PART XII
Procedure in criminal cases in international relations
Chapter 62
Judicial assistance and service of documents in criminal cases
Article 585. The actions necessary in criminal proceedings may be conducted by way of judicial assistance, particularly the following :
(1) service of documents on persons staying abroad or on agencies having their principal offices abroad,
(2) taking depositions of persons in their capacities as accused persons, witnesses, or experts,
(3) inspection and searches of dwellings and other places and persons, confiscation of material objects and their delivery abroad,
(4) summoning of persons staying abroad to make a personal voluntary appearance before the court or state prosecutor, in order to be examined as a witness or to be submitted to confrontation, and the bringing of persons under detention, for the same purposes, and
(5) giving access to records and documents, and information on the record of convictions of the accused.
(6) advising on the law.
Article 586. § 1. The request to have a document served upon a person who is a Polish national and is staying abroad, or to have such a person examined as an accused, witness or expert, shall be addressed by the court or state prosecutor to a Polish diplomatic mission or consular office.
§ 2. If this action cannot be performed as provided for in § 1, such a request may be addressed to a court, prosecutors' office or other appropriate agency of the foreign state. If this request is for a search, for confiscation and delivery of a material object, the request should contain a duplicate copy of the order issued by the court or state prosecutor concerning the performance of this action in the given case.
Article 587. The official records of inspections, examinations of persons as accused persons, witnesses or experts, or records of other evidentiary actions prepared upon a request from a Polish court or state prosecutor, by the courts or state prosecutors of foreign states or by agencies performing under their supervision, may be read aloud at the hearing according to the principles prescribed in Articles 389, 391 and 393. This may be done provided that the manner of performing these actions, does not conflict with the principles of the legal order in the Republic of Poland.
Article 588. § 1. Courts and state prosecutors' offices shall give judicial assistance when requested by letters rogatory, issued by the courts and the state prosecutors' offices of foreign states.
§ 2. The court and the state prosecutors' office shall refuse to give judicial assistance and convey their refusal to the appropriate agencies of the foreign state in question, if the requested action is in conflict with the legal order of the Republic of Poland or constitutes an infringement of its sovereignty.
§ 3. The court and the state prosecutor may refuse to give judicial assistance if :
(1) the performance of the requested action lies beyond the scope of activity of the court or state prosecutor under Polish law,
(2) the foreign state in which the letters rogatory have originated, does not guarantee reciprocity in such matters, or
(3) the request is concerned with an act which is not an offence under Polish law.
§ 4. Polish law shall be applied to the procedural actions performed pursuant to a request from a foreign court or state prosecutor. However, if these agencies require special proceedings or some special form of assistance, their wishes should be honoured, unless this is in conflict with the principles of the legal order of the Republic of Poland.
§ 5. The fees for the judicial assistance shall be established pursuant to Articles 616 through 619.
Article 589. § 1. A witness or expert who is not a Polish national and who, when summoned from abroad, appears voluntarily before the court, cannot be prosecuted or arrested, or put under preventive detention either by reason of an offence relevant to the criminal proceedings, or of any other offence committed before he crossed the Polish border. The penalty imposed for such offence may not be executed with respect to him.
§ 2. Such a witness or expert shall forfeit the protection provided by § 1, if he fails to leave the territory of the Republic of Poland, although being able to do so within seven days from the day on which the court announces to him that his presence is no longer necessary.
§ 3. Witnesses or experts summoned from abroad shall be entitled to have the costs of their fare and stay reimbursed to them, and shall be compensated for lost wages; in addition, an expert shall be entitled to a fee for the opinion he has issued.
§ 4. The summons served on a witness or expert permanently residing abroad shall include a notice of the contents of § 1 through 3, and it shall not contain a warning on measures of coercion in the event of a failure to appear
Article 589a. § 1. With respect to a person deprived of liberty within the territory of a foreign state, extradited temporarily in order to testify as witness or to conduct other procedural action with his participation before a Polish court or state prosecutor, the circuit court for the place of the performance of the action shall order placing the extradited person in a Polish penal establishment or detention facility for the period of his stay within the territory of the Republic of Poland, but not exceeding the term of deprivation of liberty specified in the state which extradited the person.
§ 2. The order of the court shall not be subject to interlocutory appeal.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b)
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.