Securing Property: Facts and Legal Issues

1. Securing property. Facts and legal issuesRobert WojdkowskiHead of Division II for the Economic CrimeDistrict Prosecutor's Office in Płock

2. The formal basis for protection of property • Art. 291.  § 1. In the event of charging the accused with committing a crime for which one could rule a fine or pecuniary compensation or in connection with which one can order the forfeiture or a compensation, there is a possibility of ex officio enforcement of a judgement on the property of the accused or to property referred to in art. 45 § 2 Penal Code if there is a justified fear that without such protection enforcement of the decision with respect to the indicated penalty, pecuniary benefit, forfeiture or compensatory measure would be impossible or significantly more difficult. • § 2. Securing execution of confiscation may also be on the property of a natural person, legal entity or organizational unit without legal personality referred to in art. 45 § 3 Penal Code. • § 3. Securing enforcement of the judgement of the court costs may occur ex officio on the property of the accused if there is a justified fear that without such protection enforcement in this regard would be impossible or significantly more difficult. • § 4. Protection of property should be immediately set aside, in whole or in part, if causes, as a result of which it has been applied to a particular size case to exist or there arise reasons for its repeal at least in part. • Art. 291. § 1. In the event of a criminal offence for which a fine may be judged, forfeiture of objects or damages, or punitive rule may be imposed, enforcement of a judgement on the property of the accused may occur ex officio. • § 2. If one commits a crime against property or causes damage to property, securing of damages may occur ex officio.

3. Art. 45. § 1. If the perpetrator obtained from the commission of the offence, even indirectly, a non-financial benefit not subject to forfeiture of items listed in Article 44 § 1 or 6, the court shall order the seizure of such benefit or its equivalent. The forfeiture shall not be decreed, in whole or in part, if the benefit or its equivalent shall be returned to the wronged person or other entity. • § 2. In the event of a conviction for a crime from which the offender obtained , even indirectly, a material benefit of considerable value, it is believed that the property of which the perpetrator took the possession or to which it has obtained any title in the time of the offence or after its commission, until the issue of even an invalid judgement, constitutes an advantage derived from the offence, unless the perpetrator or other interested person shall submit proof to the contrary. • § 3. If the property constituting the benefit obtained from the commission of an offence referred to in § 2 was transferred to a natural or legal person or entity without legal personality, in fact or under any legal title, it is believed that the things that are in spontaneous possession of the person or entity and exercise its property rights belong to the accused person, unless on the basis of the circumstances surrounding their acquisition could not be assumed that the property comes, even indirectly, from an offence. • § 4. (Repealed). • § 5. In the case of co-ownership, forfeiture is declared of the share belonging to the offender or the forfeiture of the equivalent of the share. • § 6. (Repealed).

4. Art. 131. § 1.  In the case of committing a fiscal offence or misdemeanor, one can also secure a penal measure of forfeiture or retrieving a monetary equivalent of the forfeiture of objects or confiscation of material benefit or retrieving a monetary equivalent of the forfeiture of financial benefits and paying public duties depleted by a criminal act if there is a justified fear that without such protection performance ruling with relation to these measures or recovery of depleted public debt will be impossible or very difficult. • § 2. (60) (repealed). • § 3. Fine and penal measure of recovery of a monetary equivalent of the forfeiture of objects can also be secured on the property of the entity of prandial responsibility. • § 4. To protect the punitive measure of forfeiture of financial benefits and recovery its pecuniary equivalent and forfeiture of objects and recovery of their monetary equivalent, the provisions of art. 292 § 2 Code of Criminal Procedure shall apply. • Art. 132. Protection of property referred to in Article 131 falls when the following do not constitute a final judgement: forfeiture of items or recovery of their monetary equivalent, a penalty of forfeiture of financial benefits or recovery of its monetary equivalent. Protection of public-law claims lapse if within 3 months from the date of validation of the decision terminating the proceedings execution for recovery of these claims will not be initiated.

5. Procedural steps prior to a decision on establishing asset-based security • Art. 295. § 1. In case of an offence referred to in Article 291, police may make a provisional seizure of movable property of the suspected person if there is a fear of removal of that property. • § 2. The provisions of Article 217-235 shall apply accordingly. • § 3. Temporary occupation may not apply to items that are not subject to execution. • § 4.  Temporary job falls if within a period of 7 days from the date of its completion, will not be issued a decision on establishing asset-based security. • Art. 132a. In the cases referred to in Article 131, one can also make a provisional seizure of movable property of the suspected person if there is a fear of removal of that property.

6. Art. 106a. 1. If there is a reasonable suspicion that the bank's activities is used to conceal criminal activity or for the purpose related to a fiscal offence or any other offence than the offence referred to in art. 165a or art. 299 of the Penal Code - the bank notifies the public prosecutor, the police or other competent authority authorized to conduct investigation. • 2. The prosecutor, police or other competent authority authorized to conduct preparatory proceedings, which received the notification referred to in paragraph 1, may request supplementary information, also in the course of activities undertaken on the basis of art. 307 the Act of 6 June 1997 - The Code of Criminal Procedure. • 3. In the case of justified suspicion that funds accumulated on a bank account, in whole or in part come from or are connected with the offence other than an offence referred to in art. 165a or art. 299 of the Penal Code, the bank is entitled to make a hold on funds on this account. The block can only be to the amount of funds on the account, to which there is a suspicion. • 4. Block of funds on the account, made in the circumstances referred to in paragraph 3 cannot last longer than 72 hours. • 5. Immediately after the block referred to in paragraph 3, the bank shall notify the prosecutor. • 6. By the date specified in paragraph 4, the prosecutor issues a decision on whether or not to initiate proceedings, of which they shall immediately notify the appropriate bank. The period specified in art. 307 § 1 of the Code of Criminal Procedure does not apply. In the event of proceedings, the prosecutor by giving a formal decision shall block the funds on the account for a specified period not exceeding three months from receipt of the notification referred to in paragraph 5. The decision shall determine the scope, manner and date of account block. • 7. A prosecutor's decision on the application of funds block on the account may be appealed against before a court competent to hear the case. • 8. Block of funds on the account falls if, before the expiry of three months from receipt of the notification referred to in paragraph 5, a decision on securing means will not be issued. • 9. In matters concerning the block of funds on an account not regulated by the Act, the provisions of Code of Criminal Procedureshall apply. • 10. The Bank is not liable for damage which may result from the execution in good faith of the obligations set out in paragraphs 3-5. In this case, if the circumstances referred to in paragraph 3-5 had no connection with the crime or concealment of criminal activities referred to in paragraph 1, liability for damages resulting from the implementation of funds block on the account shall be borne by the Treasury. • 11. The Bank shall block funds on a bank account, in their entirety, also on demand of a n account block referred to in art. 75e (1) of the Act of 27 August 2009 on Customs Service. The provision of paragraph 10 shall apply accordingly.

7. 8. Block of funds on the account falls if, before the expiry of three months from receipt of the notification referred to in paragraph 5, a decision on securing means will not be issued. 9. In matters concerning a block of funds on an account not regulated by the Act, the provisions of the Code of Criminal Procedure shall apply. 10. The Bank is not liable for damage which may result from the execution in good faith of the obligations set out in paragraphs 3-5. In this case, if the circumstances referred to in paragraph 3-5 had no connection with the crime or concealment of criminal activities referred to in paragraph 1, liability for damages resulting from the implementation of funds block on the account shall be borne by the Treasury. 11. The Bank shall block funds on a bank account, in their entirety, also on demand of a n account block referred to in art. 75e (1) of the Act of 27 August 2009 on Customs Service. The provision of paragraph 10 shall apply accordingly.

8. Chapter 5 The procedure of postponement of transactions and account blocking Art. 16. 1. Obligated institution who received the instruction or order to carry out the transaction, having to carry out a transaction or having information about the intention to carry out a transaction on which there is a reasonable suspicion that it may be related to the offence referred to in art. 165a or art. 299 of the Penal Code, is obliged to inform in writing the Inspector General, passing all data referred to in Article 12 paragraph 1 and art. 12a together with an indication of the evidence in favour of suspension of the transaction or block of the account and indicate the expected date of its implementation. The provision of art. 11 paragraph 4 does not apply. 1a. Where an institution that made the notification in accordance with paragraph 1 is not an institution which that shall carry out the transaction, the notice shall also indicate the institution, which is to carry out the transaction. 2. Upon reception of the notification, the Inspector General shall promptly confirm its acceptance in writing, stating the date and time of receipt of the notification. 3. Notification and confirmation referred to in paragraph 1 and 2 can also be transferred using the IT media. 4. Until receipt of the request referred to in Article 18 paragraph 1, no more than 24 hours after confirmation of receipt of the notification referred to in Article 16 paragraph 2, the institution is not required to perform a transaction covered by the notification.

9. Art. 17. If the notification referred to in Article 16 paragraph 1 cannot be done before performing or during performing instruction or order to carry out the transaction, the obliged institution transfers information about the transaction immediately after its completion, giving the reasons for the lack of notice. • Art. 18. 1. If the notice referred to in Article 16 paragraph 1 states that the transaction to be carried out may be related to an offence referred to in art. 165a or art. 299 of the Penal Code, the Inspector General may, within 24 hours of the date and time indicated in the confirmation referred to in Article 16 paragraph 2, pass obligated institution a written request to suspend the transaction or block the account for a period not longer than 72 hours from the date and time indicated in the confirmation. At the same time the General Inspector shall notify the proper public prosecutor on suspicion of committing a crime and provide it with information and documents relating to the suspended transaction or the blocked account. • 2. A request to suspend a transaction or block an account can only be issued by the Inspector General, or a total of two employees authorized by him in writing of the unit referred to in Article 3 paragraph 4. • 3. The obligated institution shall suspend the transaction or block the account immediately after receipt of the request referred to in paragraph 1. • 4. Suspension of transactions or account block by the obligated institution in the manner specified in paragraph 1 and 3 do not born disciplinary liability, civil, criminal, or other specified by separate regulations. • 5. For counting the time limits referred to in paragraph 1 Saturdays, Sundays and public holidays shall not be included.

10. Art. 18a. 1. The Inspector General may delegate an obligated institution in writing to suspend a transaction or block the account without prior receipt of the notification referred to in Article 16 paragraph 1, if the information available indicates that carrying out activities aimed at money laundering or terrorist financing. • 2. In the case referred to in paragraph 1, the Inspector General may request the suspension of the transaction or block the account for a period not longer than 72 hours from the receipt of the request by the obligated institution. • 3. The provisions of Article 1819 shall apply accordingly. • Art. 19. 1. In the case of receipt of the Inspector General of the notification referred to in Article 18 paragraph 1 second sentence, the prosecutor may by s decision suspend a transaction or block the account for a specified period, but not more than 3 months from the receipt of this notification. • 2. The decision referred to in paragraph 1 defines the scope, method and date of withholding the transaction or account block. The decision may be appealed against before a court competent to hear the case. • 3. (Repealed). • 4. Suspension of transactions or account block falls if within 3 months of receipt of the notification referred to in Article 18 paragraph 1 second sentence, a decision on securing means is not be issued. • 5. In matters related to suspension of a transaction or blocking an account not regulated by the Act, the provisions of Code of Criminal Procedureshall apply. • Art. 20. If an account has been blocked or transaction has been withheld in violation of the law, the responsibility for the resulting damage is sustained by the Treasury under the terms of Civil Code. • Art. 20a. (Repealed). • theses from literature

11. Art. 20b. The provisions of Article 19 and 20 shall apply accordingly also in the course of criminal proceedings instituted for an offence listed in art. 165a Penal Code, if the notice of an offence received by the prosecutor comes from other sources. • Art. 20c. The obliged institution, at the request of the ordering the transaction or account holder can inform him of withholding the transaction or account block and indicate the authority that requested it.

12. Regulations concerning the protection of property contained in the Regulations of the internal office of common units of the prosecutor's office • § 202. In matters referred to in art. 291 of the Code of Criminal Proceedings, already at an early stage of preparatory proceedings, one should collect information about the property status of the suspect and the things and property rights to be hedged, and subject to the sovereignty of others. • § 203. If necessary, before issuing a decision about asset-based security, the prosecutor interrogates the suspect and other persons on the circumstances related to the seized property. • § 204. 1. In the decision of asset-based security, should be listed all the titles of security applicable in the case and indicated assets subject to seizure. • 2. The scope of protection against the threat of fines and punitive measures should correspond to the anticipated dimension of the penalty or penal measures. • § 205. 1. A copy of the decision about asset-based security shall be delivered to the suspect in a financial return for confirmation of receipt, which shall be attached to the records of preparatory proceedings. The suspect against whom a temporary detention has been applied, copy of the order shall be served during the hearing or through the administration of the detention centre, while the suspect residing at liberty - through an enforcement authority. • 2. By submitting to an enforcement authority a decision about asset-based security, the prosecutor in the covering letter indicates the property of the suspect revealed during the preparatory proceedings and the place where it is located.

13. § 206. The seized movables, with the exception of valuables, savings books, credit cards, money and other securities can be left by the suspect or his family or deposited with a trustworthy person. This applies in particular to means of transport, machinery and technical equipment requiring the necessary maintenance. • § 207. 1. The fact of issuing a decision about asset-based security in a case in which a temporary seizure took place shall be notified by return confirmation of receipt to the person who had been entrusted with safekeeping of the seized movables. • 2. If the case referred to in paragraph 1, the prosecutor withdrew from the decision of blocking, the fall of provisional seizure must be notified to the suspect and the person who had been entrusted with safekeeping of the seized movables. • § 208. The provision of § 163 shall apply accordingly to the collateral property. • § 209. The repeal of the freezing order shall be communicated to the suspect, the person who had been entrusted with safekeeping of the goods, and the enforcement authority to whom the decision was sent to do. • § 210. Sent by the execution body protocol of the seizure of property shall be submitted to the preparatory proceedings act, and a copy of it - to handheld acts. If the file is already in court, the protocol must be submitted to the court in order to be attached to the files.

14. Execution of the decision about asset-based security • Art. 292. § 1. The security is established in the manner specified in the regulations of the Code of Civil Procedure, unless the law provides otherwise. • § 2. The asset-based security of a potential forfeiture is established by the seizure of movable property, claims and other property rights and by establishing a prohibition on selling and encumbering real estate. This prohibition shall be disclosed in the land register, and in the absence thereof, in the set of complex documents. Where necessary management of real estate or business of the accused may be established. • § 3. The provision of Article 232 shall apply accordingly. • Art. 293.  § 1. A decision on establishing asset-based security is issued by the court, and the prosecutor in the preparatory proceedings. • § 2. The decision determines the amount and manner of security, taking into account the size of fines possible to be adjudicated in the circumstances of a given fine case, punitive measures, forfeiture or compensatory measures. The size of the collateral should correspond only to the needs of what it is intended to secure. The requirement to measure quantitatively the security does not apply to security on the seized object to be forfeited, as a one derived directly from the offence or serving or intended for its commission. • § 3. The decision on the security is subject to an appeal. • § 4. If a provision was issued by a prosecutor and an investigation is carried out in the district of a court other than local and material jurisdiction, one is entitled to appeal to the court materially competent to hear the case in the first instance in whose jurisdiction the preparatory proceedings are conducted.

15. § 5. A decision on establishing asset-based security at the time of its issuing is enforceable. • § 6. If security was established on things that previously the accused gave out to the procedural authority or which had been detained as a result of activities referred to in Chapter 25, enforcement actions for the execution of decision about asset-based security should not be undertaken. • § 7. A natural person, legal person or organizational unit without legal personality referred to in art. 45 § 3 of the Penal Code, may bring an action against the State Treasury to establish that the property or part of it shall be forfeit. Until a final resolution of the case enforcement proceedings shall be suspended. • Art. 294. § 1. Security falls when the following are not adjudicated: fine, forfeiture, compensatory damages, cash benefit or a liability for damages or compensation for the incurred damage are not imposed and the action of these claims is not brought before the expiration of 3 months from the date the decision becomes final. • § 2. If you bring an action within the period specified in § 1 protection remains in force if in civil proceedings the court does not decide otherwise.

16. Chapter 3 • Enforcement proceedings • Art. 25. § 1. The execution of adjudicated civil claims, imposed fine, pecuniary contribution and court receivables carried out according to the provisions of the Code of Civil Procedure unless the Act provides otherwise. • § 2. (Repealed). • § 3.  First the adjudicated civil claims are subject to satisfaction in order to redress or compensate for the damage suffered, and then court claims. • Art. 26. For writs of execution apply provisions of art. 776-795 of the Code of Civil Procedure. • Art. 27. A tax office conducts execution of forfeiture and compensatory damages to the Treasury under regulations of administrative enforcement proceedings unless this Act provides otherwise. • Art. 27a. § 1. In order to implement the provisions of securing a fine, pecuniary contribution, compensatory measure and court costs shall apply the provisions of the Code of Civil Procedure unless this Act provides otherwise. • § 2. In order to implement the provisions of securing forfeiture shall apply the provisions on administrative enforcement proceedings unless this Act provides otherwise.

17. Execution of the decision about asset-based security under the Fiscal Penal Code • Art. 179. § 1. The authority of the enforcement procedure in the field of enforcement of judgements in matters of fiscal offences and crimes is also the customs office. Decisions of these bodies shall be governed accordingly by the provisions of the art. 7 of the Executive Penal Code. • § 2. The body executing collateral property is the tax office unless the Code provides otherwise. • § 3. Material security on the goods subject to control exercised by the Customs Service at the disposal of the customs office and the values of foreign currency or domestic currency are subject to exchange control exercised by the customs office, in cases of fiscal offences and fiscal crimes carried out by customs offices, is made by these bodies. • § 4. If the collateral had been done by the customs office, the court directs a ruling to that body in order to be performed in this section. • § 5. In case of a decision about a penal measure of forfeiture of financial benefit or recovery of its monetary equivalent, an enforcement authority specified in § 1, or art. 27 of the Executive Penal Code also conducts the execution of fines imposed at the same time, a penal measure of forfeiture of objects or recovery of its monetary equivalent they had made in advance their collateral. • § 6. Competence of the customs office specified in § 1, 3, 4 and 5 can be also performed by the Customs Chamber. • Art. 179a. § 1. If in the judgement of forfeiture of objects, their destruction was decided upon, the court determines the conditions and procedure for the immediate destruction of the objects by an appropriate body of enforcement proceedings.

18. § 2.  The Minister of Justice, in consultation with the minister responsible for public finance shall determine, by regulation, detailed conditions and procedures of how to immediately destroy the objects referred to in § 1 and Article 31 § 6, bearing in mind in particular the nature of objects and entities specialized in their destruction, as well as ensuring the efficiency of the enforcement procedure and its costs, as well as the need to properly secure operations of liquidation. • Art. 180. § 1. In order to secure and enforce a punitive measure of recovery of the monetary equivalent of forfeiture of objects, punitive measure of recovery of the monetary equivalent of forfeiture of financial benefits or public claims depleted by a criminal act, shall apply respectively art. 179 § 1 of the present Code and art. 27 of the Executive Penal Code. • § 2. The intervener claiming the right to objects covered by collateral or execution of forfeiture of objects or recovery of their monetary equivalent may assert claims only in the manner specified in Article 119. • Art. 180a. For security and enforcement of punitive measure of forfeiture of benefit or recovery of its monetary equivalent shall apply respectively 33 § 2-4. • Art. 181. § 1. In the cases referred to in Article 8 § 1 in case of non-simultaneous conviction by the courts for penalties, punitive measures or other measures, the court, which last issued a judgement in the first instance, at the request of the convicted person shall issue a decision about which penalty, as the most stringent, would be enforceable. A body for preparatory proceedings may also submit an application for a decision on this issue. The decision can be appealed both by the pre-trial authority and the convicted party. • § 2. The provision of § 1 shall apply accordingly in the event of non-simultaneous conviction by judicial bodies to pay a fine for a fiscal misdemeanor and a fine for the offence. • § 3. In the case referred to in Article 8 § 2, the provisions of Code of Criminal Procedure concerning the judgement of the total shall be applied. • § 4. In case of previous execution of a more lenient penalty or penal measure, in whole or in part, it shall be included towards the severest penalty enforceable, taking into account the differences between these penalties or penal measures.