This content is from: Local Insights

Poland: How to lose a million in a week: part II

Tomasz KonopkaBorys D Sawicki
In the previous issue, this briefing described a story of Ms X, an accountant at Company A, who was requested to assist in an important secret project for her company. Her main task was to wire funds to an account of (an unknown to her) company in another country, according to the instructions of a top level manager of Company A received by e-mail. Before the secret project had been successfully completed, it turned out that it was a fraud scheme. Unfortunately, the monies were already gone.

Because similar situations happen in real life, we decided to offer a glimpse of action that – from the Polish legal perspective – could be taken should the same occur to one's company.

Immediately upon informing your banks about the wrongfully-made money transfers, notify the relevant law enforcement authorities about the fraud. Those authorities may not only prosecute the perpetrators locally, but are also in a position to request legal aid from their foreign (for example, Polish) counterparts. The legal aid may include a hearing of the defendant, witnesses or an expert if they are domiciled in Poland; and, insofar as pre-trial orders taken by a judicial authority in a EU member state are concerned, freezing of evidence and property located in Poland. The legal aid will be provided by the Polish authorities in accordance with the Polish Criminal Procedure Code, which in respect of freezing of evidence and property, implements the Council Framework Decision 2003/577/JHA of July 22 2003.

Next, if the funds have been transferred to Poland, file a criminal notification with the Polish law enforcement authorities. Depending on the circumstances of a specific case, in the notification, one may request a hearing of the persons possibly involved in the scheme residing in Poland, collection of specific evidence (such as bills and email correspondence), search of property and temporary freeze of assets (such as monies in the bank account to which funds were transferred). It is also possible for the entity affected by the fraud (even if domiciled outside Poland) to actively take part in the pre-trial proceedings as a harmed party.

It is also advisable to employ a private investigator at the same time. Information obtained by such an investigator may fuel the criminal proceedings carried out by law enforcement authorities, saving them precious time and effort. Since the social engineering (usually required for the discussed type of frauds) seems very difficult to pull off without an insider at the affected company, a private investigator may also be helpful in identifying potential insiders and links within the company to the scheme.

Finally, consider initiating a civil action against the Polish recipient of the funds on grounds of so-called unjust enrichment. Under Polish law, the concept applies to situations where one party (here: the Polish recipient) has received a payment or other consideration from the other party (here: the company subject to a fraud) without a valid legal title.

Obviously, the ultimate arsenal of weapons depends on the circumstances of each specific case and should be consulted on with qualified lawyers in the relevant jurisdictions.

Tomasz Konopka and Borys D Sawicki

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