Discretion of the prosecuting subjects in the Polish criminal process

The article is an invitation to a broad discussion on the Due Process Model and the limits of the prosecuting subject’s discretion. The research attention is directed to the Polish experience of criminal proceedings legal regulation, in particular the prosecutor’s and investigator’s powers. It is emphasized that the purpose of studying foreign experience is not to perform mechanical copying of foreign models and approaches. It is important to develop critical thinking, to identify ways to optimize our legal regulation in this field. The study consists of three parts. The introductory part highlights the relevance of the topic, a brief analysis of scientific sources, and formulates the goal. The second part considers the issue of the content of the concept of «due process» and the discretion of the prosecution during the pre-trial investigation stage. Іn accordance with the provisions of the Polish procedural code, considered: (1) the decisions making process about initiating an investigation; (2) the features of «verifying proceedings»; (3) the possibility of conducting procedural actions before the investigation official start through the relevant resolution; (4) the features of conducting a search as an investigative action; (5) the features of determining the admissibility of evidence; (6) the institution of signals of violation. It is emphasized that the Polish Themis and Polish society understand the importance of the prosecutor’s discretion and agree to such legal regulation within the framework of the «social contract». At the same time, attention is drawn to the criticism of Polish scientists regarding certain aspects of the proceedings, especially in the area of prosecutor’s power. The conclusions set out a generalization of the research results. It is stated that the Polish procedural code has a lot of «air between the lines». There is no need to legalize everything. There is a delegation of broad freedom to make procedural decisions and conduct procedural actions by prosecutors and investigators. This policy proves that less strict regulation and more discretion for the prosecuting subjects does not contradict the essence of the rule of law principle and the practice of the ECHR.