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Blocking of a bank account by a prosecutor in Poland

The blocking of a bank account in Poland by the prosecutor poses a serious practical problem, especially when it is applied to a business entity. This is because the blocking of a bank account results in a situation where the entrepreneur is deprived of the ability to dispose of his funds in the bank account(s) up to the amount of the block. In practice, this means that the account holder cannot perform any financial operations related to the account(s), such as transfers, cash withdrawals or credit card payments.

The purpose of this article is to indicate what are the legal options for appealing the blocking of a bank account in Poland by the prosecutor and what arguments should potentially be raised in a complaint against a decision to block funds in the account.

When an entrepreneur becomes aware of the blocking of funds in a bank account in Poland, the first thing he should do is to determine which authority made the decision to block the account and whether a relevant decision has already been issued by the prosecutor. Based on the case reference information, one can then attempt to obtain information on the status of the case and potential actions that can be taken to unblock the bank account or defend against the charges.

The prosecutor is required to effectively serve an order to block the bank account. This order is the formal document that is the legal basis for the action taken by the prosecutor.

Subsequently, in many states of facts, it may be reasonable to file an appeal against the decision, i.e. – a complaint against the account blockade. The complaint can be filed within 7 days of receipt of the blocking decision. Although this deadline is extremely short, as a rule, it cannot be “extended” in any way. It seems important, therefore, to take legal action as soon as possible in the event of account blocking. A complaint against the blocking of a bank account in Poland should be filed with the relevant court through the prosecutor who issued the blocking order.

As a consequence of filing a complaint, the prosecutor has two options for further legal action:

can change its decision and release the funds – although in our experience, in most cases, prosecutors do not change their decision, can transfer the case file with the complaint to the court, which will schedule a complaint hearing to consider the arguments of both parties.

Referring to the arguments that can be presented in a complaint against a court decision, it is worth noting at the outset the recent position of the Supreme Court in its resolution of October 13, 2021, ref. I KZP 1/21. In the resolution, the Supreme Court explicitly acknowledged that the blocking of a bank account in Poland can cause far-reaching disadvantages for the person affected, certainly limiting economic freedom and, in extreme cases, outright preventing business activity. At the same time, the court noted that such a legal measure, by its very nature, has an exceptional character, and its application can be justified only by the most serious threats to the functioning of the State, especially those indicated in the Law on the prevention of money laundering and terrorist financing. Since, on the one hand, this measure is exceptional in nature, and on the other hand, it involves far-reaching impediments, primarily in terms of freedom of economy, for a person who has not yet been charged in a criminal trial, then its application must be limited in time to the necessary minimum. The Supreme Court’s position seems to be as correct as possible, and when filing a complaint, it should be kept in mind when addressing the arguments presented by the prosecutor.

In our experience, as a rule, the justifications for orders to block an account are formulated by law enforcement agencies in extremely laconic and general terms, for example:

  • “in view of the reasonable suspicion that a crime has been committed and in an effort to prevent further activities of a criminal nature (…)”
  • “in view of the significant probability that the activities of company XYZ may have been used for money laundering, as evidenced by transfers to the accounts of companies based in third countries (…) and significant flows.”

Consequently, when formulating effective counter-arguments in a complaint against a bank account blocking order, first and foremost, one should always bear in mind to submit as much evidence as possible to prove the legality and integrity of the business, for example, such as contracts, invoices, accounting records, explanations, etc. Of course, the extent of the documentation submitted will vary in each state of facts. Importantly – in a situation where the documents have been drawn up in a foreign language, they must be translated into Polish by a sworn translator, bearing in mind, of course, the 7-day deadline for filing a complaint.

It should also be borne in mind that according to the procedure of the Code of Criminal Procedure, after filing a complaint, if the prosecutor’s decision is upheld, the Court will schedule a hearing. The purpose of the hearing will be to hear the complaint and the response to the complaint about the blocking of funds in Poland in case it is filed by a law enforcement agency. Consequently, during the period of time between the filing of the complaint and the recognition of the complaint at the hearing (which can take up to several months), further evidence should be gathered in order to most fully present and argue your procedural position.

It is also worth bearing in mind that the judge’s proper consideration of the complaint may be hampered by a lack of detailed knowledge of the details of the entrepreneur’s business activities in the context of money laundering mechanisms. The judge may have limited information on the specifics of a particular economic sector or specific transactions, which may affect his ability to properly understand the context of the case. It is therefore important to try to explain any financial or tax issues in as simple and understandable a manner as possible, although this may not be easy in many factual situations.

In our experience, in a number of cases in the complaint, it also seems reasonable to indicate that any “automatism” in the application of account blocks should be excluded. The prosecutor should always precisely demonstrate that, based on the evidence gathered in the course of the proceedings, there is a high probability that a crime has been committed – depending on the phase of the proceedings by either the suspect or the defendant. In practice, however, prosecutors often point to the “developmental nature of the case,” which in their view justifies the application of a bank account block. In our opinion, in this type of situation of application of “automatism”, this should be reflected in the wording of the complaint.

The prosecutor should also demonstrate the specific and precise purpose of applying the account blockade in each case. Otherwise, it will be impossible to show that there has been a violation of the so-called principle of proportionality, i.e. the adequacy of the measure applied by the prosecutor to the facts. In a situation where the prosecutor fails to indicate the fulfillment of the above-mentioned premise, it seems absolutely necessary to raise the above argument.

In the context of considering the grounds for a complaint against the blocking of a bank account in Poland, it is also worth noting the position of the Ombudsman in a letter to the Minister of Justice. The Ombudsman pointed out that “the above-discussed [provisions – author’s note] create an inconsistent system of blocking funds in Poland in the account to various degrees violating the principle of correct legislation as derivative from the principle of a democratic state of law from Art. 2 of the Constitution of the Republic of Poland, and violating the guarantees underlying international law (Article 1 of Protocol No. 1 to the ECHR) and constitutional protection of property (Article 64(2) of the Constitution of the Republic of Poland), guarantees derived from the principle of the right to judicial review of the decisions of state bodies (…), and violating the right to an effective remedy (…). In view of the above, I kindly ask the Minister to consider initiating legislative work in the described scope (letter of the RPO to the MS dated 03.08.2023, mark: II.510.170.2023.PZ).” It seems, therefore, that if there are even minimal grounds for filing a complaint against bank seizure orders, the entrepreneur should take these steps.

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Mateusz Radomyski

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