Legal and practical issues
Several months ago, the former head of computerisation in the Ministry of Internal Affairs and Administration, who was responsible up to mid-2010 for most projects concerning the computerisation of state administration, was arrested.
Initially, the arrest solely concerned a bribe of €50,000 from a supplier. However, after some time, the case began to take on a wider dimension. The court issued a warrant for the temporary arrest of the marketing directors of Polish branches of a number of foreign companies operating on the IT market. They were accused of giving bribes in the order of millions of zlotys. If the charges prove justified, then considering the level of those managers' remuneration and the amount of the bribes, the question may arise as to whether the decisions to proffer such sums were taken by those managers independently.
It is evident from statements by representatives of the prosecutor's office to the media that the case is evolving rapidly, and that the corruption may have extended more widely in the public IT sector since the mid-1990s.
It is known (unofficially) that teams have arrived in Warsaw to conduct internal inspections of companies whose employees have been charged, as have law enforcement bodies from those states in which those companies have their registered offices. As part of the investigations, employees of the firms have been questioned, including through the use of lie detectors. Whether the use of lie detectors took place with the consent of those questioned is unknown. In Poland, an interviewee must grant his or her consent to such a test. Furthermore, the results of questioning using lie detectors can be treated only as tertiary evidence.
Officially, no answers have yet been given as to the results of the interviews or whether they confirm the existence of corrupt practices and, if so, within what period. However, a number of legal and practical questions have arisen as a result of the investigation.
How is evidence obtained during an investigation by foreign law enforcement authorities treated under Polish criminal procedure? It seems that, from a Polish legal perspective, some evidence may have been obtained illegally, or by persons not authorised to take such actions. However, the Criminal Code contains no categorical prohibition against using evidence obtained illegally in criminal proceedings - there is no ban on using 'fruit from a poisoned tree'. Citing the absence of such a provision, prosecutors have on numerous occasions included evidence obtained illegally, most often by illegal wiretapping, among their material evidence. However, it seems that this practice is to be curtailed. In several rulings the Supreme Court has held unequivocally that evidence must be gathered in compliance with the law, and has inferred the prohibition from primary legislation, such as constitutional norms. Therefore, if investigators are provided with the results of the work of teams conducting internal inspections of the parent companies of the businesses involved, or evidence obtained from law enforcement authorites in the states where the parent companies of Polish businesses have their registered offices, such evidence may not be admitted as material.
Provision of evidence to authorities
Are the teams conducting internal investigations of the parent companies involved, and the law enforcement authorities of the states in which those parent companies have their registered offices, obliged to provide the evidence that they gather to the Polish authorities? From a legal perspective, corruption is a crime against the rule of law, especially where it concerns government administration. The rulings of the courts seem to be of one mind against persons who agree to or accept bribes, even if those persons were never in Poland - on condition that the determinations were made by the Polish law enforcement authorities. It is not known how much evidence and information obtained during the investigations carried out in Poland has been provided to the Polish authorities - unofficial sources suggest that at this stage there has not been much. It is hoped that provisions will be introduced into Polish law that would prohibit the provision of evidence to Polish law enforcement authorities in such cases if that evidence could be used in any way in proceedings in other countries.
Legality of actions
What is the legal status of the actions of the teams inspecting the parent companies involved and the law enforcement authorities of the states in which those parent companies have their registered offices? Does questioning people and gathering evidence outside Polish territory constitute an infringement of Polish law? Does it hinder Polish investigators' search for the truth? In this case, a conflict may exist between the best interests of the Polish investigation and those of proceedings under foreign anti-corruption provisions. Given that Poland is decisively fighting against corruption, the view that Polish provisions should have priority is justified. Foreign anti-corruption procedures may apply on Polish territory only subordinately, and with respect for domestic law, whereas evidence and information obtained using such procedures should be included in Polish criminal proceedings. Corruption among Polish state officials is a crime.
An attempt should be made to develop procedural methods in such situations, as the number of proceedings conducted in Poland on the basis of foreign anti-corruption provisions (eg, the Foreign Corrupt Practices Act and similar regulations) seems certain to grow. The interests of the country in whose territory the corruption took place must be weighed against those of multinational corporations.
For further information on this topic please contact Jarosław Kruk at Kruk & Partners by telephone (+48 22 825 5650), fax (+48 22 825 0980) or email ([email protected]).