Poland has signed the following:
and is bound by the following European Union laws:
The key piece of legislation that establishes criminal liability is the Criminal Code of 1997, but certain specific acts contain additional criminal law provisions (eg, legislation on sports, pharmaceuticals, intellectual property). Legislation is the sole source of criminal liability.
Guidelines and the interpretation of law are established by case law; there are no official guidelines regarding the application of law.
Over the past few years, and in 2019 in particular, no major legislative amendments have come into force.
The offences in the area of bribery and corruption include giving and accepting a bribe, as well as engaging in and paying for influence-peddling.
A bribe is defined as any material or personal gain, “an advantage for the bribee or another person” (Article 115 (4) of the Criminal Code). Case law defines material gain as an undue material advantage obtained unjustly and without a legal basis. Personal gain is an advantage of non-material nature (such as a promotion at work or satisfaction of one’s sexual needs).
It is punishable both to offer and to accept the advantage. The rule applies to gains obtained by a person performing a public function in connection with his or her official capacity. Penalties are more severe when public officials infringe the law in exchange for an advantage or make official actions dependent on the provision or promise of an advantage. Whoever entices a public official to violate the law by offering or promising an advantage is also subject to more severe penalties.
A promise to provide an advantage is subject to penalty, even if the advantage is not subsequently provided. Likewise, an official commits an offence merely by accepting the promise of an advantage.
A bribe may take the form of objects, money or services, including the payment for travel expenses and hotel accommodation. Exceptionally, small items (but not money) of negligible value classified as customary gifts may be deemed acceptable (eg a thank-you gift for a doctor after a medical procedure).
An undertaking/company that fails to implement an anti-bribery policy does not commit an offence. However, a company may be fined if the business is organised in a way that does not prevent its employees from committing a crime (Article 5 of the Act on the liability of collective entities for punishable offences).
The concept of a person performing a public function (Article 115(19) of the Criminal Code) in the context of anti-bribery laws is very extensive – it is defined in the Criminal Code and specified in more detail in other acts of law. A person performing a public function is a public official, a member of a local government body, a person employed by an organisational unit managing public funds (unless they perform only minor service functions), as well as any other person whose rights and duties in the area of public activity are determined or recognised by an act of law or an international agreement to which Poland is a party.
The fact that the definition of a person performing a public function includes a reference to the management of public funds significantly extends the group of officials to whom the anti-bribery law applies. The term "public official" includes a number of officials specified in the Criminal Code, eg MPs, judges, prosecutors, government and local government administration employees, save for persons providing (minor) services, as well as soldiers and uniformed service officials. The definition of a public official is broad, but nevertheless narrower than the catalogue of persons performing a public function.
Some anti-bribery laws apply also to businesses, but are limited to the so-called management bribe. To be found culpable of bribery the manager must be proven to have abused the rights or failed to fulfil his or her management duties. The scope of rights and duties should either be defined by the law or the managerial contract between the manager and the company.
It is forbidden to claim influence on a state or local government institution, an international organisation or a unit (including foreign units) managing public funds. Likewise, a person cannot imply that they have such influence or reassure another person to this effect. Such conduct is deemed criminal if the perpetrator undertakes to act as an intermediary and is settling a case in exchange for a material/personal advantage or a promise of such an advantage. It is also an offence to give or promise a material/personal advantage in exchange for the agency to settle a matter with the institutions or organisations referred to above. The same also applies to foreign officials.
As a part of its efforts to fight corruption, the Polish legislator has classified influence-peddling as a separate offence. This offence involves the use of one’s influence in a state or local government institution, an international organisation or a unit managing public funds or, alternatively, exerting illegal influence on any such entity in exchange for an advantage or a promise of an advantage. This offence is prosecuted under Articles 230 and 230a of the Criminal Code, which provides that both the person accepting a personal or material advantage or the promise of such an advantage (so-called passive influence-peddling) or a person who provides or promises to provide such an advantage (so-called active influence-peddling) are subject to a penalty. Both offences can be committed by anyone, as it is not necessary for the perpetrator actually to have any influence on the unit or be willing to use it. This also means that a foreigner trying to “peddle in” their alleged influence in an international organisation or a foreign institution may be found liable under Articles 230 and 230a of the Criminal Code.
Influence-peddling is also prosecuted under the legislation on sports. Article 48 of the Sports Act prohibits anyone from claiming influence on a Polish sports association or another entity operating on the basis of a contract with that association.
Polish legislation mandates that businesses keep relevant accounting and tax books and records. A failure to meet this obligation is an offence. Likewise, it is an offence to keep those books in an unreliable and defective manner. Such rules can be found, for instance, in Article 77 of the Accounting Act or Article 60 of the Fiscal Criminal Code. If the offence is committed, the liability falls on the person tasked with bookkeeping at the company, and if no such person has been appointed – on the management board. It is possible to prosecute both the chief accountant and the company’s manager. Furthermore, a failure to prepare or the inclusion of unreliable data in the financial statements, the annual group report or other similar documents is also criminalised. It is also illegal not to have the financial statements audited by an independent auditor, provide the auditor with inaccurate information or fail to lodge the financial statements with the registry court. The latter is a widely prosecuted misdemeanour.
Any official who misappropriates public funds, whether duly or unduly claimed by the public authority, faces criminal liability. However, a request to pay undue sums or obtaining undue sums from a business or other persons may be classified as the abuse of public official’s power, as pursuant to Article 231(1) of the Criminal Code: “A public official who, by way of abuse of their rights or failure to meet their duties, acts against public or private interest” is subject to criminal liability.
An official who, motivated by a conflict of interest, makes decisions in conflict with public interest, is liable to be punished for the abuse of public official’s power (Article 231(1) of the Criminal Code).
Every person holding a public function who embezzles public funds entrusted to him or her faces criminal liability (Article 284 of the Criminal Code).
A person engaged in public procurement tenders is liable for an offence involving “collusion with another person to the detriment of the owner of property or a person or institution for whom the procurement procedure is being held” (Article 305 of the Criminal Code). This liability is not limited to bidders, but extends to persons representing the contracting authority as well. Pursuant to Article 6(1)(7) of the Competition and Consumer Protection Act, bidders or the bidder and the organiser of the tender procedure cannot enter into any agreements concerning the terms and conditions of the bids, including the scope of works or the price.
Criminal liability extends also to any intermediary engaged in the commission of corruption offences or the offences involving the abuse of a public official’s power, on condition that the third party was aware of their intermediary status. The involvement of an intermediary does not affect the liability of the public official.
Corruption-related offences are indictable ex officio. Relevant limitation periods depend on the type of the offence and the penalty stipulated for its commission. In most cases, the prescription periods are either ten or 15 years from the date of commission of the relevant offence. If an investigation is launched within this time framework, the period is extended by additional ten years.
Substantially, criminal liability applies to offences committed in Poland. Although the Criminal Code allows for prosecuting and putting on trial offenders who have committed crimes abroad, it is usually required that the relevant conduct be classified as an offence by the local law as well. This limitation does not apply to Polish public officials “who, while serving abroad, have committed an offence related to the performance of their function”.
Collective entities (legal persons) can be held liable for offences committed by an individual acting for them or on their behalf in performance or in breach of their duties. For a legal person to be punished, the individual needs to be unappealably convicted for one of the (many) offences specifically enumerated in the act of law, provided that their conduct could have created a financial or non-financial advantage for the legal person. Additionally, the liability applies only if the offence was committed as a result of failure to exercise due diligence when recruiting the individual (perpetrator) or failure to supervise them, or if the offence was committed as a result of the legal person being organised in a way which does not prevent the offence from being committed and if due diligence, if exercised, could have prevented such an offence.
So far, the practice regarding corporate liability has been scarce. In some cases, certain changes to corporate organisation may shield a business from financial liability.
Polish criminal law does not provide for any specific defences against the offences referred to above. This means that every culpable conduct which meets the criteria to be classified as one of such offences is prosecuted by the state. It is not necessary that the bribee actually accept the advantage, the person promising the advantage be capable of delivering the advantage, the person peddling influence actually have influence or the promised actions actually fall within the competence of the person accepting the advantage. No effect is required for these offences to take place – they are committed once the perpetrator performs the actions specified in the legislation. It is also irrelevant whether the perpetrator acted on their own or in collaboration with someone else. A mere attempt to commit the act is punishable, even if, given the circumstances, the perpetrator was actually unable to commit the offence (eg they gave a bribe to a person they mistakenly believed to be a public official).
Importantly, the liability is defined rather broadly. The concept of a “person performing a public function” includes not only politicians, officials or law enforcement officers, but also other persons performing public tasks on the basis of law or an international agreement. Likewise, the advantage that is to be provided can be both material or personal, and a mere promise to provide it is sufficient for a person to be liable. Additionally, the Polish Criminal Code does not require that the advantage must be obtained by the perpetrator. Even though the actual beneficiary is someone else, the offence would be committed anyway.
Importantly, all of the above offences may be only committed knowingly. Polish Criminal Code distinguishes between the two categories of perpetrator’s awareness of the illegality of their conduct: an offence can be committed knowingly if the offender anticipates the possibility of committing a crime and either intends to commit it or consents to the offence being committed, or the offence can result from negligence, when the perpetrator, who did not intend to commit a crime, nevertheless commits an offence as a result of failure to exercise due care required under the circumstances. If it can be proven that the perpetrator acted negligently, they can be exempted from criminal liability.
Polish law does not provide for any exceptions from the described offences.
When it comes to the offences in question, two de minimis exceptions apply. The first one is “negligible harmfulness of the offence”, meaning a situation when the conduct is negligible enough not to engage the law enforcement that could spend their time dealing with more serious matters. If this condition is met, the offence is deemed not to have been committed, even if the conduct described in relevant criminal-law provisions took place. As a result, the perpetrator is exempted from criminal liability. Factors considered when assessing the degree of social harm include the kind of value infringed, the circumstances regarding the commission of the act or the motivation of the perpetrator.
The second de minimis exception is the so-called minor relevance. Unlike “negligible social harmfulness”, this rule does not exempt the perpetrator from criminal liability, but it does impact the sentence. If an offence is classified as of minor relevance, the penalty imposed on the perpetrator may be much more lenient (in the cases in question – up to two years of imprisonment).
The offences are relevant to all sectors and industries. Save for the exceptions specified in 1 Offences, they can be committed by anyone.
Persons giving or promising to give a bribe can count on preferential treatment by the law enforcement, provided that they meet a certain condition. The perpetrators of offences referred to in Articles 229, 230, 250a(2) and Article 296a(2) of the Criminal Code, whose bribe was accepted by the bribee, and who have notified the police or the prosecution of this fact disclosing all the relevant circumstances of the offence before the enforcement authority became aware of the crime, may hope to have the case against them discontinued. In consequence, they may avoid criminal liability.
Meanwhile, offenders who have forged invoices may count on a more lenient penalty if they notify the police or the prosecution of the offence disclosing all the relevant circumstances, including the identity of their collaborators. Moreover, if the perpetrator returned the advantage they could have gained from the offence, the court may even abstain from imposing a punishment. As a result, the perpetrator will be convicted and the offence will show in their criminal record, but they will not be punished.
The perpetrators of such offences and the businesses they represent face harsh consequences. In the case of corruption-related offences, depending on the gravity of the offence and the value of the advantage handed in or promised, the perpetrator may even face a 12 year-prison sentence. When it comes to the offence involving the forgery of invoices, if the value of relevant payables exceeds PLN10 million, the perpetrator faces a prison sentence from five to 15 years or a prison sentence of 25 years. Furthermore, the perpetrator of each of the offences may be punished with a fine of up to PLN1,080,000 (in the case of the forgery of invoices – up to PLN6,000,000) and the advantage gained from the crime may be seized.
Legal persons who gained or could have gained any advantage from an offence perpetrated by their representative may be punished with a fine ranging from PLN1,000 to PLN5,000,000, yet not higher than 3% of the revenue of the legal person in the financial year in which the offence was committed. Irrespectively of the penalty, the advantage will be forfeited.
Polish legislation does not prescribe any fixed penalties for specific offences, leaving a lot of discretion to the courts. The length of the prison sentence can range from one month to 15 years, unless the law defines the minimum and maximum sentence; for instance, the typical penalty for bribery would vary from six months to eight years, while for managerial bribery – from three months to five years. Fines are imposed by Polish courts based on daily rates. The number of rates can range from 10 to 540, while a daily rate value can be fixed at any amount between PLN10 and PLN2,000. The third possible penalty imposed instead of a prison sentence or a fine is a community sentence, typically involving community work, ranging from one month to two years.
When selecting the penalty and establishing the sentence, the court must consider, among other things, the degree of culpability, social harmfulness, perpetrator’s motives and conduct, the type and the extent of effects of the crime, the way of life and personal circumstances of the perpetrator and his or her attitude following the commission of the crime.
Repeat offenders are not only likely to be punished more harshly (the upper sentence limit defined by the law is increased by a half), but may also face additional consequences, for instance more stringent parole conditions.
If a penalty is imposed on companies and other collective entities, the court analyses the extent of shortcomings in supervision of company operations, the value of the advantage obtained or the financial standing of the entity.
What is more, the fact that the perpetrator was convicted of a corruption-related offence or a collective entity was found liable for the offence does not preclude any civil or administrative liability.
There is no national legislation obliging companies and other collective entities to implement compliance programmes or fulfil other anti-corruption duties.
Polish legislation does not include any specific obligation to report any infringements of anti-corruption laws. However, pursuant to Article 304(1) of the Code of Criminal Procedure, whoever becomes aware of an indictable offence (including corruption) has a civic duty to notify the prosecution or the police of this fact. This wording means that to report a crime is a moral duty of every upstanding citizen. As this duty is moral in nature, its infringement (ie failure to report the suspected crime) is not punishable, save for certain specific situations defined in law.
Currently, save for the financial sector, there are no legal rules applying specifically to whistle-blowers in corruption matters. Pursuant to Article 9(2b) of the Banking Law Act, a bank must afford protection to its employees who report shortcomings, shielding them at least against any repressive or discriminating conduct or any other forms of unfair treatment. An analogous provision applies to investment firms (brokerage houses).
Polish legislation does not offer any incentives for whistle-blowers.
Currently, there are no consistent legal rules regarding whistle-blowers and their protection.
There are only certain isolated provisions applicable either to specific sectors or types of rules that could be infringed:
There are many institutions, bodies and services – criminal, civil and administrative – tasked with preventing corruption. In the area of law enforcement, the key bodies include: Central Anti-Corruption Bureau (CBA), the police and the Internal Security Agency (ABW). The remaining agencies which have certain anti-corruption duties are: Border Guard, Military Gendarmerie and the Military Counterintelligence Service, as well as the National Revenue Administration.
As already mentioned in response to 5.1Enforcement of Anti-bribery and Anti-corruption Laws, several bodies in Poland have been assigned anti-corruption tasks:
Most investigation measures belong to the competence of the public prosecutor's office, entitled to demand any kind of documents potentially useful as evidence in the conducted investigation.
The prosecutor’s office may also refer to the CBA, instructing it to undertake the required investigations. The CBA is equipped with tools to identify corruption among public officials and legal entities and to gather evidence in criminal cases. It does not, however, possess the power to prosecute defendants accused of corruption before courts, which is a role that is reserved for public prosecutors. The CBA has the right to carry out operations, eg, conduct observations, use bugging devices, and even entrapment (controlled giving of bribes).
The authorities can discontinue a criminal procedure if the person receiving the bribe has reported this fact to the police or the prosecution, disclosing all the relevant circumstances of the offence, before the authority has become aware that the offence has been committed.
What is more, offenders falsifying invoices can be treated with more leniency if they report their offence to the police or to the prosecution, disclosing all relevant circumstances of the case, including the identity of their collaborators. Moreover, if the perpetrator returned the advantage they could have gained from the offence, the court may even abstain from imposing a punishment. As a result, the perpetrator will be convicted and the offence will show in their criminal records, but they will not be punished.
The public prosecutor's office is under a duty of objectivity and has a status equal to that of the defendant in the main trial. However, being in charge of the preliminary investigation, it has numerous possibilities not open to the accused (for instance, conducting property searches and securing property).
One of the major corruption scandals of 2018 involved Leszek Czarnecki, a Polish entrepreneur and a majority shareholder in several banks operating in Poland (including Getin Noble Bank S.A.), who accused Marek Chrzanowski, former President of the Polish Financial Supervisory Authority (KNF), of promising leniency towards Getin Noble bank in exchange for approximately PLN40 million. The proposal made by the President of the Polish Financial Supervision Authority was recorded during a private conversation with Leszek Czarnecki, who reported the alleged crime to the prosecution. In the wake of the scandal, Marek Chrzanowski resigned from this position, was detained by the CBA and charged with abusing his powers to gain a material or personal advantage. He faces a prison sentence of up to ten years. The proceedings are underway.
One more recent case involved a CBA audit of a financial affidavit submitted by the former Vice-Minister and Minister of Finance and the head of the Supreme Audit Office, Marian Banaś. Allegedly, Marian Banaś obtained a property in Krakow from Henryk Stachowski, a veteran, for an abnormally low price. As of today, Marian Banaś continues to hold his office, despite the accusations.
The range of sanctions imposed on individuals for the above offences is laid down in the Criminal Code is discussed in response to 3.2Guidelines Applicable to the Assessment of Penalties. According to publicly available statistical data, the most common corruption-related offence in 2018 was bribery (871 persons convicted by final judgments); a fine stipulated by the Criminal Code in the amount of more than PLN5,000 was imposed in 14 of these cases.
On 19 December 2017, the Council of Ministers adopted the Government Anti-Corruption Programme for 2018-2020, which contains a diagnosis of corruption-related crime and the system of preventing and combating it. The document discusses the scale of corruption-related crime in Poland and the areas of social life which are the most likely to be affected by it (including the modernisation and extension of infrastructure, digitalisation of public administration, health care, the energy sector).
In 2018, the OECD published an appeal to Poland to make urgent legislative reforms to combat foreign bribery, especially with regard to the implementation of the key recommendations of the OECD Working Group on Bribery that remain unimplemented since 2013. According to the OECD, Poland still needs to take urgent steps to ensure companies can be held responsible for foreign bribery, even if the persons who perpetrated the offence are not convicted. In addition, Poland must increase the fines for companies in order to ensure that foreign bribery is punishable by effective, proportionate, and dissuasive sanctions.
The Polish Parliament is currently working on a new law on corporate criminal liability which will cover all companies, regardless of their size, the scope of their activities, share capital or assets.
The draft deals with two issues – it introduces new grounds for criminal liability of companies and adds certain compliance obligations. Under the proposed regulation, the criminal liability of a collective entity (such as a limited liability or joint-stock company) is no longer dependent on the prior conviction of any individual perpetrator of a criminal offence. The company faces its own independent liability for any offence directly related to its business activity, committed as a result of actions or omissions of its corporate body or deliberate actions or omissions of a member of its corporate body. Furthermore, companies will be held criminally liable for the offences committed, not only by members of their boards but also proxies, directors of branches, all persons employed (not only employees, also B2B) and in some cases for its subcontractors.