General remarks

Individual acts of domestic violence can potentially meet the conditions of several different crimes, such as:

• mistreatment
• rape
• breach of personal inviolability
• grievous or other bodily harm
• punishable threat
• others

It seems that mistreatment is particularly referred to in the context of domestic violence. Under the Criminal Code, anyone who mentally or physically mistreats a person close to them or another person in a permanent or temporary state of dependence to the offender, a minor or a person who is vulnerable because of their mental or physical condition is liable to imprisonment for between three months and five years.

If the mistreatment is carried out with particular cruelty, the offender is liable to imprisonment for one to 10 years.

If the mistreatment results in a suicide attempt by the afflicted party, the offender is liable to imprisonment for two to 12 years.

In principle, either the police or the prosecutor institute criminal proceedings ex officio in cases related to domestic violence. Neither a specific activity, such as filing a complaint, nor the permission of the aggrieved party is formally required.

In practice, the police get involved when either they obtain information about the potential commitment of a crime on their own (i.e., during an inspection) or they are notified about it by the aggrieved party, public authorities, a witness, etc.

Under the Code of Criminal Procedure, anyone who has knowledge that an offense prosecuted ex officio was committed has a citizen's duty to notify the public prosecutor or the police of this. Since it is merely a citizen's duty, in principle, there are no legal sanctions for not notifying the authorities. Similar specific obligations are restated under the DV Act. Under the said act, any person who witnesses domestic violence should inform the police, prosecutor or other entity acting to counteract domestic violence.

There are, however, certain exceptions in which there is a general legal obligation to inform about a committed offense. In particular, with respect to certain types of crimes, such as homicide, causing grievous bodily harm or certain cases of rape, failure to promptly inform an agency responsible for prosecuting such offenses may result in criminal liability.

Further, public and local government institutions that, in connection with their activity, learn of the perpetration of an offense prosecuted ex officio must immediately report the same to the public prosecutor or the police and, until the arrival of the authority appointed to prosecute offenses or the issue by this authority of an appropriate order, undertake actions necessary to prevent the loss of traces and evidence. A report of an offense or the police's own information confirming the perpetration of such an offense for which an investigation by the public prosecutor is mandatory, together with the gathered material, must be immediately submitted by the police to the public prosecutor, together with the material.

A similar obligation is also provided for in the DV Act, in accordance with which any person who, in connection with the performance of their official or professional duties, conceived a suspicion that a crime prosecuted ex officio using domestic violence was committed is under obligation to immediately inform the police or the prosecutor of it.

As the authorities are required to carry out proceedings and undertake actions ex officio, the law enforcement involvement is conditioned solely upon committal of a criminal offense.

However, in practice, law enforcement involvement depends on their ability to obtain information and evidence and, to some extent, the victim's cooperation.

In accordance with the Code of Criminal Procedure, the accused is presumed innocent until proven guilty. The accused does not have to prove their innocence or provide evidence against themselves.

Evidence in a criminal proceeding constitutes procedural means permitted by criminal law and serves to make determinations relevant to the outcome of a case. What may or may not be evidence in a criminal case is set out in the Code of Criminal Procedure.

There is no exhaustive list of means that may serve as evidence. On the contrary, in principle, any means that are not prohibited by the Code of Criminal Procedure are admissible.

According to the Polish criminal procedure, evidence can be divided into two main groups:

• Personal — explanations of the accused, testimonies of witnesses, opinions of experts and information obtained from them, etc.
• Material — autopsy of corpses, trial experiment, secured tangible and intangible traces, recorded conversations, etc. 

Division V of the Code of Criminal Procedure provides for specific rules of both admissibility and taking the evidence.

With certain exceptions, an evidentiary motion is dismissed in the following circumstances:

• examination of evidence is inadmissible
• circumstance to be proven is either irrelevant to the case or has already been proven in accordance with the statement of the applicant
• evidence is useless for ascertaining a given circumstance
• evidence cannot be taken
• evidentiary motion has obviously been submitted with the intention of prolonging the proceedings
• evidentiary motion has been submitted after the deadline set by the procedural authority, of which the party submitting the application was notified

There are no specific rules for conducting documentary evidence.

In accordance with the Code of Criminal Procedure, the accused is presumed to be innocent until their guilt is proven and affirmed by the final judgment of the court. Inability to effectively rebut the presumption of innocence triggers the applicability of the general in dubio pro reo principle and leads to an acquittal.

The in dubio pro reo principle is explicitly stated in the Code of Criminal Procedure. It means that irresolvable doubts are resolved exclusively in favor of the accused.

In accordance with the Code of Criminal Procedure, the authorities in charge of the proceedings form their convictions on the basis of evidence gathered and appraised at their own discretion, with due consideration given to the principles of sound reasoning and life experience.

Under Polish criminal law, circumstances that, broadly speaking, may be considered as affirmative defenses are set forth in Chapter III of the Criminal Code. They include, in particular, necessary self-defense, protective force, experiment, excusable mistake of fact or law, insanity and diminished sanity.

Other circumstances eliminating or reducing the guilt include, for instance, prescription and immunities.

In principle, in case of mistreatment, rape, breach of personal inviolability and punishable threat the willful intent is required.

The crimes of grievous or other bodily harm may also be committed unintentionally.

In accordance with the Criminal Code, anyone who before a prosecuting or judicial authority dealing with indictable offenses, indictable fiscal offenses, summary offenses, summary fiscal offenses or disciplinary transgressions falsely accuses another person of having committed an offense or a disciplinary transgression is liable to a fine, the restriction of liberty or imprisonment for up to two years.

Further, anyone who, by fabricating false evidence or by other deceitful measures, directs the prosecution against a specified person for an indictable offense, an indictable fiscal offense, a summary offense, a summary fiscal offense or a disciplinary transgression, or undertakes such measures in the course of proceedings, is liable to imprisonment for up to three years.

In certain cases, making false accusations may also constitute a punishable slander.

Generally, under Polish criminal law, there are no general provisions expressly addressing the issue of the consent of the victim.

Some types of crimes specifically indicate that a given behavior is only illegal if conducted without consent. For instance, under the Criminal Code, anyone who, using violence toward a pregnant woman or in any other way without her consent, terminates her pregnancy or induces her by force, or illegally threatens to terminate the pregnancy, is liable to imprisonment for between six months and eight years.

With respect to other crimes, there is an ongoing debate between legal scholars as to the effect of consent on criminal liability. It seems generally recognized that, in principle, there are no crimes if the infringement or threat to legal goods/interest has occurred with the consent of the holder of the given goods.

However, it is claimed that consent is only legally effective in the following circumstances:

• if it concerns goods of which the person giving consent can freely dispose
• if it is voluntary
• if it exists at the time of the act

Therefore, the exclusion of unlawfulness is only applicable to legal goods/interests that are completely at the holder's disposal. With regard to health and life, it is doubtful whether any kind of consent can limit the criminality of an act.

Both self-defense and insanity can lead to the exclusion of criminal liability, as discussed in Section 5.3 above.

A witness's duty to testify honestly and completely comprises a two-fold obligation. From a formal perspective, the Code of Criminal Procedure provides that any person summoned as a witness is obliged to appear and testify. There are certain cases in which an examination of a witness may be carried out remotely or in a different location.

The said procedural duty is further supplemented by a substantive component derived from the Criminal Code. In accordance with the Criminal Code, anyone who, giving testimony to serve as evidence in court proceedings or any other proceedings conducted on the basis of any law, gives false testimony or conceals the truth is liable to penalty. Consequently, witnesses are obligated to answer questions truthfully to the best of their knowledge.

A witness's duty to testify truthfully can also be derived from the wording of the oath that they are bound to swear: "Aware of the meaning of my words and responsibility before the law, I solemnly swear to tell the truth and conceal nothing from what is known to me."

The Code of Criminal Procedure sets forth a three-fold exclusionary route with respect to witness testimony:

• Inadmissibility of evidence

It is generally not permitted to examine certain witnesses. In particular, it is not permitted to examine the following as a witness:

• defense counsel or an advocate or legal adviser providing legal assistance to the detained person with regard to facts learned while giving legal advice or conducting a case
• clergy with regard to facts learned during confession
• mediator with regard to facts learned from the accused or the aggrieved party while conducting mediation proceedings, except for the information about certain listed offenses

• Right to refuse testimony

• A witness may refuse to testify if they are next of kin to the accused person.
• A witness may be released from an obligation to testify or provide answers to questions if that person has a particularly close personal relationship with the accused and the person applies for such a release.

• Right to refuse to answer questions

A witness may refuse to answer a question if the answer may incriminate the witness or the witness's next of kin.

Moreover, in some instances, the interrogation of a witness is only permissible after the applicable authorizations have been obtained. In particular, an appropriate supervisory authority or the court can only waive state secrets and professional confidentiality.

Other than the exceptions listed above, the Code of Criminal Procedure does not include excuses. Illness is generally not considered an adequate excuse. With regard to health-related incapacities, a witness may testify in the witness's residence (and, conversely, may not abstain from testimony altogether).

Witnesses who are concerned for their life, health, freedom or property have the right to give testimony anonymously.

In principle, children can be witnesses in criminal proceedings. However, there are special procedural rules pertaining to minors giving testimony. In particular, the following:

• If the person giving testimony is not yet 15 years old, procedures in which they take part should, if possible, be conducted with the attendance of a legal representative or a de facto guardian, unless it is contrary to the interest of the proceedings.
• The oath is not taken if the witness is not yet 17 years old.
• In cases concerning offenses committed with the use of violence or illegal threat, or offenses against sexual liberty and decency, or offenses against family and guardianship, a witness who, at the time of testifying, is not yet 15 years old may be subject to an examination upon the following conditions if their testimonies may be of vital importance to the case:

• They testify as a witness only once, unless important circumstances come to light, the clarification of which requires a second examination, or unless the accused who was not assisted by a defense counsel during the first testimony so demands.
• The examination is conducted by the court with the attendance of an expert psychologist. The participation of other persons is limited.
• The transcript from the examination is read at the main trial. If the vision and sound of the hearing were recorded, they should be played.

• In cases concerning offenses committed with the use of violence or illegal threat, or offenses against sexual liberty and decency, or offenses against family and guardianship, a minor injured party who, at the time of the examination, is 15 years old is examined by the use of technical devices allowing this procedure to take place remotely, with a simultaneous transmission of sound and vision, if there is a justified concern that the direct presence of the accused might hinder the witness's testimonies or have a negative impact on their mental state.
• Additional requirements may apply in case an injured party who is below the age of 15 at the time of the examination testifies as a witness.

Children may become victims of almost all types of crimes. Whether the age of the victim has an impact on the charges depends on the type of crime.

In particular, certain types of crimes may only be committed against child victims, such as sexual intercourse with a minor.

Other types of crimes may only be committed against certain groups of victims, which include minors. In the case of the mentioned mistreatment, anyone who mentally or physically mistreats a person close to them or another person in a permanent or temporary state of dependence to the offender, a minor or a person who is vulnerable because of their mental or physical condition is liable to imprisonment for between three months and five years.

In the case of certain crimes, the penalty may depend on the age of the victim. In particular, if the offender commits a rape toward a minor under the age of 15, they are liable to imprisonment for at least three years.

The age of the victims may also be taken into account by the court when passing sentence or penal measures. Under the Criminal Code, while imposing a penalty, the court especially takes into account the perpetrator's motivation and manner of conduct, particularly in the case of the commission of a crime against a person who is helpless due to their age or health condition, commission of the crime in complicity with a minor, the type and degree of the violation of the perpetrator's duties, the type and extent of negative consequences of the crime, the characteristics and personal conditions of the perpetrator, the perpetrator's way of life prior to the commission of the crime and their behavior after the commission of the crime, especially their efforts to redress the damage or to satisfy a public sense of justice in any other form, as well as the aggrieved party's conduct.

Finally, with respect to certain types of crimes against minors, the special rules regarding limitation periods and expungement apply.

In the case of mistreatment, anyone who mentally or physically mistreats a person close to them or another person in a permanent or temporary state of dependence to the offender, a minor or a person who is vulnerable because of their mental or physical condition is liable to imprisonment for between three months and five years.

If mistreatment is carried out with particular cruelty, the offender is liable to imprisonment for one to 10 years.

If mistreatment results in a suicide attempt by the afflicted party, the offender is liable to imprisonment for two to 12 years.

The Criminal Code also provides a set of rules regarding imposing penalties in case of relapse into certain types of crimes.

Moreover, the court may generally take into consideration the fact that the crime was a first-time offense when passing expungement, a sentence or penal measures.

Finally, it should be noted that, prior to the sentencing phase, a person accused of a criminal offense committed with the use of violence to the detriment of a person remaining in a common household with them may be ordered to leave the premises occupied together with the victim if there is a justified risk that the accused person would commit the criminal offense with the use of violence once again against the victim, especially when the accused person threatened to do so.

As discussed above, acts of domestic violence may constitute certain types of crimes and be subject to criminal penalties.

Under the Criminal Code, whoever fails to comply, in particular, with a court-imposed order to leave, for a determined period, the premises occupied together with a harmed party, a prohibition from contacting certain individuals, a prohibition from approaching certain individuals or a prohibition from leaving a specific place of stay without the court's consent is subject to the penalty of deprivation of liberty for between three months and five years.

The list of penalties set forth in the Criminal Code includes the following:

• incarceration
• liberty restriction
• fines

Furthermore, the Criminal Code provides a list of penal measures, which includes the following:

• prohibition against being in certain communities and locations
• prohibition against contacting certain individuals or leaving a specific place of residence without the court's consent
• order to leave premises jointly occupied with the aggrieved party
• obligation to remedy damage caused or compensate for harm done
• notifying the competent family court of the considered expediency of ordering the deprivation or restriction of parental or guardianship rights due to the commission of a crime against a minor or in complicity with them

There are also certain preventive (precautionary) measures that can be applied, such as police supervision, detention on remand, prohibition to leave the country and order to leave the premises. In principle, a preventive measure can be ordered to ensure the correct course of proceedings and, exceptionally, to prevent the accused from committing a new serious offense.

After the aggrieved party files a request, the penitentiary judge or director of the penal institution immediately notifies the aggrieved party and their legal representative, or the person under whose responsibility the aggrieved party remains, on the release of the convict from prison after serving a sentence, on the escape of the convicted person from prison or on the issuing of a decision on providing a convicted person with the following:

• passes
• temporary permission to leave the prison without supervision or without a convoy of a prison officer or the assistance of another trustworthy person
• breaks in executing the sentence
• conditional release

Polish law includes a preventive (precautionary) measure for provisionary detention. In accordance with the Code of Criminal Procedure, unless the aggrieved party waives this right, the court or the public prosecutor immediately notifies the aggrieved party, their statutory representative or the person with continuous custody about canceling, not extending or replacing provisional detention with another precautionary measure, as well as of the escape of the accused from custody.