Criminal law

Our law firm run by advocate Maciej Kacprzak and – with regard to Ukrainian and Russian-speaking clients – advocate Iryna Myzyna leads criminal cases comprehensively, and in various procedural configurations. Comprehensively, because we lead cases starting from the earliest stage of criminal proceedings, i.e. preparatory proceedings conducted by the police and prosecutor’s office, through the stage of court proceedings (before courts of the first and second instance), and ending with executive proceedings. In various procedural configurations, because we lead cases both as defence counsel for suspects/accused/convicted persons, as well as attorneys for victims. It is needless to say that in conducting criminal cases the highest degree of trust between the client and the lawyer is essential. And we never brake this trust. For us, handling criminal cases means, above all, a solid craftsmanship, sometimes enriched with a little flair.

Criminal law

Our law firm run by advocate Maciej Kacprzak and – with regard to Ukrainian and Russian-speaking clients – advocate Iryna Myzyna leads criminal cases comprehensively, and in various procedural configurations. Comprehensively, because we lead cases starting from the earliest stage of criminal proceedings, i.e. preparatory proceedings conducted by the police and prosecutor’s office, through the stage of court proceedings (before courts of the first and second instance), and ending with executive proceedings. In various procedural configurations, because we lead cases both as defence counsel for suspects/accused/convicted persons, as well as attorneys for victims. It is needless to say that in conducting criminal cases the highest degree of trust between the client and the lawyer is essential. And we never brake this trust. For us, handling criminal cases means, above all, a solid craftsmanship, sometimes enriched with a little flair.

What cases do we lead?

The spectrum of criminal cases that we conduct is wide. Below we present the most common groups of crimes in which we defend or represent the aggrieved persons. Economic crimes are described in more detail due to the greater abstractness of the cases, and the resulting need for more precise explanation using everyday language.
Crimes against life and health (fights and assaults, causing damage to human health, exposure to the danger of loss of life or health, etc.)

The severity of punishment related to this group of offences is considerable. This is due to the fact that health and life are commonly regarded as legal goods of the highest importance. In addition, these are 

Traffic offences (traffic accidents, drink-driving or driving under the influence of other intoxicants, failure to stop for a road check, driving with a revoked driving licence, etc.)

This is a very common group of offences dealt with by the justice system (about 10% of the total number of offences) because driving has grown to be an inherent part of today’s life. Important to note is, that, in some cases, the court is obliged to impose (apart from the rest of the penalty) a penal measure in the form of a driving ban. Here, a wide range of facts, which our attorneys are ready to deal with, allows us to adjust the optimal prosecution strategy for each client.

Sexual crimes (rape, sexual harassment, paedophilia offences, dissemination of pornography, pimping)

This is a particularly “sensitive” group of offences, often attracting a strong wave of social condemnation, as in the case of paedophilia. Apart from the events happening in the real world, a great number of such crimes is being committed in the Internet. Here, we come across borderline situations, where technology “contributes” spontaneously, sometimes without the knowledge and intention of the person using it – to the fulfilment of statutory attributes of a crime. That is why proceeding in such cases require an exceptionally scrupulous and accurate presentation of facts and relevant circumstances, often with the help of IT experts. In our practice as attorneys-at-law, we have already encountered such borderline situations more than once, which equips us even better to cope with future cases.

Crimes against the family and guardianship (domestic violence, physical and mental abuse of family members, persistent evasion of alimony)

This is a group of crimes with a well-established “tradition”. Nevertheless, in times where stress and life frustrations become an increasingly common phenomenon, and where an intensified professional activity has great repercussions on family life, this group of crimes is becoming more and more noticeable (they constitute approximately 7-8% of all crimes committed). In the case of a refusal to pay alimony, the recent tightening of the content of Article 209 of the Penal Code (the ambiguous and abused condition of “persistence” of evasion has been erased) means that this crime is dealt with to a greater extent and with an increased severity by the justice system.

Crimes against freedom (criminal threats, blackmail, stalking, etc.)

These crimes, as in the other groups of crimes discussed here, occur en masse in the Internet space. Paradoxically, while in other groups of crimes the virtual aspect may be a certain complication (requiring specialist expertise), in this case it is of great convenience (for the victim of such a crime) or hindrance (for the perpetrator), because the basic evidence is easily accessible, fixed. This is especially true in the case of stalking and criminal threats, where the intimidating or harassing person, usually acting in strong affect, produces evidence against him- or herself.

Crimes against honour and physical inviolability (defamation, insult, violation of physical integrity, etc.)

These offences have become increasingly common, mainly, once again, due to how widely defamation and insults can be spread through the Internet. Nevertheless, criminal law has already developed case law in this relatively new sphere of human activity, which enables an objective and fair assessment of such situations. Our attorneys have dealt with this type of cases on numerous occasions, which allows us to create an appropriate strategy for the proceedings.

Against state security (espionage)

These are relatively rare, even exceptional crimes. Nevertheless, our law firm has professional experience in this field as well.

Crimes against the activity of state institutions (bribery, paid protection, abuse of power or failure to perform duties by a public official, etc.)

Bribery is nowadays a field of activity of specialised services such as CBA or CBŚ. Despite the increasing professionalism of these services, also here there is room for an effective defence, relying on detailed analysis of evidence, control of procedural correctness, careful questioning of witnesses, etc.

Crimes against information protection (unlawful acquisition of information, destruction or damage to computer data, interference with computer systems, etc.)

As social and economic life is increasingly based on complex and ubiquitous IT systems, the related threats are also growing. Hacking and technological sabotage are prime examples of this trend. As with other cybercrimes, proper fact-finding cannot take place without specialist IT expertise and expert opinions.

Przestępstw przeciwko mieniu (kradzież, kradzież z włamaniem, rozbój, przywłaszczenie, paserstwo, oszustwo, oszustwo komputerowe, wyłudzenie dotacji etc

To największa i najpowszechniejsza grupa przestępstw. Stanowi ona blisko 50% wszystkich popełnianych przestępstw. Niemniej w ostatnich czasach w przypadku przestępstwa oszustwa następuje wyraźne przesunięcie go do internetu i świata wirtualnego. Powoduje to coraz to nowe spektrum stanów faktycznych wymagających stosowania nowych instrumentów technologiczno- informatycznych. Jednakże zasadnicze reguły pozostają niezmienione i prawo karne wypracowało już określone sposoby oceny takich sytuacji. Adwokaci naszej kancelarii mieli niejednokrotnie możliwość zmierzenia się z tego rodzaju sprawami.

Crimes against the credibility of documents (forgery, false certification, etc.)

In the world of mass document circulation (also in electronic form), this is a very frequently committed crime (accounting for approx. 7% of all crimes committed). It often requires the expertise of experts in computer science or graphology, and, then, a scrupulous and critical evaluation of such expertise, which is one of the main tasks of the defence.

Property crime (theft, burglary, robbery, misappropriation, fencing, fraud, computer fraud, grant fraud, etc.)

This is the largest and most common group of crimes. It accounts for nearly 50% of all crimes committed. However, in recent times, the crime of fraud has clearly moved to the Internet and the virtual world. This results in a new spectrum of facts requiring new technology- and computer-related methods of analysis. However, the fundamental rules remain unchanged, and criminal law has already developed clear ways of assessing such situations. Our lawyers have had the opportunity to deal with this type of case more than once.

Embezzlement of EU grants and extortion of educational subsidies
There is also a different variant of fraud, or, in fact, a combination of fraud and extortion, in which we have trial experience, that is, embezzlement of EU subsidies, and extortion of educational subsidies. This, similarly to the above-mentioned bribery offences, is the field of activity of special services, such as, among others, regional prosecution offices, the Internal Security Agency and the CBA. As the amounts involved are usually considerable, we are often dealing here with secret operational methods of these services, such as wiretapping and police provocations. Since this may often involve operating on the borderline of regulations, there is room for defence here. Due to the complexity of these sub-types of fraud, we allow ourselves to present them in a little more detail:
Embezzlement of EU grants

Here, liability is based on the provisions of the Criminal Code on fraud (Article 286 of the Penal Code), financial fraud (Article 297 of the Penal Code), money laundering (Article 299 of the Penal Code) and often the certification of untruths (Article 273 of the Penal Code) or falsification of documents (Article 270 of the Penal Code). This crime usually involves overstating invoices issued by business entities as part of projects financed by the EU. Payment of such overstated invoices results in the project value being unjustifiably higher than it should be and, consequently, in an unjustified spending of public money (as EU subsidies are considered to be public money). As a rule, criminal cases of this kind have a very extensive body of evidence, with files amounting to several dozen volumes and many witnesses being questioned. This undoubtedly also constitutes a very large field for the defence to operate and look for its own “window of opportunity”. The experience gained by advocate Maciej Kacprzak in this type of cases allows him to build the best possible defence strategy.

Extortion of educational subsidies

This type of prohibited act is related to activities in the field of education involving running a school, kindergarten or other educational institution. The conditions for receiving educational subsidies from the state and the purposes for which they can be spent are strictly defined precisely in the Education Law (Act of 14 December 2016). The spending of subsidies is subject to periodical inspections by their administrators. If the controller comes to the conclusion that the subsidies have been used for purposes not compliant with the Act, or their disbursement has been otherwise improper, he orders the subsidies to be returned. Because the period under scrutiny is usually relatively long, it often amounts to a significant sum, counted in tens or even hundreds of thousands PLN.

Economic crimes (white collar crimes, extortion of credit, extortion of compensation, money laundering, harming a creditor, etc.)

This type of crime needs to be explained in a little more detail. It is a truism to say that trade and economic activities have always been accompanied by fraud. However, the current times, although not unique in this respect, are characterised by the increasing complexity of economic relations, the emergence of new fields of activity and the development of new technologies. This causes not only an increase in the number of economic crimes themselves, but also a significant increase in their possible varieties. At the same time, it should be added that = an “abuse” of the criminal economic law does not always have to mean a violation of the law understood in the traditional manner. We often have to deal with borderline, doubtful or even precedent-setting situations due to the lack of analogous cases in the past.

Most of economic crimes have been specified in the Criminal Code. Below, we present the most notable ones:

Abuse of trust or breach of duty (Article 296 of the Criminal Code)

Dealing with the interests of an economic entity is connected with yet another type of liability consisting in an abuse of power by a manager or a failure to comply with his/her obligations. In its basic type (Article 296 § 1 of the Penal Code), it provides for liability of a manager conditional on causing considerable property damage, i.e. in accordance with the wording of Article 115 § 5 of the Penal Code in excess of PLN 200,000. If the damage caused by the manager reaches the size of a large-scale damage, i.e. exceeds the amount of PLN 2,000,000, then an aggravated liability comes into play, provided for in Article 296(3) of the Penal Code. 

As can be seen from the above, the range of possible situations falling under the discussed category is very wide. Consequently, there is a wide range of possibilities to conduct an effective criminal defence.

Managerial bribery (Article 296a of the Criminal Code)

The offence of bribery consists in drawing a personal benefit or a promise of such benefit in return for inflicting damages to the entity in which one holds a managerial position . Bribery is an abuse of power or a failure to fulfil obligations. It is noteworthy that a person who gave or promised to give a financial benefit is also subject to punishment for bribery, unless he or she voluntarily discloses the receipt of the benefit or promise to the law enforcement authorities along with all the relevant information. This solution is intended to break the “conspiracy of silence” between the one who gives a bribe and the one who accepts it, based on preconceived mutual benefits of the persons participating in this situation.

According to the professional experience of advocate Maciej Kacprzak, this type of crime is most often detected as a result of a notification made by the person who was on the other side of the situation. The specificity of bribery cases is that the evidence is mainly based on the testimony (in recent times often in the form of secret audio recordings) of the persons directly involved in the corrupt situation, most often those who decided to break the “conspiracy of silence”. This procedural situation alone embraces a whole range of potential borderline situations.

Fraud, credit fraud (Article 297 of the Criminal Code)

The notion of a credit fraud (defrauding) covers many types of acts. This is apparent from the wording of the provision penalising this offence, which lists a number of circumstances in which the crime may be committed. Pursuant to Article 297 § 1 of the Penal Code, whoever, in order to obtain for himself or for someone else, from a bank or organisational unit conducting similar business activity pursuant to the act or from an authority or institution managing public funds – a credit, cash loan, surety, guarantee, letter of credit, grant, subsidy, confirmation by the bank of an obligation arising from the surety or guarantee, or similar cash benefit for a specific economic purpose, or a public order, submits a forged, counterfeited, false document or an unreliable written statement on circumstances which are material for obtaining the financial support, payment instrument or public order, is subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years. The common denominator in this crime is fraudulent acquisition of funds.

In the practice of our law firm, we come across credit fraud all too often. A large proportion of these relate to small cash loans, in which the borrower submits a false certificate of earnings. What is important, it is often forgotten that in order for a crime to be committed, it is not important whether the borrower can (or wishes to) later return the money lent. What matters is the fact of being misled. By committing this offence there is, however, a chance of being treated more leniently by the court by withdrawing in due time, or by taking remedial action which may protect against conviction. Maciej Kacprzak, advocate, in defending clients in this type of cases acts in a multifaceted manner, i.a. by examining perpetrators under § 3 of the above-mentioned provision, which provides that one is not liable to punishment who, prior to initiation of criminal proceedings, voluntarily prevented the use of financial support or a payment instrument referred to in § 1, resigned from a subsidy or a public procurement or satisfied the claims of the injured party.

Money laundering (Article 299 of the Criminal Code)

The term “money laundering” means nothing else than concealing illegal sources of funds and making them legal, including their inclusion in the legal money circulation. The sources of such money may be e.g. untaxed economic activity, movable and immovable property connected with criminal activity, e.g. drug trafficking, illegal gambling, objects obtained as a result of theft, tax fraud or violations of customs law. Law enforcement agencies, in tracking down the perpetrators of the above-mentioned crimes, have various tools at their disposal, e.g. under the Act on combating money laundering and terrorist financing, banking law and EU directives.

In order to “legalise” funds from illegal sources, mechanisms are created under which funds are transferred to the place of their legalisation, followed by separation of illegal profits from the source, removal of traces, strengthening of anonymity of persons involved in the crime. A feature of this procedure is the large number of transactions, as well as the techniques used, such as electronic transfers to foreign banks, transfers to the accounts of a fictitious client. Ultimately, the process ends with an inability to identify whether the resources come from legal or illegal activity.

It must be remembered that the responsibility for money laundering may also be borne by a person who merely made preparations for it, but also by an employee of a bank or other financial institution who is obliged to monitor transactions, which means that the circle of entities covered by this charge may be significant. The penalty for money laundering is severe, because it is up to 8 years imprisonment (in the case of acting jointly and in agreement with another person even up to 10 years).

Facing a charge of money laundering gives an experienced lawyer, who undertakes a defence, a lot of room for manoeuvre, as there is a wide range of evidentiary possibilities to establish the circumstances which are significant for the question of criminal liability. Many facts can also be given appropriate weight through skilful interpretation.

Prevention or depletion of satisfaction of a creditor (Art. 300 of the Penal Code)

Consisting in preventing or depleting the satisfaction of a creditor by removing, concealing, selling, donating, destroying, encumbering or damaging, whether real or apparent, components of one’s assets, or performing the above actions in order to prevent the execution of a decision by a court or other state authority.

Apparent bankruptcy and transfer of property to a new entity (art. 301 of the Penal Code)

Which consists in the fact that a person who is a debtor to several creditors prevents or restricts the satisfaction of their claims by creating a new business entity and transfers its assets to it, or, being a debtor to several creditors, leads to his/her own bankruptcy or insolvency, or finally, being a debtor to several creditors, recklessly leads to his/her own bankruptcy or insolvency, in particular by squandering parts of his/her assets, taking on liabilities or concluding transactions that are obviously contrary to the principles of economy. The characteristic feature of this offence is the condition, common to all situations, that the person charged under this provision must be indebted to several creditors (one or two are not sufficient). The observations made in the course of the practice of attorney Maciej Kacprzak also indicate here the existence of a number of borderline situations and based on discretionary discretion against the background of “recklessness” in bringing about one’s bankruptcy. Here, the presumed “recklessness” can partly overlap conceptually with the permissible risk in the context of business activities.

Favouring selected creditors, bribery in enforcement proceedings (Article 302 of the Penal Code)

This offence is committed by a person who, in the event of imminent insolvency or bankruptcy, being unable to satisfy all creditors, pays or secures only some of them, thus acting to the detriment of the others, or gives or promises to give a material benefit for acting to the detriment of other creditors in connection with bankruptcy proceedings or proceedings aimed at preventing bankruptcy. It is characteristic that in the case of bribery in enforcement proceedings, similarly as in the case of managerial bribery, a person who accepts a benefit for acting to the detriment of other creditors or demands such a benefit is also subject to punishment.

Liability of management board members for company obligations.

Due to the common nature of the functioning of capital companies (limited liability companies, joint-stock companies and limited jointstock partnerships), the issue of management (and supervisory) offences requires further discussion. Holding the position of a management board member in a capital company not only means prestige, but it is also burdened with great responsibility. Criminal liability of a member of the management board of a capital company may occur when a crime is committed in connection with the function held, as well as when a crime is committed while sitting on the management board, taking advantage of one’s position and committing a crime not related to the company’s activity.

Most of the grounds for criminal liability of members of management boards derive from the provisions approximated above, i.e. abuse of power or breach of duty, managerial bribery, frustrating or depleting the satisfaction of a creditor, apparent bankruptcy, favouring selected creditors.

Apart from the aforementioned grounds for liability stipulated in the Penal Code, there are also potential threats of criminal consequences resulting from the provisions of the Commercial Companies Code and the Bankruptcy and Reorganisation Law. Pursuant to Article 585 of the Code. criminal liability is imposed on a member of the company’s authorities (i.e. not only the management board, but also the supervisory board or the audit committee) acting to the company’s detriment. It should be noted here that the notion of “acting to the detriment of the company” is a vague term that may cover a number of borderline or doubtful situations. Therefore, this is a field of pursuit for the defence counsel. Criminal liability of members of the management board also arises from failure to file a timely motion for the company’s bankruptcy despite the fact that the conditions which according to the regulations justify the company’s bankruptcy have arisen (art. 586 CCC, art. 317 of the Bankruptcy and Reorganisation Law). Also, failure to submit financial statements in due time may result in criminal liability under Article 79 of the Accounting Act. This is an increasingly frequently enforced criminal liability.

Regardless of the criminal liability, the civil liability of board members for the financial obligations of the company incurred while holding office, which arises under Art. 299 of the Code of Commercial Companies, requires attention. These two types of liability are often proceeded against in parallel.

Fiscal offences
This type of offence is regulated by the Fiscal Penal Code. They are connected with situations in which public and legal dues - state or local government dues (e.g. taxes, customs duties) are lowered in order to achieve financial benefit. The gravity of a given offence, as well as the penalty for it, depends on, inter alia, the type and extent of negative consequences of the committed act, the type and extent of breach of financial obligation imposed on the offender, as well as the behaviour of the offender after committing the offence. Depending on whether the amount of the unpaid public receivables exceeds the statutory threshold of five times the minimum wage, we will be dealing with a crime or a milder version - a fiscal offence.
Smuggling, manufacturing, trafficking and possession of drugs.

Criminal liability here results from the provisions of the Act on Counteracting Drug Addiction. There are relatively many such offences (approx. 60,000 per year), most of which are sanctions for possession of the proverbial “grass”. More serious criminal liability is associated with the production, trafficking and smuggling of drugs. Those dealing in so-called “legal highs” are also liable under this law.

The offence of illicit manufacturing of excise goods (cigarettes, alcohol)

As the recent years have seen an exponential increase in the number of illegal cigarette factories, this is a prohibited act that is increasingly frequently prosecuted by the justice system. The temptation and “attractiveness” of committing this offence stems from the steady increase of excise duty and, consequently, from treating the non-payment of this duty as a profit. Committing this offence is connected with the charge of participating (sometimes leading) in a criminal group (Article 258 of the Criminal Code). It should be noted that criminal liability affects every participant in such a venture, including a “grey” employee of an illegal factory. Irrespective of the penalty, the problem here may be the obligation to pay back substantial amounts of money – as a return of the benefit gained or, in the case of organisers, additionally the obligation to pay due taxes.

Our Law Office also represents clients in misdemeanour cases. Among the most common are:
  • offences against traffic safety and order (driving under the influence of alcohol, driving without authorisation, breaking speed limits, etc.). These are very common offences. The blood alcohol level limit for drink-driving is 0.5 promille (0.25 mg/l). If the levels of alcohol in the blood fall below 0.5, it is regarded as “driving in an after-use state”, and perceived as misdemeanour. However, despite this being a misdemeanour, the penal consequences for the offender may be considerable. In particular, a driving ban can be imposed for a period of between 6 months and 3 years.
  • offences against property (theft or misappropriation, receiving stolen goods)
  • offences against a person (malicious disturbance, dog fouling, violation of parental and custodial duties). In this group of offences, the so-called "neighbourhood" offences, consisting of disturbing and malicious nuisance, are gaining in importance.

What is the course of action in criminal cases?

The first very important stage of our cooperation with the client is the preliminary interview, during which the client has the opportunity to tell us the facts of the case from his or her perspective and to present any documents or other evidence related to the case. Of course, this must be a very frank conversation, as there is nothing more counter-productive than presenting a distorted picture of the situation to your lawyer, or even worse, hiding the relevant facts. Our lawyers, on the other hand, always stick to the principle that their assessment of the situation should be realistic. We are not in the habit of ``powdering`` the reality, applying wishful thinking, or adjusting our assessment to what the client would like to hear, because this is a road leading nowhere. Our assumption is that the client comes to us in order to receive a true, realistic assessment, and exclusively on this foundation develop the best strategy possible. When we provide our diagnosis of the situation, we also present the client with the financial aspects of leading his or her case. If the client accepts the plan of action and the financial requirements, we sign a contract, which clearly and transparently sets out the terms and conditions of cooperation.

Practice and professional experience show that the presence of a defence counsel is strongly desirable already at the earliest possible stage of preparatory proceedings conducted by the public prosecution. It is often at this very stage where procedural events take place, which give direction to the further course of the case, having a deciding impact on the content of the charges (or further indictment) or leading to discontinuance of the case (with the prosecution refraining from formulating an indictment). Therefore, in preparatory proceedings, we participate in all significant procedural actions in which the presence of a defence counsel is admissible.
If the evidence is unequivocal and not disputed by the client, there is a possibility to agree on the sentence with the prosecutor and to submit to that sentence voluntarily by the client, which leads to a quicker conclusion of the case, saving costs, time and the nerves of the client. Nevertheless, our attorneys recommend such voluntary submission to the client only if the client is fully convinced about this decision. If there are any doubts concerning the case, it is better to give the client a chance to clarify them before the court in the course of a normal trial.

The court stage is the core of criminal proceedings, and it is here that the role of the defence counsel is most clearly highlighted. It is at this stage that the adopted defence strategy is fully implemented, witnesses and experts are examined, and other procedural acts are performed. Then, on the basis of the accumulated trial material, an analysis is made and presented by the defence counsel in his final speech. If the verdict issued by the court is not satisfactory, the defence counsel or (if representing a victim of a crime) the attorney files an appeal and represents the client in the appeal proceedings. In exceptional situations, when the verdict of the appellate court still raises doubts, the defence counsel may file a cassation appeal to the Supreme Court.
The final, and equally important, stage of a criminal case is executive proceedings. In spite of the fact that the main stage, i.e. court proceedings, has been completed, a number of possibilities is still available in executive proceedings as well, which may be turned to the convicted person's advantage. It is enough to mention, for example, an execution of sentence under conditions of electronic supervision, a conversion of a penal measure in the form of a ban on driving into using the so-called alcohol blockade, a division of fines and court costs into instalments, or a conditional early release from serving a prison sentence. The attorneys of our law firm often succeed in pursuing these key changes to the sentence.

The main area of our activity is the city of Poznan and towns in the immediate vicinity, but if necessary, we also appear before judicial authorities in other regions of the country.