consisting of seven judges.

In the Commissioner’s opinion, Article 630 should be so interpreted as to ensure that the costs incurred by the defendant in relation to the appointment of a defence council are reimbursed to him to the extent to which he has been acquitted or the proceeding has been discontinued. In the Commissioner’s opinion, only such an interpretation of the provision complies with the Constitution. The Commissioner primarily pointed out two constitutional aspects. The first aspect is the principle of social justice, which would be violated if the defendant incurred the costs of a proceeding which has turned out to be groundless. Such an approach would effectively mean a financial punishment of innocent persons – who exercise the right to the presumption of innocence and are subsequently acquitted with a final judgement. Secondly, the Commissioner  referred to the guarantee of the constitutional right to defence, which had been extensively addressed in the case-law of the Polish Constitutional Court (in particular, in the judgement of the Polish Constitutional Court of 26 July 2006, File No. SK 21/04) and the European Court of Human Rights. In the Commissioner’s opinion, a regulation which would provide that, even in the case of partial acquittal or discontinuation of the proceeding, the defendant has not any ground for seeking the reimbursement of the expenditures related to the appointment of a defence council would groundlessly violate the right to defence.

The Attorney General has supported the application of the Commissioner.

The Supreme Court explains the meaning of  “expenditures related to the prosecution”

The Supreme Court considered the application of the Commissioner for Human Rights for the resolution of differences in the interpretation of the law at its sitting on 28 January 2016 (File No. I KZP 16/15) and adopted the resolution providing that the expenditures related to the prosecution referred to in Article 630 of the Criminal Procedure Code also included the expenditures incurred by the defendant in relation to the appointment of one defence council of his own choosing. In consequence, in the case of partial acquittal or discontinuation of the proceeding carried out against him, the defendant may seek the reimbursement of this part of these costs from the State Treasury.

In its justification of the resolution, the Supreme Court extensively addressed the two opposed positions on the interpretation of Article 630 of the Criminal Procedure Code. On the one hand, it cited the arguments used by the courts when they refused to order the reimbursement of the defence council’s remuneration in favour of the partially acquitted defendant – the absence of a provision which would directly establish such a right, the impossibility of specifying in financial terms the extent of the defence lawyer’s workloads corresponding to the particular acts which the defendant has been charged with and the linking of the expenditures related to the prosecution solely with the expenditures of the State Treasury on the basis of the linguistic interpretation. On the other hand, the Supreme Court recalled the position of the Court of Appeal in Wrocław in the case with File No.  II AKz 523/11, providing that a person who has only partially been convicted should be reimbursed the expenditures incurred to pay a defence council of his own choosing to the extent that he has not been convicted. The Court of Appeal followed the historical interpretation of Article 632 of the Criminal Procedure Code (successive amendments showed a liberalisation of the principle of the reimbursement of the expenditures incurred for defence in the case of acquittal – from a complete prohibition of the reimbursement in the Criminal Procedure Code of 1969, through the reimbursement in “justified cases”, to the principle of the reimbursement of the expenditures incurred for one defence layer of own choosing) and the functional interpretation – the defence lawyer’s remuneration would have been lower if unjustified charges had not been pressed against the defendant. The Supreme Court also indicated that the judgement of the Constitutional Court in the case with File No. SK 21/04, which had been cited in the application of the Commissioner for Human Rights, was of importance for the resolution of the legal issue considered.

Moving to the resolution of the legal issue, the Supreme Court began by stating that the linguistic interpretation of the provision of Article 630 of the Criminal Procedure Code did not bring an unequivocal result. In the other regulations on the trial costs, the term expenditures related to the prosecution was absent. In consequence, on the basis of the systemic and functional interpretations, the Supreme Court referred to the content of Article 632(2) of the Criminal Procedure Code, which laid down the principle regulating who incurred the trial costs in the case of acquittal or discontinuation of the proceeding. Under this provision, in this case, the defendant has the right to the reimbursement of the expenditures incurred for one defence council of his own choosing. Similarly as the  Commissioner for Human Rights, the  Supreme Court saw no reason for differentiating the principle of the reimbursement  of costs to the defendant in the case of only partial acquittal, particularly in the context of the responsibility for the outcome of the trial.

The strength of the authority of the Supreme Court.

The implications of the resolution of the Supreme Court consisting of seven judges adopted on 28 January 2016 are far-reaching. First of all, the resolution is another step in the strengthening of the protection of the constitutional principle of the right to defence, which is of particular importance in Poland where the legal awareness continues to be very low. In practice, the understanding of the provision of Article  630 of the Criminal Procedure Code as adopted by the Supreme Court ensures that in the case where the judicial bodies representing the State commit an error with respect to a citizen, the costs of the defence council’s remuneration in this scope will be reimbursed to the citizen. The resolution unifies the principle of the reimbursement of the trial costs throughout the country – the costs of the  defence council’s remuneration will be reimbursed to the partially acquitted defendant, irrespective of which court has considered the case. 

In formal terms, the resolution of the Supreme Court consisting of seven judges is not binding for the lower-instance courts (the power of a legal principle has not been conferred thereto; therefore, it is not binding, either, for other compositions of the Supreme Court). Nevertheless, in practice in the cases which they consider the lower-instance courts  extremely seldom adopt an interpretation of the provision which is different than that of the Supreme Court.