Being summoned for questioning as a witness may appear to be a relatively safe situation – after all, a witness is not a suspect and no charges have been brought against them. In economic criminal cases, however, the situation may be considerably more complicated.
Let us imagine a typical situation. Ms Anna, who previously held a managerial position at a company, is summoned for questioning as a witness in an economic criminal case concerning her former employer. She is not a suspect and no charges have been brought against her – formally, she is merely a person who “saw something, signed something, knew something”. The problem is that the course of the investigation clearly indicates that the line of potential liability may shift towards her at any moment. All it takes is one unfortunate statement or one imprecise answer to a prosecutor’s question, and her status may change from that of a witness to that of a suspect – without warning and during the very same questioning.
The Code of Criminal Procedure has long provided a specific safeguard for such circumstances: a person who is not formally a party to the proceedings may appoint an authorized representative if their interests in the proceedings so require. This applies, among others, to witnesses. However, the same provision immediately gives the prosecutor the power to refuse to allow such counsel to participate in the proceedings if the prosecutor considers that the protection of that person’s interests does not in fact require it.
And this is where the problem begins – one that practising lawyers know all too well. It is the prosecutor – the party conducting the proceedings, interested in their efficient and “own” course – who independently assesses whether the witness “really” needs a lawyer. Moreover, the refusal was immediately effective – including where the witness challenged it. The appeal could remain in the case files, while the court might consider it a week later, a month later, or sometimes even closer to the end of the investigation. At the same time, questioning during which the witness could unknowingly “testify against themselves” would take place without any legal assistance. In other words: before anyone had a chance to review the prosecutor’s decision, that decision had already been fully implemented. Any resulting harm – if it occurred – was irreversible.
What changed after 20 July 2026?
The legislature recognised this problem and, through the Act of 11 June 2026 amending the Code of Criminal Procedure and the Fiscal Penal Code, introduced two significant changes.
Firstly, a complaint may now be lodged against a prosecutor’s decision refusing to allow an authorized representative to participate, and it must be examined by the district court having jurisdiction over the place where the proceedings are being conducted. And this does not happen “at some point in the future”, but without undue delay, no later than within 7 days of the complaint, together with the case files, being referred to the court. No more complaints waiting for months to be examined while the proceedings continue in the meantime without the participation of an authorized representative.
Secondly – and this is the change that effectively reverses the previous logic of the provision – the prosecutor’s decision refusing to allow an authorized representative to participate becomes enforceable only once it becomes final. Until then, procedural acts involving the person in which their authorized representative has notified their intention to participate may be conducted without counsel only exceptionally, in cases where there is an urgent need to act.
This is a fundamental shift in the centre of gravity. Previously, the rule was: the prosecutor decides, the decision takes effect immediately, and the witness/ authorized representative can only complain about it post factum. Now the rule is: until the court confirms that the refusal was justified, an authorized representative has the right to be present during procedural acts, except in situations where there is a genuine and urgent need to act. In other words, the burden of demonstrating the “urgency” shifts to the authority conducting the proceedings, rather than remaining with the person seeking professional legal assistance.
A corresponding reference has also been added to the Fiscal Penal Code (Article 122 § 1 point 1 of the Fiscal Penal Code), meaning that the same safeguard also applies to fiscal criminal proceedings.
The Act provides for transitional provisions typical in such cases: complaints already lodged but not yet examined on the date the amendment entered into force are subject to the new, more favourable rules, while procedural acts performed previously remain effective. The Act itself entered into force on 20 July 2026.
Why is this important?
In economic cases, the boundary between a person possessing knowledge of particular events and a person whose own actions begin to attract the attention of law enforcement authorities is not always obvious.
For this reason, a summons issued to a management board member, director, manager or other key employee to appear for questioning as a witness should not be treated merely as a formality. Even before the questioning takes place, it is worth analysing what the proceedings concern, what role the person concerned played in the events under investigation, and whether their interests require professional legal assistance.
For practitioners, this means one thing: if, in the course of an investigation, we represent a client acting as a witness whose procedural position is uncertain, it is worth considering the appointment of an authorized representative from the outset and, if the prosecutor refuses to allow counsel to participate, making use of the complaint procedure with the awareness that, this time, it has real significance and is not merely a formality to be considered after the fact. This is a seemingly small, technical amendment to a single provision, but in practice it touches upon the very essence of the right of defence at the earliest and often most sensitive stage of criminal proceedings.
FAQ
Can a witness have a lawyer present during questioning by a prosecutor?
Yes. A witness may appoint a lawyer if this is necessary to protect their interests in the proceedings. As of 20 July 2026, a prosecutor’s refusal to allow a lawyer to participate is subject to judicial review, and the appeal should be examined without undue delay, no later than within 7 days of being referred to the court together with the case files.
Can a witness become a suspect during criminal proceedings?
Yes. In particular, in white-collar criminal cases, the line between a person who has knowledge of the events and a person whose own actions are of interest to the prosecuting authorities may be fluid. Therefore, before summoning a management board member, director or manager as a witness, it is advisable to assess their role in the events covered by the proceedings.
Can a prosecutor question a witness without their lawyer present?
Following the changes effective from 20 July 2026, a prosecutor’s decision refusing to allow a lawyer to participate becomes enforceable only once it has become final. Until then, proceedings involving a witness who has requested the presence of their lawyer may take place without the lawyer only in exceptional circumstances – where there is an urgent need to take the action without delay.
