Organ właściwy do wydania europejskiego nakazu dochodzeniowego w postępowaniu przygotowawczym w fazie in rem w zakresie informacji objętych tajemnicą bankową. Uwagi na tle postanowienia Sądu Najwyższego z 2 czerwca 2022 r., I KZP 17/21, OSNKW 2022/7/26

Abstract

"This article is devoted to the decision of the Supreme Court of 2 June 2022, no. I KZP 17/21, which applies to the authority competent to issue a European Investigation Order in the pre-trial proceedings during the in rem phase with regard to information covered by banking secrecy. In the commented decision, the Supreme Court refused to adopt the resolution on the presented legal issue, submitted pursuant to Article 441 § 1 of the Act of 6 June 1997 – the Code of Criminal Procedure by the Court of Appeal in Kraków. It required an elementary interpretation of the Act to answer the question whether it is the public prosecutor or the regional court (Sąd Okręgowy) that is competent to issue the European Investigation Order under Article 589w § 1 and § 5 of the Code of Criminal Procedure in pre-trial proceedings concerning disclosure of information constituting a banking secret with regard to a bank established beyond the territory of the Republic of Poland’. Regardless of the foregoing, given the importance of the problem and the consequences of an incorrect interpretation of Article 589w § 1 of the Code of Criminal Procedure, which may occur in practice on the basis of the current prosecutorial practice and jurisprudence, the Supreme Court examined the above issue in the statement of reasons for its ruling in response to the Court of Appeal in Kraków, from which it follows that a prosecutor cannot issue an EIO pursuant to Article 589w § 1 of the Code of Criminal Procedure in order to obtain information constituting banking secrecy from another Member State under to Article 106b(1) of the Banking Law Act of 29 August 1997, unless the court gives its consent thereto. The article is devoted to the legal analysis of the above decision of the Supreme Court; and the consequential assessment of the issued ruling is critical."