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

What is a safe conduct (iron letter)?

Recently, media have been circulating information about searches for suspects who, while staying abroad, avoid appearing at law enforcement agencies or deliberately hide from the justice system. In such cases, the prosecutor’s office has procedural tools at its disposal, such as the possibility of filing a motion with the court for the application of pre-trial detention or issuing an arrest warrant for the suspect.

What options does a suspect have who wants to change their procedural situation by undertaking an active defense, yet without fear of pre-trial detention being applied? An active defense which, by its nature, requires personal appearance before the prosecutor, including for the purpose of providing explanations.

The answer to this question is the possibility of applying for a so-called safe conduct (iron letter), which is a document guaranteeing the suspect participation in criminal proceedings while at liberty, until its legally binding conclusion. Unfortunately, not all suspects will be able to benefit from this institution. The further part of this article will describe the conditions that must be met in order to apply the safe conduct.

This article focuses on the preparatory stage of criminal proceedings, which is managed by the prosecutor – as it is generally at this stage that there is the most frequent interest of the parties in issuing a safe conduct.

Safe conduct and abuses in applying pre-trial detention in prosecuting economic crimes

From the perspective of performing defense counsel activities, in recent years it must be stated with full firmness that there have been abuses by courts in applying pre-trial detentions in ongoing criminal proceedings concerning so-called “white-collar” crime – in other words, economic crime.

Without going into details when searching for the causes of this state of affairs, for the purposes of this article it should be noted that criminal proceedings on economic matters often involve complicated, multi-threaded issues that must be analyzed by a judge in a short period of time before issuing a decision on the application (or not) of pre-trial detention. The result of the judicial analysis must therefore be a finding that the evidence collected by the prosecutor indicates (or not) a high probability that a given person has committed a crime.

Practice shows that case files at the time the prosecutor files a motion for pre-trial detention can number dozens or hundreds of volumes, consisting of, among others, extensive financial documentation illustrating multi-threaded and multi-entity money flows, or documentation describing the economic rationale for making a given business decision in strictly defined circumstances. It should be added here that the role of the judge ruling on detention in a given case, in most instances, will end with a “one-time” contact with a specific issue, the result of which will be making 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 defense’s right to appeal to a higher court – it remains in force. The conditions enabling the application of an isolation preventive measure (such as justified fear of flight, hiding, fear of tampering with evidence, or the presumption of a realistically threatening high prison sentence for the suspect) often remain mere generalities, completely detached from the factual state of a specific criminal proceeding.

Suspects of committing economic crimes in numerous cases are not persons who have been previously convicted, and thus the mere contact with criminal proceedings brings them emotions in the form of significant stress and anxiety. In emotions, combined with the prospect of arrest and pre-trial detention – these persons, upon learning about ongoing criminal proceedings, often decide to go abroad, among other things, to gain time necessary even to develop a defense line.

As indicated at the beginning, unjustified absence of a suspect in criminal proceedings ends with the possibility of applying pre-trial detention and issuing an arrest warrant. In such a situation, if the suspect decides on active defense without fear of sometimes months-long pre-trial detention being applied – there is a possibility for them to apply for a safe conduct, guaranteeing remaining at liberty until the legally binding conclusion of the proceedings, if they fulfill the statutory obligations imposed on them.

The possibility of defending from the so-called “free foot” when conducting business activity plays a significant role. Particularly when it comes to smaller entrepreneurs whose actions have a real reflection in the business decisions of the entity they run. The application of pre-trial detention can not only significantly paralyze the conduct of current business activities by the entrepreneur but can also lead to its indebtedness, loss of contractors, and consequently to its real bankruptcy. It cannot be forgotten that preparatory and court proceedings concerning economic crimes can last for years, and time in conducting business activities, particularly when making strategic business decisions, is of colossal importance. One cannot also lose sight of the fact that economic criminal proceedings – unlike other proceedings – are mainly based on documentation collected in the case files, which is subject to analysis by the law enforcement agency and subsequently by the court. Not in every case is the application of pre-trial detention a necessary solution to secure the proper course of proceedings, despite numerous prosecutor’s motions in this regard. One cannot forget about the existence of other preventive measures, such as property bail, prohibition to leave the country, or police supervision.

Who can benefit from safe conduct guarantees?

There are three main conditions that must be met to apply for a safe conduct. The first condition is having a strictly defined procedural status. This document can only be issued to a suspect and a defendant. That is, to a person against whom at least a decision on presenting charges has been issued.

The second condition enabling the issuance of a safe conduct is the requirement that the suspect be staying abroad. It is irrelevant whether this person is staying abroad with the intention of permanent residence or whether this stay is short-term. A suspect who is in the country and whose current place of residence is not known to law enforcement agencies will therefore not be able to benefit from this institution.

The third condition is the submission by the suspect of a declaration in which they assure that they will appear at the prosecutor’s request (and in the court proceedings stage, already as a defendant – at the court’s request) at a specified time, on condition of defending from the so-called “free foot”. Importantly, this declaration must be made personally by the suspect. Although the Code does not provide for the form of making the declaration, doctrine postulates that it should be made in written form – most often it constitutes an attachment to the defense counsel’s motion for issuing a safe conduct. There is therefore no possibility of making an effective declaration through a defense counsel appointed in the case or by articulating it between the lines in a prepared procedural document. As case law indicates: the declaration in question must be made for the purpose of issuing a safe conduct, constituting an expression of assuming a specific obligation. It cannot be replaced by an excerpt from a letter concerning a completely different issue, namely a motion to revoke an arrest order[1].

As a rule, the fact of staying abroad cannot be established on the basis of the suspect’s declaration alone when this circumstance has not been confirmed by the authorities of the given state[2] – although it should be emphasized that issuing a safe conduct can be considered even with respect to a suspect who obstructs criminal proceedings, or when their place of residence abroad is not known, or is known but their extradition by a foreign state is impossible (due to lack of an extradition treaty or residence outside the European Union in a state of which they are a citizen), or would cause significant difficulties, while it is in the public interest to clarify the case[3].

Moreover, following the view expressed by the Court of Appeal in Katowice, it should be indicated that when considering the legitimacy of issuing a safe conduct, the reason for the suspect’s absence from the country is not relevant, the reasons for such a state may be various and are not significant. Also in the case of deliberate escape from the country due to ongoing criminal proceedings, there are no obstacles to applying this institution[4].

Procedure for applying for a safe conduct

The authority authorized to issue a safe conduct is the locally competent regional court – regardless of whether it will be the court competent in substance to hear the case in the first instance in the future. The legislator’s use of the term “locally competent” therefore means the regional court competent to hear the case for the offense or in whose district the district court competent to hear it is located.

In preparatory proceedings (and thus in the discussed stage of criminal proceedings, which is managed by the law enforcement agency) – a safe conduct may be issued at the request of the prosecutor, suspect, or their defense counsel.

Importantly, the amendment of April 20, 2021, led to a significant limitation of the use of safe conducts by courts, as the prosecutor gained significant powers in the matter of the suspect applying for a safe conduct. In the current legal state, in the case of filing a motion by the suspect or by the defense counsel appointed in the case – the prosecutor may object to such a decision[5]. This provision raises numerous reservations and controversies, and the National Bar Council, among others, called for changes in this regard, indicating that such strengthening of the prosecutor’s position violates the European Convention on Human Rights. This regulation de facto places the prosecutor not only above the suspect and their defense counsel but also above the court ruling on the issuance of a safe conduct. It is absurd that under the current regulations the prosecutor has not even been obliged to justify their position regarding the objection.

However, it should be noted here that according to case law, the court examining a motion for issuing a safe conduct in preparatory proceedings is not bound by the prosecutor’s objection[6]. The author of this article fully supports the above position, as it guarantees the parties to criminal proceedings equality before the law, and thus ensures the same rights and legal measures to present their own position and polemics with the position of the procedural opponent.

In the legal state before the indicated amendment, the procedure did not favor any of the parties to the criminal process. Applying for a safe conduct worked in such a way that the suspect (or the defense counsel appointed in the case) filed a motion to the regional court in the discussed scope, and the prosecutor, not agreeing with the decision issued in the above scope, could file an appeal to the appellate court, i.e., the court of second instance. Such a state of affairs seems to be desirable also at present.

At the time of writing this article, another amendment to the Code of Criminal Procedure in the discussed scope is in the legislative process[7]. It introduces a change that should be assessed positively – it repeals the provisions introducing the controversial institution of the prosecutor’s objection. In the justification of the draft amendment to the act, it was indicated that the amendment of the provisions regulating the institution of safe conduct introduced the dominant role of the prosecutor in the process of the suspect applying for its issuance at the stage of preparatory proceedings, making it a dead institution. The content of Art. 281 § 2 of the Code of Criminal Procedure deprived the possibility of real influence on its issuance by the court, making it dependent either on the initiative or lack of objection to issuance by the prosecutor. Thus, at the stage of preparatory proceedings – that is, generally at the stage of the most frequent interest in issuing a safe conduct to date, the prosecutor’s objection was sufficient to prevent its issuance. The proposed repeal of the provision in this regard will result in a return to the exclusive competence of the court in assessing the grounds for issuing or refusing to issue a safe conduct. The essence of the safe conduct as an institution for securing the suspect for criminal proceedings by decision of the regional court will thus be restored. At the same time, the mandatory presence of the prosecutor has been abandoned, who has the right, not the obligation, to participate in the hearing[8].

Regardless, however, of who is the author of the motion for issuing a safe conduct, its addressee, i.e., the regional court is not bound in any way by its content and may refuse its application. In the regional court’s decision-making process, in addition to meeting formal conditions, the following should also play a significant role: the suspect’s attitude to date, the nature of the economic case under investigation, the historical aspect of the business activity conducted (and thus also the transparency of the business) and the impact of isolation in pre-trial detention on the current conduct of business activity, which is sometimes the only source of income for the suspect and their family. The suspect must therefore, by their attitude, guarantee that they will not obstruct the proceedings against them, will not induce false testimony and explanations, and that they will remain at their chosen place of residence in the country. The absence of these conditions, despite meeting the formal conditions for issuing a safe conduct, will result in the court’s lack of consent to positively consider the motion, and thus to ensure the suspect defends from liberty until the legally binding conclusion of the criminal proceedings.

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This article is for informational purposes and does not constitute legal advice. In case of doubts about your rights or further proceedings, it is advisable to consult with a professional lawyer.

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

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

[3] cf. decision of the Court of Appeal in Krakow of March 11, 2020, case no. II AKz 102/20, Legalis no: 2525447;

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

[5] see Art. 281 § 2 of the Act of June 6, 1997 Code of Criminal Procedure (Journal of Laws 1997 No. 89, item 555, consolidated text Journal of Laws of 2024, item 37;

[6] cf. decision of the Court of Appeal in Gdansk of March 29, 2022, case 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 draft (https://legislacja.gov.pl/projekt/12390959/katalog/13091015#13091015).