The penal measure of a prohibition on being in certain communities and locations, on contacting certain individuals or on approaching certain individuals or
on leaving a specific place of residence without the court’s consent, evidently restricts the liberty of a person sentenced. The said restriction most of all serves to implement the preventative function of penal law, particularly the protection of the victim against the repeat victimisation. At the same time, however, implementing this measure interferes with the victim’s life. Insofar as the restriction of the perpetrator’s liberty is in this case fully justified, ignoring the opinion of the victim in decision-making process pertaining to implementation of the discussed legal measure does not meet the constitutional criterion of proportionality.

As of 27 November 2017 the deadline passed by which the European Union Directive 2013/48/EU on the right of access to a lawyer should have been implemented by the Member States in their respective legal systems. Poland completed the said responsibility only ostensibly, for no legal norms which regulate the standard of the right to formal defence contained in Polish Code of Criminal Procedure have been amended. This very situation makes it necessary to consider whether the norms of the directive in question may cause the so-called direct effect in Poland’s domestic legal system, particularly: whether prosecuted individuals may directly invoke the directive in order to, based on its content, seek the assistance of a lawyer in the course of criminal proceedings. Therefore, it stands to reason that, at least in relation to some of the competences envisioned in the directive, such eventuality exists, whereas in remainder of the cases the judicial bodies are obliged to interpret the respective norms of the Code of Criminal Procedure in pro-EU manner, thereby
elevating the standard of right to formal defence present in Polish criminal proceedings. Nonetheless, the real transposition of this directive should be postulated, since invoking its direct effect cannot exempt a Member State from implementing it in accordance with EU treaties as a way to harmonize domestic legal systems.

The aim of this work is to establish to what extent discrepancies of substantive misdemeanour law (relating to criminal law), which stem from simplification of responsibility rules, impact the position of victim. There are no general rules and principles relating to formation of the position of victim in either criminal law
or misdemeanour law. Only by analysing particular regulations of the both respective codes allows one to reconstruct the status of victim and confronting it on the plain of the two responsibility regimes in question. The said confrontation reveals far-reaching differences within the scope of victim’s position in substantive regulations of misdemeanour law, some of which weaken the victim’s position, while other – strengthen it. Although those differences vary to their weight, yet it seems that regulations restricting the presence of the figure of victim are more significant – they genuinely decrease the competence of a person to whom the harm was made. Amongst the said regulations, first and foremost, have to be counted those that relate to possibility of ruling compensatory penal measures, as well as regulations defining the periods of limitation (aside from other discussed regulations). The assumed dual model of responsibility within this scope, in some cases, compromises the principle of equality before the law enshrined in Article 32 paragraph 1 of the Constitution of the Republic of Poland.

The author analyses and compares the normative approaches to the participation of the suspected and victim in proceedings for using preventive measures in criminal procedure. While comparing regulations within the scope of his interest published in the Code of Criminal Procedure of the year 1928, 1969, and 1997, the author emphasizes the necessity of undertaking analyses through the prism of regulations included in Mental Health Act. He also indicates the necessity to protect the rights of the suspected and victim not only during the preparatory proceedings, but most of all during the proceedings for using preventive measures. He points to the fact that the prosecuted person, who has been charged with a crime, ought to be a subject to special protection stemming from
his or her state of mental health. He postulates that in the course of pre-trial hearing lead in accordance with Article 354 of the Code of Criminal Procedure, the participation of the parties – including the suspected person – should be treated as a rule, and only in exceptional cases the absence of the suspected with mental illness should be allowed. The author assesses negatively the regulation included in Article 354 of the Code of Criminal Procedure, which allows for using preventive measures against the suspected person even when a court appointed psychiatrists claim that his or her participation in proceedings is
unnecessary. He compares this regulation to the operations of “kangaroo courts”.

The subject of considerations is an attempt to describe and assess the institution of cessation of prosecution, resulting from reaching an agreement, as reaction to crime. The effective consensus-driven approach ought to be aimed at combining court instruments and values with the axiological basis of agreement-based litigation (namely, principle of restorative justice), and also with legal measures which allow to mete out a due penal reaction or, frequently, the cessation of prosecution. In case of proceedings regarding misdemeanours, where there is a possibility of eliminating the consequences of the crime solely by compensatory actions within victim-perpetrator relation, the state ought to waive the execution of ius puniendi. What should constitute the limit of waiving the right to punish is a combination of circumstances such as: negligible degree of social harm, reaching a plea agreement that includes the manner of compensation, along with executing thereof. Then, the sufficient reaction to crime is redressing damage or compensation for the harm suffered and the prosecutor’s decision to cease prosecution. The stage of judicial proceeding does not have to and should not be merely a forum for reaching and executing court agreements. The described variant of cessation of the prosecution combines instrumental values, such as the promptness and cost-effectiveness of proceedings with non-instrumental ones, such as due process and implementation of restorative justice. Through only partial waiver of the trial subject implementation, cessation of the proceedings may constitute a compromise between legalistic values and those of judicial opportunism.

The issues related to private evidence and documents in Polish criminal proceedings have for a long time been providing an impetus for many debates and disputes. In his text, the author analyses the opinions hitherto expressed in legal doctrine, and based on them he indicated how, in his opinion, the notions of “private evidence” and “private document” ought to be understood in accordance with the Code of Criminal Procedure. To this aim, he commences his consideration with an analysis of the notion of “evidence”, while stressing that it needs to be distinguished from such terms as “[a piece of] information” or “trace”. Further on, he discusses the distinction into “public [official]” and “private” evidence, and also presents his own definition of “private evidence” sensu stricto and sensu largo. Subsequently, the author proceeds to consider the notion of document in legal system, in particular in penal legal system, to eventually focus on the intended understanding of the notion of “private document” and the notion “reading aloud” included in Article 393 paragraph 3 of the Code of Criminal Procedure.

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