This content is from: Local Insights

Corruption in the Polish legal system – part 1

Tomasz KonopkaBorys D Sawicki
Corruption has existed in every society. As historical evidence and much research shows, while it is difficult to eliminate it completely, no efforts should be spared to minimise its scale and effects. This is because corruption undercuts the macroeconomic, equity and institutional functions of a government, as well as its efficiency. The reputation of a corrupted country serves as a deterrent to foreign investment – there is much evidence that countries with a higher incidence of corruption also have lower investment and economic growth rates. Therefore, it is important for any country in need of foreign investment and fast development, such as Poland, to successfully eradicate corruption.

Over the last 10 years, the Polish Criminal Code has undergone a number of changes designed to improving the legal armoury for fighting of corruption. In part, the changes resulted from the efforts of the Polish government and parliament to make Poland into a clean-hands country; other changes were imposed by the European Union in connection with Poland's joining of the organisation in 2004.

As a result of these changes, the Polish Criminal Code provides now for a comprehensive criminalisation of corruption. Namely, it penalises corruption both at the public level – that affecting public officers and, for example, the election process – as well as the private one, affecting businesses, their managers and creditors. In addition, Polish law now allows the charging of legal persons (such as commercial companies) with liability for criminal offences. The liability of a legal person may, however, arise only once the fact of the committal of a criminal offence by a natural person acting on its behalf has been confirmed by a court sentence and provided that other circumstances set forth by the law have occurred.

As far as corruption at the public level is concerned, the key offence penalised by the Polish Criminal Code is bribery, in both its passive (accepting bribes) and active (offering bribes) forms. By accepting bribes, the Code defines the conduct of a person, who, in connection with his/her holding of a public position, (i) accepts financial or personal benefit or the promise of it; (ii) makes performance of an official act dependant upon receiving such a benefit; or (iii) demands the benefit. The active form of the offence consists in offering financial or personal benefit or promising the same to a person holding a public position. In order to break collusion between the culprits, the law allows the perpetrator of bribery to evade punishment, provided that once the bribe has been accepted by or offered to the person holding a public position, he or she: (i) informed the authorities responsible for prosecuting criminal offences about the incident; (ii) disclosed all the circumstances of the offence; and (iii) all that happened before the authorities learned about the crime from other sources.

The term 'person holding a public position' is defined by the law rather extensively and includes a public official (among others, the President of the Republic of Poland, a member of the Polish Parliament, a judge, a notary public, an officer of a public authority, and so on), a member of a local (municipal) authority, a person employed at an organisational unit involved in the spending of public funds as well as a person whose rights and obligations with regard to public activities are defined or recognised by Polish law or an international agreement binding the Republic of Poland. That definition has additionally been expanded by the Polish Supreme Court and legal commentators to cover, among others, persons performing public functions such as a board member of a single-shareholder company of the State Treasury, a director of a bank in which the majority of shares is held by a state legal person or even a physician (medical practitioner) working at a public health care institution.

In turn, the concept of a 'financial benefit' covers both an increase in the value of assets or a decrease in the value of the liabilities of the recipient. Within this meaning, a financial benefit will include donation of a sum of monies, but also redemption of a loan.

Tomasz Konopka and Borys D Sawicki

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