The Money That Became Evidence

Imagine that your bank account has been frozen by a prosecutor investigating money laundering. Six months pass. No charges have been filed. You’re not even a suspect—the investigation is in rem, against the money itself, not in personam, against you. Under Article 86, Section 13, of Poland’s anti-money-laundering statute, there’s supposed to be a limit to this sort of thing. The law reads: “A transaction freeze or account block expires if, before the time period ends, no decision on asset forfeiture has been issued, nor any decision regarding material evidence.” A prosecutor can extend the freeze for another six months, but after twelve months—a full year—the block should lift. You should get your money back.

Prosecutors Began Using a Workaround

The trouble is that asset forfeiture requires filing charges—transforming the case from an investigation in rem into one in personam. And the prosecutor doesn’t have enough evidence yet to charge you with anything.

So what does he do?

Just before the twelve-month deadline expires, he issues a ruling declaring that the money in your bank account constitutes “material evidence” in the case. He transfers it to the prosecutor’s office depository account.

And suddenly, instead of twelve months, your funds can be frozen for years—until the case concludes, which might never happen. No charges. No suspect status. No right to mount a defense.

The objective is transparent: this isn’t about preserving “evidence”—it’s about preventing the loss of assets, because if the freeze expired, the funds would have to be released back to you.

It’s an end run around the asset-forfeiture rules. And for years, it was illegal.

This Isn’t an Isolated Case

This is routine practice in prosecutors’ offices across Poland, applied in thousands of cases every year—not just money-laundering cases (under Article 299 of the Criminal Code) but also fraud cases, embezzlement schemes, and tax crimes.

The pattern looks like this:

Stage 1 (24 hours): A bank reports a suspicious transaction → the General Inspector of Financial Information (GIIF) freezes the account.
Stage 2 (96 hours): GIIF submits a request to maintain the transaction freeze or account block.
Stage 3 (6 months): The prosecutor issues a freeze order under Article 86, Section 9.
Stage 4 (another 6 months): The prosecutor extends the freeze under Article 86, Section 11a.
Stage 5 (YEARS): Just before the twelve-month limit expires, the prosecutor issues a ruling on “securing material evidence”—and the funds remain frozen until the case is concluded.

On its face, everything appears lawful. The problem is that funds in a bank account aren’t “things.”

What Material Evidence Actually Is

Material evidence is a physical object that you can:

• See with your eyes—a knife used in a robbery, a gun, a document.
• Touch and examine—biological traces, narcotics, counterfeit currency.
• Present in a courtroom—a stolen object, a forged document.
• Analyze through the senses—smell, color, texture, dimensions.

A digital entry in a bank’s computer system isn’t a thing. It’s information stored electronically. You can’t touch it, view it physically, or examine it through your senses.

You can print out a bank statement—but that documents the entry’s existence; it doesn’t make the entry itself a “thing.”

The Code of Criminal Procedure doesn’t define “material evidence,” but in legal doctrine and case law, it’s understood to mean physical objects that exist in the material world.

The Supreme Court Rulings (2021): “These Are Not Material Evidence”

For years, courts uncritically accepted this prosecutorial practice. No one questioned the legality of treating funds as material evidence.

Until October, 2021.

In a resolution dated October 13, 2021 (Case No. I KZP 1/21), the Supreme Court wrote:

It must be emphasized once again, as the foundation of our reasoning, that the method of presenting evidence from a source known as material evidence is through its inspection. “A thing becomes a source of evidence when its external appearance or properties allow the court to draw conclusions about evidentiary facts (for instance, scorched insulation on an electrical wire indicates that the wire was subjected to high temperature).” Unlike the legal definition mentioned above, material evidence in criminal procedure always has individual characteristics, because each carries specific information important to the course of the trial—it is, after all, a source of evidence. The essence of presenting evidence in a judicial proceeding is drawing inferences based on that specific piece of evidence, which leads to establishing facts. We must therefore conclude that funds held in a bank account do not possess these characteristics, because they do not exist as things—as objects. They are merely entries in a computer system. A computer entry that corresponds to no specific object—no banknote that could be subjected to inspection. Thus, these funds have no evidentiary characteristics in the procedural sense. What would constitute material evidence confirming that specific amounts were deposited into a bank account would be, in this arrangement, bank statements, deposit confirmations, withdrawal slips, and other similar documents—not the banknotes that the bank might pay out as coming from that account, or transfer, for example, to a depository account.

In a second resolution, dated November 9, 2021 (I KZP 3/21), the Court added:

Fighting crime without respecting procedural guarantees can lead to directing repression against an innocent person. Allowing what amounts to an indefinite freeze of funds will in no way motivate law-enforcement agencies to work efficiently.

The Supreme Court had spoken clearly: funds in an account are not material evidence. Prosecutors cannot circumvent asset-forfeiture rules by declaring money to be “evidence.”

The Problem the Rulings Revealed

Before 2021, prosecutors routinely froze bank accounts in money-laundering cases by issuing rulings on securing material evidence, declaring that the “evidence” consisted of the funds held in the account.

This allowed them to freeze accounts for many months, even years—without filing charges, without asset forfeiture, simply by asserting that “the money is evidence in the case.”

The Supreme Court said: Stop.

Funds in an account aren’t a “thing” under the law. They’re a digital entry. You can’t “view” them, “examine” them, or “present them in a courtroom.” They’re not material evidence.

The consequence was clear: prosecutors would have to either file charges and pursue asset forfeiture, or release the frozen funds after the maximum freeze period expired (at that time, seventy-two hours plus six months).

The Legislative Response—the Amendment of January 12, 2022

Rather than accept the Supreme Court’s rulings and adjust their practices to conform with constitutional guarantees, the legislature decided to solve the problem legislatively.

On December 17, 2021—a mere two months after the Supreme Court rulings—Parliament passed a law amending various statutes in connection with the establishment of the Central Bureau for Combating Cybercrime.

As part of that law, Article 236b was added to the Code of Criminal Procedure. It took effect on January 12, 2022:

Article 236b, Section 1. A thing or object within the meaning of this chapter’s provisions also includes funds in an account.

Section 2. A ruling on material evidence may pertain to funds in an account if they have been seized as evidence in a case.

Straightforward and literal: the legislature decided that since the Supreme Court had ruled that funds in an account aren’t things—well, now, by statute, they are.

Why This Is Controversial

1. Circumventing Supreme Court Jurisprudence

The Supreme Court didn’t say “funds in an account aren’t things” because of a gap in the law. It said so because the literal understanding of the terms “thing” and “material evidence” has fundamental significance for procedural guarantees.

Material evidence is something you can:

• Physically examine.
• Present at trial.
• Subject to inspection.
• Identify as a specific object.

A digital entry in a bank account isn’t any of these things. You can print it out, you can describe it, but that doesn’t make it a “thing.”

2. Undermining the Protective Function of Article 86, Section 13, of the A.M.L. Law

Article 86, Section 13, of the anti-money-laundering statute provides:

A transaction freeze or account block expires if, before the time period ends, no decision on asset forfeiture has been issued, nor any decision regarding material evidence.

This is a protective provision—it guards against indefinite freezing of accounts belonging to people who haven’t been charged with anything.

The Supreme Court emphasized that this provision is meant to be a maximum limit—to compel law enforcement to work efficiently. If, within six months (now twelve months), the prosecutor hasn’t gathered sufficient evidence to file charges, he can no longer keep the funds frozen.

The 2022 amendment weakened this mechanism. Now a prosecutor can:

• Freeze an account under Article 86, Section 5 (for up to ninety-six hours).
• Extend the freeze under Article 86, Section 9 (for up to six months).
• Extend it again under Article 86, Section 11a (for another six months).
• Issue a ruling on material evidence under Article 236b of the Criminal Procedure Code.
• Keep the funds frozen for years—until the case is concluded.

3. Absence of Public Debate

The change was introduced as part of a law concerning the creation of the Central Bureau for Combating Cybercrime. It was added during the Sejm committee stage—there was no public debate, no public consultation, no published justification.

What This Means for People Whose Accounts Are Frozen

Before the amendment (through January 11, 2022):

• A prosecutor could freeze an account for a maximum of six months (now twelve).
• After that period, he had to either file charges and pursue asset forfeiture, or release the funds.
• Funds in an account could not be deemed material evidence.

After the amendment (from January 12, 2022):

• A prosecutor can freeze an account for up to twelve months under Article 86 of the A.M.L. law.
• He can then issue a ruling on material evidence under Article 236b of the Criminal Procedure Code.
• The funds can be frozen until the case is concluded—even if it takes years.
• There’s no longer a guarantee that, absent charges, the account will be unfrozen.

The Supreme Court’s Position After the Amendment

In a ruling dated May 18, 2022 (I KZP 7/21), the Supreme Court addressed the new law:

Undoubtedly, the aforementioned regulation departs from the established understanding of the term “material evidence”; it’s difficult to deny, however, that it contains a legal definition that cannot be ignored, constituting, in criminal procedural law, the equivalent of the definition in Article 115, Section 9, of the Criminal Code.

In other words, the Court acknowledged that while the change is controversial and weakens procedural protections, it is binding law and must be applied.

But it added an important caveat: courts reviewing freeze orders should scrutinize prosecutors’ decisions with particular care—both formally and substantively.

What We Can Do as Kancelaria Skarbiec

Despite the amendment, you’re not defenseless.

1. Challenging the Material-Evidence Ruling

A prosecutor’s ruling securing funds as material evidence can be appealed, through a motion for reconsideration, to the district court.

In the appeal, we can argue:

• The funds have no connection to the alleged crime.
• The measure is disproportionate (for instance, freezing an entire account when only ten per cent of the funds are suspect).
• Violation of the right to defense and constitutional guarantees.
• The prosecutor’s lack of due diligence in assessing the funds’ connection to the crime.

2. Pursuing Compensation

If the case is dismissed or you’re acquitted, you have the right to compensation for an unlawful account freeze.

The 2022 amendment weakened procedural protections, but it didn’t eliminate them entirely.

If your account has been frozen under a material-evidence ruling, contact Kancelaria Skarbiec. We specialize in challenging such decisions and are familiar with the latest court rulings.

Don’t let your funds be frozen for years without charges being filed.

Robert Nogacki

Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.