72 hours of justice

The blocking of money in a bank account means a situation in which its owner is unable to use the funds in the blocked amount. It should be borne in mind that not only the funds already present in a given account may be blocked, but also the funds that will be credited to the account. Moreover, we also distinguish the institution of suspension of transactions, understood as a temporary restriction on the use and disposal of assets, consisting in preventing financial institutions or banks from carrying out certain transactions ordered by the account holder.

Przepisy ustawy Prawo bankowe nakłada ą na banki obowiązki w zakresie przeciwdziałania wykorzystywaniu swojej działalności dla celów mających związek z przestępstwa mi prania brudnych pieniędzy (art. 299 kk.) oraz finansowania terroryzmu (art. 165a kk). Jeśli bank lub instytucja finansowa zidentyfikuje działania, które mogą wypełniać znamiona wyżej wymienionych przestępstw zastosowanie będzie miała odrębna procedura z ustawy o przeciwdziałaniu praniu brudnych pieniędzy, zaś w przypadku zidentyfikowania pozostałych przestępstw (np. przywłaszczenia) wykorzystuje się procedurę przewidzianą w Prawie bankowym

However, it is not the case that the procedure for blocking a bank account is only initiated by the banks concerned. Indeed, it is an extremely useful means of preventing and safeguarding against the loss of funds belonging to us. An efficient attorney using this institution is able to effectively limit the potential losses of his clients and protect their assets. Therefore, when the law firm is approached by clients who suspect that money is “disappearing” from a company account, sometimes it is not enough to simply notify the public prosecutor’s office and wait a long time for the initiation of preparatory proceedings – by that time, all of the company’s assets may have already been effectively “moved out”. In such cases, preventive action is particularly important.

It is the attorney’s task to ensure that the client’s interests are fully safeguarded, which is why it is particularly justified in such cases to approach the bank and the public prosecutor in parallel. It should be noted that the bank itself (without a prosecutor’s order) only has the possibility to block the account for 72 hours on the basis of a notification made by the client – these three days may prove to be crucial to prevent the commission of a crime, or at least to protect the assets.

However, it is not self-evident that the bank will immediately block the account after receiving a letter from the client informing it that a crime may have been committed. It is important to present the financial institution with relevant arguments, outline the merits of the case and signal what consequences the bank may face if it is dilatory in the matter. Under current law, in the event of a reasonable suspicion that the bank’s activities are being used for criminal purposes, the bank is obliged to notify the relevant prosecutor’s office or the police. Furthermore, doctrine clearly indicates that the bank’s conduct here is burdened by the need to exercise due diligence.

Apart from the actions taken directly by the bank, cooperation with the public prosecutor’s office is extremely important in parallel. It often happens in practice that only direct contact with the prosecutor leading the proceedings will bring measurable effects, as the institution of bank blockage, which may be directly imposed by the prosecutor, is a relatively new solution, and therefore prosecutors are often afraid to use it. This is yet another argument supporting the thesis that skilful communication on the part of an attorney, who knows and understands the mechanisms governing criminal proceedings and financial institutions, is able to genuinely help the client.

Obtaining the blocking of the bank account for the client is a certain success, but it is only the beginning of the preliminary investigation. The next necessary steps are to bring about an investigation and to obtain asset security for the client. It should be emphasised that this institution on the borderline between criminal and banking law does indeed work, and the increased involvement of the attorneys, in close cooperation with the prosecutor, often helps to save funds from being completely transferred from the client’s accounts.

Under current law, if there is a reasonable suspicion that the bank’s activities are being used for criminal purposes, the bank is obliged to notify the relevant public prosecutor’s office or the police – if it fails to do so it can be held liable.

By filing such a notice of reasonable suspicion of the use of the bank’s activities to conceal criminal activities, the bank is entitled to provide the prosecutor or the police with information covered by bank secrecy. In such a situation, the public prosecutor does not have to apply to the district court for the lifting of bank secrecy. The public prosecutor may then issue an order within 72 hours to initiate or refuse to initiate proceedings, of which he shall immediately notify the relevant bank. If proceedings are instituted, the prosecutor may, by way of a decision, stop a given transaction or block funds in the account for a specified period, not exceeding 3 months from the receipt of the notification (in the case of offences under Article 299 and 165a of the Penal Code, the period is 6 months). As in the case of the majority of prosecutor’s decisions, the decision to block a bank account may be appealed against within 7 days of its notification.

If the public prosecutor decides to initiate proceedings, he may issue two types of orders. He can decide to continue the blocking of the funds held in the bank account. It can also decide only to stop a specific transaction. In both cases, the maximum time limit is no longer than 3 months. The prosecutor’s decision should indicate the scope, manner and date of stopping the transaction or blocking the funds in the account. It is also worth emphasising that subsequently the public prosecutor should, within 3 months of receiving the bank’s notification, issue a decision on securing property or a decision on material evidence.

Once a bank account has been blocked, the account holder cannot freely dispose of the funds in the account or withdraw them. It can be said that the funds in the account are “frozen”, so to speak, for the period specified in the prosecutor’s decision and for this period access to them is practically impossible.

At the same time, it should be emphasised that the provisions of the Act exempt the bank from liability for the damage caused to the account holder due to the establishment of the blockade and the making of
a notification under the provision in question.

The institution of blocking a bank account and its appropriate application can be a really effective method of securing the company’s assets against their “removal”. However, it is not an “easy to use” tool, both for the wronged party and for the prosecution or financial institutions themselves. What counts here is both time, a skilful choice of arguments presented to the bank and the public prosecutor, but also, and perhaps above all, an experienced attorney.