Ranked 35 out of 175 countries in Transparency International’s Corruption Perceptions Index for 2014, Poland is neither the most nor the least corrupt country in the region. Although a dedicated agency was founded specifically for the purposes of fighting corruption, it is sometimes ineffective due to procedural infringements during investigations.
The most common form of corruption is bribery, which is defined by the Polish Criminal Code as a personal or financial gain (e.g. money) that is promised to or accepted by an official in relation to this person’s official duties. However, as history shows, simply defining the elements of a crime in a penal code does not get rid of it. To fight corruption, governments must ensure that it is investigated and prosecuted in a diligent and thorough manner. To this end the Polish government founded the Central Anti-Corruption Bureau (CBA), a government agency responsible for dealing with bribery schemes.
The founding of a special agency to fight corruption should generally be considered a good idea if standard authorities such as the police are insufficient. However, the founding of the CBA in Poland has led to concerns as to whether this agency would serve its role as an impartial agency responsible for fighting corruption, or whether it would be used as an instrument for witch-hunting.
Beata Sawicka’s case broke out in 2007. Sawicka, a member of the parliamentary opposition, was placed under secret surveillance by the CBA, which resulted in a conviction for arranging a bribery type of deal between a randomly-met businessman (who turned out to be an undercover CBA agent) and the mayor of a municipality who was a friend of hers. This case, announced as the CBA’s first great success, soon turned into the Bureau’s most spectacular failure. Sawicka was acquitted, and the Supreme Court found that the CBA had no reason to suspect her of being involved in bribery before putting her under surveillance, therefore the investigation violated Article 6 of the European Convention on Human Rights (the right to a fair trial). As the investigation of Sawicka by the CBA was unlawful, no evidence from that investigation could be allowed in a court of law (as “fruit of the poisonous tree”). It is also worth noting that in relation to a different investigation, the former head of the CBA lost his job in relation to allegations that he abused his authority in the course of this investigation.
Nonetheless, the CBA should not be underestimated. The recent activity of the CBA has greatly increased awareness about corruption by public authorities, regarding not only simple bribery but also major bid-rigging schemes. A major CBA investigation is aimed at alleged illegal schemes involving the implementation of IT solutions in public administration. The CBA alleges that the biggest public IT projects were secured for certain companies at far more than regular market prices. Other sectors are under scrutiny of the authorities, in particular construction (in relation to bid rigging) and the pharmaceutical sector (in relation to payments made to healthcare professionals). The media’s interest in the investigations, provoked by the CBA itself, has encouraged companies to revise their compliance policies.
The CBA’s current strategy may also result in the broader use of the so-called “collective liability” of companies. Pawel Wojtunik, the head of the CBA, in one of his many TV appearances, has encouraged public prosecutors to pursue companies for the wrongdoings of their employees or agents under the Act on the Liability of Collective Entities for Acts Prohibited Under Pain of Punishment of 2002. In Poland, a company may bear liability for certain offenses, including bribery, committed by its representatives, employees, or even informal associates, if it has benefited from the crime. If found liable, it may face serious financial consequences, as penalties ranging from approximately EUR 250 to EUR 1,250,000 can be imposed on top of forfeiture of the fruits of the crime. However, the most severe sanction may be debarment from participating in public procurement for up to 5 years. As a consequence of the CBA’s activity, the Act of 2002, which so far has been applied very rarely, may serve as another weapon to fight organized corruption.
The message from the CBA is clear: the bitter consequences of bribery should be borne not only by the individuals involved, but also by the companies that stand behind and benefit from the crimes. If the CBA is able to apply this principle effectively, it will be a great step forward in the war against corruption.
By Arkadiusz Korzeniewski, Partner, Maciej Kopczynski, Senior Associate, CMS
This Article was originally published in Issue 2.2. of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.