Who is a subsidiary prosecutor?
A subsidiary prosecutor is an injured party who, in specific circumstances, brings and supports an indictment in a criminal case instead of the public prosecutor. In Polish criminal procedure, this role is known as oskarżyciel posiłkowy subsydiarny. It is relevant where an offence is prosecuted by public indictment, but the prosecutor has refused to initiate proceedings or has discontinued them. After the injured party has successfully challenged that decision and the prosecutor, after reconsideration, again refuses to initiate proceedings or again discontinues them, the injured party may, if the statutory conditions are met, file an indictment directly with the court.
The institution of the subsidiary prosecutor gives the injured party a procedural route to pursue criminal liability when the prosecution service does not bring an indictment. It does not mean that every disagreement with a prosecutor’s decision allows the injured party to file a case in court. Polish law sets formal and procedural requirements for this step. In particular, the injured party must first use the available complaint mechanism against the prosecutor’s decision, and the possibility of filing a subsidiary indictment arises only after the conditions provided in the Polish Code of Criminal Procedure are satisfied.
A subsidiary prosecutor acts as a party to the criminal proceedings. This means that the injured party may present arguments, submit evidence motions, take part in hearings, challenge certain decisions and support the accusation before the court. The role is therefore more active than the position of a passive victim or witness. At the same time, it requires proper preparation, because the court assesses the indictment and the evidence according to criminal procedure standards.
What does a subsidiary prosecutor do?
The main function of a subsidiary prosecutor is to bring a criminal case before the court when the public prosecutor does not file an indictment, despite the injured party’s position that there are grounds for prosecution. This may concern offences such as fraud, forgery, misappropriation, threats, bodily harm, non-maintenance or other acts prosecuted by public indictment, depending on the facts of the case.
In practice, the subsidiary prosecutor must be able to identify the accused person, describe the alleged act, indicate the legal classification of the offence and present evidence supporting the accusation. The indictment must meet the formal requirements of criminal procedure. Under Article 55 of the Polish Code of Criminal Procedure, a subsidiary indictment is filed within a statutory time limit after service of the repeated prosecutorial decision, and it must generally be prepared and signed by a professional legal representative, such as an advocate or attorney-at-law. The one-month time limit follows from Article 55 § 1 of the Polish Code of Criminal Procedure.
The subsidiary prosecutor may also take part in evidentiary proceedings. This includes requesting the examination of witnesses, seeking the admission of documents, responding to statements made by the defence, and presenting final submissions. The court is not bound by the injured party’s assessment of the case. It independently evaluates whether the evidence proves the accused person’s guilt beyond the standard required in criminal proceedings.
This role should be distinguished from a non-subsidiary auxiliary prosecutor who joins proceedings already initiated by a public prosecutor. A subsidiary prosecutor steps in where the public prosecutor has not brought the indictment, while an auxiliary prosecutor usually supports a public prosecution that is already pending before the court.
When is it worth considering the role of a subsidiary prosecutor?
Legal support may be needed when an injured party receives a decision refusing to initiate an investigation or discontinuing proceedings and considers that the decision overlooks relevant evidence, misinterprets the facts or applies the law incorrectly. The first step is usually to analyse the prosecutor’s decision and assess whether a complaint is justified. If the complaint results in the decision being set aside and, after further prosecutorial review, the case is again discontinued or refused in circumstances covered by the Code of Criminal Procedure, a subsidiary indictment may become an available option.
Private individuals may consider this path in cases involving harm to property, health, personal freedom, privacy or family-related obligations, provided that the offence is one for which subsidiary prosecution is legally possible. Entrepreneurs may need this mechanism in cases involving commercial fraud, falsified documents, unlawful disposal of assets, misuse of entrusted property, unfair conduct by counterparties or other conduct that may amount to a criminal offence and has caused financial loss.
A quick consultation with a lawyer can help determine whether the procedural conditions for subsidiary prosecution have been met, whether the evidence is sufficient, and whether filing an indictment is strategically justified. Early legal assessment may also reduce the risk of missing a statutory deadline, submitting an ineffective pleading, pursuing a case with insufficient evidentiary support or incurring unnecessary procedural costs.
Legal risks and practical considerations
Subsidiary prosecution is not merely a formal continuation of a complaint against the prosecutor. It shifts a significant part of the initiative to the injured party. The indictment must be precise, factually grounded and procedurally correct. Weak evidence, unclear description of the alleged act or incorrect legal classification may affect the prospects of the case.
The public prosecutor may later join proceedings initiated by a subsidiary indictment if the prosecutor considers it justified. However, the injured party should not assume that this will happen. The case must be prepared as if the subsidiary prosecutor will have to actively support the accusation throughout the proceedings.
Support of a law firm in subsidiary prosecution matters
Support in matters involving a subsidiary prosecutor may include in particular:
- analysis of decisions refusing to initiate or discontinuing criminal proceedings,
- assessment of whether the conditions for filing a subsidiary indictment are met,
- preparation of complaints against prosecutorial decisions,
- drafting and filing a subsidiary indictment,
- identification and organisation of evidence, including documents and witness testimony,
- representation of the injured party before the criminal court,
- preparation of procedural motions, written submissions and appeals,
- coordination between criminal proceedings and related civil, commercial or compensation claims.
Need assistance with a subsidiary prosecutor matter? Contact us.
See also
- Injured Party
- Indictment
- Forgery
- Perjury