There is no doubt that questioning the suspect is a key evidence in criminal proceedings. Sometimes its conduct will be sufficient to conclude the case. Regardless of whether the suspect confesses to the act, explains the circumstances of the case in a manner favourable to him or refuses to give an explanation, the prosecution is in any case obliged to take it into account when assessing the evidence. It becomes problematic when the person to be questioned evades this obligation. If the person fails to appear for questioning despite being summoned to do so, it is possible to order a search or issue a letter of summons. As a general rule, a search for the suspect should be ordered before issuing an arrest warrant, but this is not a necessary condition. What is important is that even before an arrest warrant is issued and the suspect is questioned, an order for pre-trial detention is issued. Once apprehended, the suspect is immediately effectively deprived of his or her liberty and – in simple terms – taken into custody on the basis of an arrest warrant.
GROUNDS FOR ISSUING THE ARREST WARRANT
A arrest warrant can be issued for both the suspect and the accused. It all depends on the stage of the proceedings. In the case of a suspect, the arrest warrant may be issued by the public prosecutor conducting the pre-trial proceedings. Once an indictment has been filed, the court before which the criminal proceedings are pending will be competent to issue the arrest warrant. Furthermore, the case law emphasises that it is also possible to issue the arrest warrant to a convicted person who is in hiding to avoid serving a custodial sentence.
The grounds allowing the issuance of the arrest warrant, prior to conviction, are:
- the issuing of a pre-trial detention order against the suspect (accused);
- that the suspect (accused person) is in hiding.
It is therefore not possible to issue the arrest warrant without first issuing an order for provisional arrest, which will be issued by the district court in whose district the proceedings are conducted. The possibility of issuing the arrest warrant alone would, moreover, be pointless. The arrest warrant provides external information to persons who can help locate the person sought. However, it does not in itself entitle a suspect or defendant to be arrested or detained.
PURPOSES OF ISSUING THE ARREST WARRANT
The purposes of issuing the arrest warrant will vary depending on the stage of the proceedings at which it is issued.
In the case of pre-trial proceedings, the most common reason for its issuance will be the need to question and charge the suspect. It is possible that after the interrogation and presentation of charges, there will be a need to carry out another action with a suspect who has started to go into hiding. Also in such a situation, the public prosecutor’s office will apply to the court for provisional arrest and then issue the arrest warrant.
Similarly, in court proceedings. The reason for proceeding with the arrest warrant may be the accused’s behaviour of not appearing in court, even though the trial will not be held without his/her presence. In such a situation, the accused would have to simultaneously fail to receive court correspondence, fail to indicate an address for service and abandon contact with the court.
In executive proceedings, the purpose to be fulfilled by the arrest warrant is to bring the convicted person to the execution of a custodial sentence. In that case, no order for pre-trial detention is issued, but the basis is the conviction of the court.
It is important to note that the period of pre-trial detention will be the same in each case. It will be 14 days, counting from the day of arrest. This is the main difference between the ‘typical’ provisional arrest order, which we have written about many times on our portal, and the one issued for the purpose of the arrest warrant procedure.
PROCEDURAL SITUATION OF THE SUSPECT
It is worth noting the rather unusual procedural situation of a suspect who may not even know that he is wanted. Although a Polish citizen is obliged to fulfil the obligation to register in Poland, non-fulfilment of this obligation is not sanctioned.
Thus, a situation may arise in which a particular person will not have a place of registration in Poland. In addition, he/she will not know that he/she is wanted. Subsequently, a charging order will be issued, without announcing it and presenting charges to the suspect, due to the impossibility of establishing his address. He will be declared a person in hiding. After this, the public prosecutor will apply to the court for the suspect to be remanded in custody for a period of 14 days and, once this has been decided, he will issue an order to search for him by way of the arrest warrant.
The suspect may not be aware at all that there are any criminal proceedings against him. His or her knowledge of the pending proceedings comes to him or her in an unexpected and surprising manner. The public prosecutor sends the arrest warrant, together with the decision on pre-trial detention, to the Police unit with jurisdiction over the suspect’s last place of residence. Police officers, upon finding the suspect, are obliged to serve him with the pre-trial detention order. Only then does he become aware that proceedings are being conducted against him. However, he does not have time to react, as he is then transported to the relevant detention centre. The reaction of the suspect’s next of kin, who may appoint a defence counsel for the provisional detainee, is crucial here. The authorisation to defend granted by third parties is temporary. It is valid until the first contact between the defence counsel and the provisionally arrested person. This means that the suspect should personally sign the defence authorisation given by him to the appointed defence counsel at the first opportunity.
The suspect should then be questioned by the public prosecutor. After this, it is the prosecutor who decides whether or not to apply to the court for an extension of the pre-trial detention. If such a request is not made, the pre-trial detention should be revoked immediately after the action with the suspect and the arrest warrant should be revoked. It is important that the suspect, during the interrogation, provides his/her residential or registered address. In this way, law enforcement authorities will know where to address summonses in case they need to perform actions with the suspect. In addition, whenever there is a change of address, the suspect is obliged to inform law enforcement of such an event.
UNAPPEALABILITY OF THE ARREST WARRANT
The decision to issue the arrest warrant is not appealable, regardless of who issued it. As mentioned earlier, the arrest warrant is issued after an order for the provisional arrest of the suspect for a period of 14 days. It is the order for pre-trial detention that in theory is appealable. Only in theory, because in fact the suspect only learns that a provisional arrest order has been issued against him after he has been arrested and taken into custody.
In fact, a suspect only receives a pre-trial detention order when he is apprehended. From that moment, he has 7 days to lodge a complaint against the order. Undoubtedly, the suspect is under time pressure, as his situation changes dramatically. Previously, he had no idea of any proceedings being brought against him. Now, in fact, he is deprived of his liberty and has to rely on the help of his relatives, who have the possibility to appoint a defence counsel for him. The defence counsel has the possibility to lodge a complaint, but must also act quickly, as he has seven days to do so from the date of notification of the decision to the suspect. In addition, the defence counsel should also visit the suspect and, if possible, review the case file.
SUMMARY
In conclusion, the issuing of the arrest warrant is undoubtedly helpful for the justice authorities. It makes it easier to establish the whereabouts of the suspect. It is important that the interrogation of the suspect takes place immediately after his arrest. At the same time, the role of the defence counsel is very important, who should see the suspect as soon as possible, as well as have access to the documents of the case file and, if necessary, lodge a complaint against the pre-trial detention order. In the complaint, the defence counsel may invoke the non-fulfilment of the grounds for provisional arrest as well as the issuance of the arrest warrant, as it is accessory to the order for pre-trial detention.
The full article is available in Polish here.
