- Business in Poland -
The right to remain silent – when silence is the best line of defense
The right to remain silent is a procedural right that allows a suspect or defendant to avoid self-incrimination by choosing not to give explanations. In Polish criminal proceedings, this principle follows primarily from Article 175(1) of the Polish Code of Criminal Procedure, under which the accused has the right to give explanations, but may also refuse to do so without giving reasons [1]. In practice, this means that a defendant's silence cannot be treated as an admission of guilt.
This distinction is particularly important in business crime cases, proceedings involving managerial misconduct, the liability of management board members, or allegations of acting to the detriment of a company. In such matters, statements made too quickly often complicate the defense more than the evidence gathered by law enforcement authorities themselves.
The right to remain silent and the right to refuse testimony - not the same thing
In public discourse, these terms are sometimes used interchangeably, but from a procedural perspective the difference is significant. The right to remain silent applies primarily to a suspect or defendant and means the option not to give explanations. By contrast, the right to refuse testimony applies to a witness and arises from different provisions, in particular Articles 182 and 183 of the Polish Code of Criminal Procedure [1].
The simplest way to put it is:
- a suspect or defendant may refuse to give explanations,
- a witness may, in specific cases, refuse to testify or refuse to answer a particular question,
- the scope of these rights depends on procedural status, not on the nature of the case itself.
In practice, misidentifying your procedural role can be costly. A person convinced they are appearing only as a witness may in fact provide law enforcement authorities with information later used against them. That is why, at the first contact with criminal proceedings, it is worth verifying your status, the scope of the caution given, and the risks arising from the questions being asked. These issues are also discussed in more detail in our article on the right to remain silent in practice.
When refusing to give explanations is a rational decision
Refusing to give explanations is neither unusual nor a sign of bad faith. In many cases, it is simply a cautious decision. This applies in particular where:
- the person being questioned does not yet know the full body of evidence,
- the allegations have been framed in broad or imprecise terms,
- the case involves complex financial documents, correspondence, and decision-making processes,
- disciplinary, employment, or civil proceedings are taking place in parallel,
- a statement could expose other people within the organization to liability as well.
In a business context, one of the most common mistakes is assuming that quickly "explaining everything" will bring the matter to an end. In reality, any inconsistency, shorthand, or incomplete recollection of the sequence of events may later be read as a contradiction. In white-collar cases, inconsistency in the narrative is often one of the defense's main problems.
A defendant's silence does not automatically work against them
Polish criminal procedure does not allow a defendant's silence to be treated, in itself, as proof of guilt. The burden of proof rests with the prosecutor, and the court assesses the entirety of the evidence in accordance with the principle of free evaluation of evidence and with due regard to the presumption of innocence [1][2].
That does not mean, however, that silence will always be the best option. In some factual scenarios, actively giving explanations at the right moment may help organize the chronology of events, indicate a lack of intent, or show that due diligence was exercised. What matters most is the procedural timing, access to the case file, and preparation of the defense strategy.
Three exceptions you need to distinguish
When deciding whether to rely on a procedural right, it is essential to distinguish between three situations:
- The right to remain silent - available to a suspect or defendant and covering the possibility of a complete refusal to give explanations without stating any reasons.
- The right to refuse testimony - available to certain witnesses, in particular persons closest to the accused, under the rules set out in Article 182 of the Polish Code of Criminal Procedure [1].
- The right to refuse to answer a question - a witness may decline to answer if doing so could expose the witness or a person close to them to liability for an offense or a fiscal offense, in accordance with Article 183(1) of the Polish Code of Criminal Procedure [1].
These three rights have different legal bases and different procedural consequences. Confusing them may lead to the irreversible disclosure of information that cannot later be "taken back."
The importance of the right to remain silent in business crime cases and internal investigations
Within companies, the issue does not end with questioning by the prosecutor's office. It is often preceded by an internal audit, compliance measures, an HR procedure, or a review of correspondence and management decisions. In that environment, consistency is essential between the procedural interests of the individual concerned and the interests of the organization.
In cases involving fraud, corruption, AML, or executive liability, it is often necessary to secure documents in parallel, establish the flow of information, and assess personal and corporate risks. In such situations, support in the area of criminal law should be coordinated with compliance and crisis management measures.
When to speak despite the right to remain silent
The decision to give explanations may be justified where the evidence is already known, the strategy has been prepared, and the explanations serve a specific procedural purpose. For example:
- where it is necessary to explain the technical or organizational context of a business decision,
- where the documents do not reflect the full course of the decision-making process,
- where it is possible to demonstrate quickly a lack of intent or lack of knowledge of the misconduct,
- where an active approach may support the defense's evidentiary motions.
There is therefore no single answer that fits every case. Some factual situations call for silence to protect against hasty self-incrimination. Others require well-prepared explanations to bring order to the evidence and reduce the scope for overinterpretation.
Practical importance for management boards, HR, and compliance departments
For organizations, the key issue is to determine quickly whether a matter is purely internal or may already lead to criminal liability for specific individuals. This applies in particular to whistleblower reports, corruption incidents, breaches of employee duties, and irregularities in the financial area.
In such cases, the following are all needed at the same time: proper cautions, protection of the integrity of the evidence, appropriate internal communication, and an assessment of when relying on procedural rights is justified. More information about the areas of support available to companies and private individuals can be found on the KKZ website.
This material is for informational purposes only and does not constitute legal advice. If a factual situation requires procedural assessment, an individual analysis of the documents, procedural status, and evidentiary risks is advisable. Details of available support can be found at https://www.kkz.com.pl/.
FAQ - The right to remain silent
Does the right to remain silent mean that you do not have to answer any questions?
Not always. A suspect or defendant may refuse to give explanations. A witness has a different scope of rights and, as a rule, should testify unless there is a legal basis to refuse testimony or to refuse to answer a specific question [1].
Can a defendant's silence be treated as an admission of guilt?
No. Silence alone is not evidence of guilt. The prosecuting authority must prove guilt on the basis of the entire body of evidence, while respecting the presumption of innocence [1][2].
Who has the right to refuse testimony?
Above all, a person close to the accused, in accordance with Article 182 of the Polish Code of Criminal Procedure. The scope of this right follows from the statutory provisions and depends on the relationship with the accused and on procedural status [1].
Can a witness refuse to answer just one question?
Yes. If answering could expose the witness or a person close to them to liability for an offense or a fiscal offense, the witness may rely on the right provided for in Article 183(1) of the Polish Code of Criminal Procedure [1].
Is refusing to give explanations viewed negatively by the court?
It should not be viewed negatively in itself. It is a statutory procedural right. What matters, however, is the overall context of the case and the remaining evidence.
When is the best time to decide whether to give explanations?
Ideally after establishing your procedural status, reviewing the allegations, and, where possible, analyzing the evidence. In business crime cases, rushing usually increases the risk of error.
Bibliography
[1] Act of 6 June 1997 - Polish Code of Criminal Procedure, Journal of Laws 2024, item 37, as amended.
[2] Constitution of the Republic of Poland of 2 April 1997, Journal of Laws No. 78, item 483, as amended.
[3] Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, Journal of Laws 1993 No. 61, item 284, as amended.
Author: adw. Maciej Zaborowski, Managing Partner
E-mail: m.zaborowski@kkz.com.pl
