POLAND Law and Practice Contributed by: Tomasz Konopka, Katarzyna Randzio-Sajkowska, Katarzyna Stradomska-Balcerzyk and Michał Zieliński, Sołtysiński Kawecki & Szlęzak
Moreover, it is assumed that conducting an internal investigation represents fulfilment of the obligation to take care of the interests of the enterprise under management. Failure to verify signs of irregularity may represent grounds for liability for damages and, in extreme cases, for criminal liability for mismanage - ment. Internal investigations are conducted not only when the provisions of law have been violated but also when, as a result of the law being violated, the enterprise has been harmed. In addition, specific entities (eg, banks, investment funds, entities managing alternative investment com - panies, insurance companies, reinsurance companies, as well as entities conducting brokerage activities and fiduciary banks) are obliged on the basis of special provisions to maintain tight compliance control or an internal audit system. These systems have a similar function to internal investigations and are, at times, subject to compulsory reporting. Failure to properly maintain the aforementioned systems may result in one or more of many administrative sanctions being imposed on the entity. In recent years, the number of internal investiga - tions regarding irregularities in the private sector has increased noticeably. In many instances, this is due to the operation in Poland of companies regulated by the strict rules of the US Foreign Corrupt Practices Act or the UK Bribery Act. Commonly, an internal investigation will encompass a review of business e-mail correspondence and elec - tronic files, meetings with employees, and the compa - ny’s financial and contractual documents. As regards confidentiality and secrecy, no specific regulations exist and, therefore, use of any information within an internal investigation must comply with generally applicable provisions (particularly the EU General Data Protection Regulation). Processing personal data (except sensitive data) is generally permitted within an internal investigation. However, it is recommended that the necessary consent be obtained from the per - son to whom the data relates. 2.6 Prosecution As already stated, crimes (including white-collar crimes) are initiated in two ways: ex officio or at the
request of the harmed party. Whenever the harmed party is the State Treasury, the proper mode is, in gen - eral, ex officio. Examples of types of crimes prosecut - ed ex officio are insurance fraud, money laundering, sham bankruptcy, etc. Examples of types of crimes prosecuted on request – unless the harmed party is the State Treasury – are fraudulent frustrating of a public tender, fraudulent non-satisfaction of creditor’s demands, causing loss due to culpable maintenance of unreliable documentation, etc. The request should be filed to the police, the public prosecutor’s office or other relevant enforcement authority. Generally, the same rules govern charging and filing the indictment in all kinds of matters, including white- collar crime cases. A justified suspicion of an offence is sufficient to institute the proceedings and collect evidence. The prosecution has discretionary power to decide if the examination of evidence provides grounds for charges/indictment. The indictment is then verified in two-instance court proceedings. 2.7 Deferred Prosecution There are no deferred prosecution agreements under Polish law. However, there are some mechanisms that allow mitigation of the penalty and a criminal investi - gation to be resolved without a trial. In cases referred to Article 335 of the Code of Criminal Procedure, the prosecutor may move for conviction of the accused without a trial. This requires the following conditions to be met: the confession of the accused; an explana - tion of all the circumstances of the case that does not contradict conclusions based on other evidence gath - ered; and the attitude of the accused indicating that the purpose of proceedings will be achieved without a trial. The court will verify whether the circumstances of the commission of the offence give rise to doubts and that the attitude of the accused indicates that the purposes of the proceedings will be obtained. Upon the public prosecutor’s motion, the court may apply extraordinary mitigation of the penalty, and may even conditionally suspend its enforcement. Such a situation may occur with regard to a perpetrator who has, apart from giving explanations in their own case, disclosed a crime subject to the penalty of deprivation of liberty for five years and presented its substantive
234 CHAMBERS.COM
Powered by FlippingBook