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A person who is not a suspect, defendant or formal party to criminal proceedings may nevertheless require professional legal assistance. This may concern witnesses, owners of searched premises, persons whose documents or devices have been seized and other individuals whose rights are directly affected by investigative measures.
Since 21 July 2026, new rules have applied to the review of a prosecutor’s refusal to admit the legal representative of such a person. The amendment introduced judicial review and provides that the prosecutor’s refusal becomes enforceable only when it becomes final. Dziennik Ustaw
Defence counsel and legal representative
Polish criminal procedure distinguishes between defence counsel and a legal representative.
A suspect or defendant appoints defence counsel. An injured party and other parties, except the defendant, may appoint a legal representative under Article 87 § 1 of the Code of Criminal Procedure.
A person who is not a party may also appoint a legal representative where their interests in the pending proceedings so require. The representative may be an advocate or an attorney-at-law. API Sejm
The power to refuse admission under Article 87 § 3 applies only to a representative of a non-party. It does not provide a basis for excluding the representative of an injured party who is a party to the investigation or the defence counsel of a suspect.
When may the prosecutor refuse?
The prosecutor may refuse to admit a representative of a non-party where they consider that the protection of that person’s interests does not require legal representation.
Although this assessment involves discretion, it is not unlimited. Relevant circumstances may include the nature of the procedural measure, its possible impact on the person’s rights and obligations, the risk of criminal, professional, disciplinary or financial liability, the need to protect confidential information and the person’s ability to protect their own interests.
Appointment of a representative does not automatically create a right to participate in every investigative measure. The right to attend a specific interview, search or other act must also follow from the nature of that measure and the applicable procedural provisions.
Judicial review
Since 21 July 2026, an appeal against the prosecutor’s refusal is examined by the district court within whose territorial jurisdiction the investigation is being conducted.
The court is required to examine the appeal promptly, no later than seven days after the appeal and the necessary case files have been transferred to it. The seven-day period therefore runs from the transfer of the matter to the court rather than from the date on which the appeal was filed. Dziennik Ustaw
As a general rule, the appeal itself must be filed within seven days of the announcement of the decision or, where the decision must be served, within seven days of service. API Sejm
The refusal is not immediately enforceable
The most important practical change concerns the enforceability of the prosecutor’s refusal.
The refusal becomes enforceable only when it becomes final. Until then, a procedural measure concerning the non-party, in which their representative has requested participation, may be conducted without the representative only in an urgent case. Dziennik Ustaw
The mere issue of a refusal therefore does not automatically permit the authorities to carry out every scheduled measure without the representative. The authority should either await the final outcome or demonstrate that the measure could not be postponed.
Administrative convenience or a previously scheduled appointment should not, in themselves, be regarded as sufficient to establish urgency.
How should the need for representation be justified?
The power of attorney should be accompanied by a submission explaining why the particular person’s interests require professional legal assistance.
The submission should identify the person’s status, the measure in which the representative intends to participate, the rights or interests affected, the potential procedural or financial consequences and the steps the representative intends to take.
Where the prosecutor communicates the refusal orally, a formal written decision with reasons and information on the right to appeal should be requested.
Who may benefit from the amendment?
The provisions may be relevant to a witness exposed to potential criminal or professional consequences, the owner of searched premises, a person whose telephone or documents have been seized, or a business whose confidential information may be disclosed during the investigation.
Admission is not automatic. The person must demonstrate a specific legal or factual interest requiring protection in the proceedings.
Significance of the amendment
The new provisions reduce the risk that a prosecutor’s decision will effectively deprive a person of legal assistance before the refusal is reviewed by an independent court.
The expedited review and delayed enforceability are significant safeguards. Their practical effectiveness will nevertheless depend on promptly notifying the authority of the representative’s participation, properly explaining the non-party’s interests and filing the appeal within the statutory time limit.
The new rules also apply to appeals filed but not determined before the amendment entered into force. Procedural measures validly conducted under the previous rules remain effective. Dziennik Ustaw
Law stated as at 28 July 2026.
This article is for general information only and does not constitute legal advice in an individual case.
Author: Radosz Pawlikowski, Attorney-at-Law
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