Letter of protection – an effective shield in criminal proceedings involving economic offences?

What is a letter of protection?

Recently, the media have been buzzing with information about searches for suspects who, while abroad, avoid appearing at the premises of law enforcement agencies or intentionally hide from justice.

In such cases, the prosecution has procedural tools at its disposal, such as the possibility to request the court to remand the suspect in custody or to order a search for the suspect by way of an APB.

What is then at the disposal of a suspect who wants to change his procedural situation by undertaking an active defence, but without fear of pre-trial detention?

An active defence, which inevitably involves the need to appear in person before the prosecutor, inter alia to give an explanation.

The answer to the question thus posed is the possibility to apply for the so-called ” iron letter”, which is a document guaranteeing the suspect’s participation in criminal proceedings at large, until its final and legally binding conclusion.

Unfortunately, not all suspects will be able to enjoy the benefits of this institution.

The following part of this article will describe the prerequisites for the application of the warrant letter.

This article will focus on the pre-trial stage of criminal proceedings, hosted by the prosecutor – for it is generally at this stage that there is the most frequent interest of the parties in the issuance of a letter of arrest.

The ‘iron letter

‘

and the misuse of pre-trial detention in the prosecution of economic crime

From the perspective of the exercise of the functions of a defence lawyer, in recent years it is necessary to point out with full firmness the misuse by the courts of pre-trial detention in ongoing criminal proceedings, the subject of which is so-called ‘white collar’ crime – in other words, economic crime.

Without going into detail in the search for the reasons for this state of affairs, for the purposes of this article, it should be pointed out that it is not uncommon for criminal proceedings on economic issues to involve complex, multi-faceted issues, which must be analysed by a judge in a short space of time, before issuing a decision on whether (or not) provisional arrest should be applied.

The result of the judge’s analysis must therefore be that the evidence collected by the public prosecutor indicates (or not) that there is a high probability that the person has committed an offence.

Practice shows that the case file on the date of the prosecutor’s application for the application of a temporary arrest can amount to several dozen or several hundred volumes, consisting of e.g. extensive financial documentation, illustrating multi-threaded and multi-entity cash flows, or documentation describing the economic rationale for taking a given business decision under strictly defined circumstances.

It should be added here that the role of the judge deciding on custody in a given case will, in most cases, end with a “one-off” contact with a specific issue, resulting in a decision aimed only at possibly securing the further proper course of proceedings.

In view of the above, the decision to apply pre-trial detention is not always accurate and – despite the defence’s complaint to a higher instance court – remains in force.

The premises enabling the application of an isolation preventive measure (such as a justified fear of flight, hiding, fear of matagration or the presumption of a real threat of a high penalty of deprivation of liberty for the suspect) not infrequently remain only generalities, in complete isolation from the facts of a specific criminal proceeding.

Suspects of economic crimes are, in many cases, not persons with previous criminal records and, therefore, the mere contact with criminal proceedings brings them emotions in the form of considerable stress and nerves.

These emotions, coupled with the prospect of arrest and pre-trial detention, often lead them to travel abroad when they become aware of criminal proceedings in progress, not least in order to gain time to develop a defence.

As signalled at the outset, the unexcused absence of the suspect from the criminal proceedings ends with the possibility of just provisional arrest and the ordering of a search by way of an APB.

In such a situation, if the suspect decides to defend himself actively, without fear of the application of sometimes months-long pre-trial detention – there is the possibility for him to apply for a letter of arrest, guaranteeing his remaining at liberty until the final conclusion of the proceedings, if he fulfils the statutory obligations imposed on him.

The possibility to answer on a “free footing” when conducting business plays a significant role.

This is particularly true for smaller entrepreneurs, whose actions have a real impact on the business decisions of the entity they are running.

Not only can the use of pre-trial detention significantly paralyse an entrepreneur’s day-to-day business activities, but it can also lead to the entrepreneur’s indebtedness, loss of business partners and, as a consequence, to its real collapse.

At the same time, one cannot forget that preparatory and judicial proceedings involving economic crimes can last for years, and time is of the utmost importance in running a business, especially when making strategic business decisions.

One should also not lose sight of the fact that economic criminal proceedings – unlike other proceedings – are mainly based on documentation gathered in the case file, which is subject to analysis by the prosecuting authority and subsequently by the court.

The use of pre-trial detention is not in every case a necessary solution in order to secure the proper course of proceedings, despite numerous motions of the prosecution in this respect.

The existence of other preventive measures, such as, for example, a financial guarantee, a ban on leaving the country or police supervision, should not be forgotten.

Who can benefit from the guarantee of a letter of protection?

There are three main prerequisites for being able to apply for a letter of guarantee.

The first prerequisite is that the person has a well-defined procedural status.

This document may only be issued against a suspect and an accused person.

Consequently, against a person in respect of whom, at the very least, a charging order has been issued.

The second prerequisite for the issuance of a warrant is the condition that the suspect resides abroad.

It is irrelevant whether the person is abroad with the intention of permanent residence or whether the residence is of a short-term nature.

A suspect who is in the country and whose current whereabouts are unknown to law enforcement authorities will therefore not be able to avail himself of the benefit of this institution.

The third prerequisite is that the suspect makes a statement in which he assures that he will appear at the prosecutor’s request (and at the stage of court proceedings, already as a defendant – at the court’s request) within a specified time limit, provided that he answers in the so-called “free of charge”.

Importantly, this statement must be made in person by the suspect.

While it is true that the Code does not prescribe the form in which the statement should be made, the doctrine postulates that it should be made in writing – most often as an attachment to the defence counsel’s application for a letter of summons.

It is therefore not possible for an effective declaration to be made by the defence counsel appointed in the case or by articulating it between the lines in a drafted pleading.

As the case law points out: the declaration in question must be made for the purpose of issuing a letter of summons, expressing the acceptance of a specific obligation.

It may not be substituted by an extract from a letter dealing with an entirely different issue, namely an application for revocation of an arrest warrant[1].

As a general rule, the fact of the person’s residence abroad cannot be established on the basis of a mere statement by the suspect if that circumstance has not been confirmed by the authorities of the State concerned[2] – although it should be pointed out that the issue of a warrant may be considered even in respect of a suspect who is hindering criminal proceedings

either where his whereabouts abroad are not known or are known but his surrender by the foreign State is impossible (owing to the absence of an extradition treaty or his residence outside the European Union in the State of which he is a national) or would cause considerable difficulties and there is a public interest in clarifying the matter[3].

Furthermore, following the view expressed by the Court of Appeal in Katowice, it should be pointed out that when considering the legitimacy of the issuance of a letter of indictment, the reason for the suspect’s absence from the country is not relevant; the reasons for such a state of affairs may vary and are irrelevant.

Also in the case of intentional flight from the country due to pending criminal proceedings, there are no obstacles to the application of the institution in question[4].

The authority authorised to issue a warrant is the locally competent regional court, irrespective of whether it will be the competent court to hear the case at first instance in the future.

The legislature’s use of the term ‘locally competent’ therefore means the district court with jurisdiction to hear the criminal case or in whose district the district court with jurisdiction to hear the case is located.

In pre-trial proceedings (and thus in the discussed stage of criminal proceedings hosted by a law enforcement agency) – a warrant letter may be issued at the request of a prosecutor, a suspect or his/her defence counsel.

Importantly, the amendment of 20 April 2021 has led to a significant reduction in the use of handbills by the courts, as the prosecutor has gained significant powers over the suspect’s application for a handbill.

In the current state of the law, in the case of an application by the suspect or by the defence counsel appointed in the case – the prosecutor can oppose such a decision[5].

This provision raises numerous objections and controversies, and a change in this respect has been called for by, inter alia, the Supreme Bar Council indicating that such a strengthening of the position of the prosecutor violates the European Convention on Human Rights.

This regulation de facto places the public prosecutor not only above the suspect and his or her defence counsel, but also above the court ruling on the issuance of the warrant.

It is absurd in this respect that under the current legislation the prosecutor is not even obliged to justify his position on the objection.

However, it is necessary to point out at this point to the case law according to which the court examining a pre-trial application for a letter of protection is not bound by the prosecutor’s objection[6].

The author of this article fully supports the above position, as it guarantees equality before the law to the parties to criminal proceedings, and thus provides the same rights and legal means to present one’s own position and to argue against the position of the procedural opponent.

In the legal state before the indicated amendment, the procedure did not favour any of the parties to the criminal proceedings.

The application for the issuance of a letter of summons was the following: the suspect (or the defence counsel appointed in the case) filed an application to the district court in this respect and the prosecutor, disagreeing with the decision in this respect, could file a complaint to the court of appeal, i.e. the court of second instance.

This state of affairs seems to be desirable also nowadays.

At the date of drafting this article, another amendment to the Code of Criminal Procedure in the discussed scope is in the legislative process[7].

It introduces a change which should be assessed as positive, as it repeals provisions introducing the controversial institution of the prosecutor’s objection.

In the justification of the draft amendment to the Act it was pointed out that the amendment to the provisions regulating the institution of a bill of indictment introduced the dominant role of the prosecutor in the process of applying for its issuance by a suspect atthe stage ofpre-trial proceedings,makingita deadinstitution.

The content of Article 281 § 2of the Code of Criminal Procedure.

deprivedthe possibilityofreal influenceon its issuance bythecourt,making itdependenteitheron the initiative or the absence of an objectiontoits issuanceby the prosecutor.

Thus, at thepre-trial stage– i.e.generally at the stage ofmostinterest in the issuance of a letter of indictment to date – the prosecutor’s objection was sufficient to preventits issuance.

The proposed repeal of the provision in this regard will result ina returnto theexclusive competence of the courtin assessing the grounds for issuing or refusing to issue a letter of protection .

This will restorethe essence of the letter ofindictment as an institution of securing the suspect for the criminal trial byadecision oftheregional court.

At the same time,the mandatory presence ofthe prosecutor,whohas the right, but not the obligation,to attend the hearing, isabandoned[8].

However, irrespective of who is the author of the application for a letter of indictment, its addressee, i.e. the district court, is in no way bound by its content and may refuse to apply it.

In the decision-making process of the district court, in addition to the fulfilment of formal conditions , the previous attitude of the suspect, the nature of the investigated business case, the historical aspect of the business activity of the entity being investigated (and thus also the transparency of the business) and the impact of isolation in custody on the day-to-day running of the business, which sometimes is the only source of income of the suspect and his family, should also play a role.

The suspect’s attitude must therefore provide a guarantee that he will not obstruct the proceedings against him, that he will not induce false statements or explanations and that he will stay at his chosen place of residence in the country.

Failure to meet these conditions, despite the fulfilment of the formal prerequisites for the issuance of a letter of indictment, will result in the court’s refusal to grant the application and, consequently, to ensure that the suspect will answer from liberty until the final conclusion of the criminal proceedings.

***

This article is for information purposes and does not constitute legal advice.

If you have any doubts about your rights or about further proceedings, it is reasonable to consult a professional lawyer.

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[1] cf. decision of the Court of Appeal in Kraków of 2 December 2015, ref. no. II AKz 456/15, KZS 2015, No. 12, item 40;

[2] cf. decision of the Court of Appeal in Kraków of 11 October 2018, ref. no. II AKz 529/2018, KZS 2018, No. 10, item 48;

[3] cf.

decision of the Court of Appeal in Kraków of 11 March 2020, ref. no. II AKz 102/20, Legalis no.: 2525447;

[4] cf. decision of the Court of Appeal in Katowice of 5 May 2017, ref. no. II AKz 280/17, Biul. SAKa 2017, No. 2, item 14;

[5] see art. 281 § 2 of the Act of 6 June 1997 Code of Criminal Procedure (Dz.U.

1997 No. 89, item 555, i.e. Journal of Laws 2024, item 37;

[6] cf. decision of the Court of Appeal in Gdańsk of 29 March 2022, ref. no. II AKz 222/22, Legalis no. 2682784

;[7] https://legislacja.gov.pl/projekt/12390959/katalog/13091015#13091015;

[8] page 82 of the justification of the above-mentioned project (https://legislacja.gov.pl/projekt/12390959/katalog/13091015#13091015).