Subsidiary indictment - practical tips for entrepreneurs
Regardless of the legal form in which entrepreneurs conduct their economic activity, to what extent and what is its subject, they are exposed to damage caused to them by the crime. It may be damage caused by a partner, dishonest contractor, or a completely third party with whom the entrepreneur has no legal relationship. The article will indicate who to go to for help and what to do when the authorities decide to discontinue pre-trial proceedings or refuse to initiate it, and what a subsidiary indictment is.
The provisions on crimes are included in the Act of June 6, 1997, the Penal Code (Civil Code). It lists all acts that are forbidden under penalty of punishment. If someone has caused damage to the employer, the code should find provisions that will allow the perpetrator to be charged.
Instructions on informing the authorities about the commission of a crime and lodging any complaints, if they refuse to initiate preparatory proceedings or discontinue them, can be found in the Act of June 6, 1997 - Code of Criminal Procedure (CCP).
Selected crimes to the detriment of the entrepreneur
Examples of crimes to the detriment of the employer may be:
Destruction of IT data
Art.268a of the Criminal Code (PC) says: "Who, without being authorized to do so, destroys, damages, deletes, changes or hinders access to IT data or significantly interferes with or prevents the automatic processing, collection or transfer of such data, shall be subject to imprisonment for up to 3 years." It is important that the act is committed by a person who is not entitled to do so (the perpetrator cannot be an IT employee).
Art. 270 of the Penal Code says: "Whoever, in order to use it as authentic, forges or forges a document or such document as authentic, shall be subject to a fine, imprisonment or imprisonment from 3 months to 5 years." In this case, it is important to be able to define precisely who is the perpetrator and what damage has been caused by the crime.
Theft, burglary, misappropriation.
Articles 278, 279 and 284 of the Penal Code contain the information that: "Whoever takes away someone else's movable property for the purpose of appropriation shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.
Whoever steals by burglary is punishable by imprisonment from one to 10 years.
Whoever appropriates someone else's movable property or property right, shall be subject to the penalty of deprivation of liberty for up to 3 years. "
Pursuant to Art. 286 of the Penal Code: "Whoever, in order to gain financial benefits, causes another person to disadvantageously dispose of his own or someone else's property by misleading him or by exploiting a mistake or inability to properly understand the action taken, shall be subject to the penalty of deprivation of liberty for a term of between 6 months and 8 years."
This crime is difficult to prove because it assumes that the perpetrator, for example at the time of concluding the contract, knew that he would not be able to fulfill it. So he acted to harm the aggrieved party, and this intention was with him from the very beginning. It is possible to demonstrate, for example, by the fact that the contractor does not conduct business activity, purchased the machine without any orders that would allow its use, or had debts and did not have the means to pay the aggrieved party.
Causing damage to the economic turnover
The Penal Code penalizes behavior to the detriment of entrepreneurs. One of them is the abuse of partners' trust, formulated as follows:
Art. 296 of the Criminal Code
"Who, being obliged under the provisions of the Act, a decision of a competent authority or a contract to deal with the property matters or economic activity of a natural or legal person or an organizational unit without legal personality, by abusing the powers granted to him or failing to fulfill his obligation, causes him considerable damage. property, is punishable by imprisonment from 3 months to 5 years. "
This applies, for example, to the disloyalty of partners or their undertaking a competitive activity.
Actions performed by law enforcement agencies
When the entrepreneur learns that a crime has been committed to his detriment, he should submit a notification about the possibility of committing a crime. He can do it orally or in writing, but it should be submitted to the competent authority - the prosecutor's office or the police. Regardless of the form, the aggrieved party is interrogated as the aggrieved party by the authorities (the police or the prosecutor's office). Often the activities in the preparatory proceedings are taken by the police, so if time is important - it is worth reporting to the police. The prosecutor's office, after receiving the notification, sends it to the police. In the course of the preparatory proceedings (the stage from the initiation of the investigation or inquiry to the filing of the indictment with the court), the authorities are obliged to:
establish whether a criminal offense has been committed and whether it constitutes a criminal offense;
detect and, if necessary, apprehend the perpetrator;
collect data about the suspect;
explain the circumstances of the case, including the determination of victims and the extent of the damage;
collect, secure and, to the extent necessary, record evidence for the court.
After carrying out preliminary activities, before issuing the decision to initiate an investigation or inquiry, the authorities may decide that no prohibited act has been committed, or that the committed act does not constitute a crime. It is also possible that the perpetrator has not been identified. A decision is then issued to refuse to initiate an investigation or inquiry. It is delivered to the aggrieved party.
The aggrieved party may, within 7 days from the date of the above-mentioned decision being served on him, submit a complaint to the competent court (the court in whose district the prosecutor's office is located).
On the other hand, the court issues a decision either to uphold the decision of the prosecutor's office or to revoke the appealed decision, together with the case being remanded for reconsideration by the prosecutor's office. Such a decision usually also contains instructions on what actions should be taken by the prosecutor's office.
If, on the other hand, the court issues a decision refusing to initiate criminal proceedings, the aggrieved party has the right to bring a subsidiary indictment. The situation is similar when the prosecutor's office issues a decision to discontinue an investigation or investigation, so after its formal initiation, it turns out that there are reasons not to continue it (for example, lack of features of a prohibited act, limitation of criminal record).
When and where to file a subsidiary indictment?
A subsidiary indictment shall be lodged with the court in the event of the re-issuance of the decision to refuse to initiate or to discontinue the proceedings by the authorities conducting the preparatory proceedings.
The deadline for bringing it is 30 days from the date on which the aggrieved party was served with the decision to refuse to initiate or to discontinue the proceedings. Therefore, it is not a long time, taking into account the fact that the indictment should describe the prohibited act in detail, collect and deliver evidence, prepare documentation. Moreover, the subsidiary indictment should be drawn up and signed by the attorney. Therefore, you should contact a professional in advance - a legal advisor or attorney, who will prepare a letter to the court and indicate which documents and evidence should be attached to it.
The prosecutor may appeal to a case initiated on the basis of an indictment brought by an auxiliary prosecutor, becoming a public prosecutor. However, this does not happen often - it would be an admission by the prosecutor that he discontinued the proceedings or refused to institute them unreasonably, since he wants to take an active part in the trial before the court.
Elements of the subsidiary indictment
Pursuant to Art. 332 of the Code of Criminal Procedure, the subsidiary indictment should contain the following information:
the name of the accused and other information about him - for example, parents' names, place of residence, date and place of birth;
precise specification of the offense accused of the accused, indicating the time, place, manner and circumstances of its commission as well as the consequences, and in particular the amount of the damage caused - all circumstances should be quoted;
an indication that the act was committed under the conditions specified in Art. 64 or article. 65 of the Penal Code or Art. 37 § 1 of the Fiscal Penal Code - however, in conditions of recidivism, the injured person does not have such data, they are checked by the court by requesting information about the person from the National Criminal Register;
indication of the provisions of the criminal act under which the alleged act falls;
indication of the court competent to hear the case;
a list of people who are requested by the prosecutor - witnesses in the case (these may be people who have seen the perpetrator and the act he has committed), other partners, employees, contractors and anyone who has knowledge of the act being committed by the accused;
a list of other evidence that the prosecutor is requesting to take at the main hearing - for example, surveillance camera recordings, contracts, e-mails, information about the defendant's debt, expert opinions and expert opinions (e.g. in the field of estimating damages), etc.
The indictment shall be accompanied by its justification. It is a description of the actual circumstances of the offense and, if necessary, also the legal circumstances.
The indictment is submitted to the court together with copies - one for the prosecutor and one for each accused (they are served by the court). As indicated above, it must be drawn up and signed by an attorney, the aggrieved entrepreneur cannot do it on his own.