Actual coverage of the funds in the account by order on physical evidence under Polish criminal procedure

Abstract

The subject of this article is a consideration of recent changes to the current Polish criminal procedure. The changes concern in particular the investigation. Initially, the Supreme Court issued two resolutions, which eliminated the actual coverage of the funds in the account by order on physical evidence (this is a legal fiction - funds in an account are not physical objects). At that time, the public prosecutor could only use the "transaction suspension" or "blocking of an account" to freeze the funds. Later, the Polish legislator added Art. 236b to the Code of Criminal Procedure. The purpose of this provision is to outdate the above-mentioned resolutions. Instead of a suspension or blockade, the actual coverage of the funds in the account by order on physical evidence may take place. However, in the authors' opinion, this should only take place in the case of an ultima ratio action. This means, firstly, the end of the maximum duration of the "transaction suspension" or "blocking of an account" and, secondly, the impossibility to apply property collateral. These restrictions are not currently in Polish law. This means that the Polish public prosecutor can theoretically omit the provisions on the "transaction suspension" or "blocking of an account". This possibility applies to fiduciary currencies and virtual currencies. This paper may be useful in considering the options currently available to the public prosecutor in relation to a request for legal assistance to Polish law enforcement authorities which concerns the seizure of funds in an account.

Keywords

• transaction suspension
• blocking of an account
• physical evidence
• fiduciary and virtual currency
• demand for surrender of items
• search