A new Corporate Liability Act which is currently before the Polish Sejm will put criminal law institutions in a new perspective. Certain instruments that were seen as appropriate only with respect to individuals will have to be redirected to be deployed in the case of corporate entities. Once the new laws take effect, corporate entities will be the focus of attention of law enforcement agencies. The new approach will affect among other things police entrapment operations (controlled handing over of a bribe), at the moment usually used with regard to businesspeople.
Tardiness in investigations and court cases is a structural problem in Poland. This was confirmed among other things in a pilot judgment issued by the European Court of Human Rights (ECHR) of 7 July 2015 in Rutkowski and Others v. Poland. This is also confirmed by Ministry of Justice statistics. In 2018, the number of investigations of a duration of between two and five years was up 583 on 2017. Tardiness can occur in particular in complex criminal cases with a commercial element, and for this reason the problem of tardiness will probably affect corporate liability cases conducted once a law now before parliament takes effect. Based on the current wording, the question arises of who will be able to file a complaint concerning tardiness in cases of this kind, and when.
Compliance programmes are gaining in popularity, in particular in the context of a draft of a new corporate criminal liability act, as a defence precisely against this liability. Primarily, however, compliance should be a tool for ensuring that an organisation functions properly, especially as the number of regulatory requirements is on the rise. To fulfil both functions, a compliance programme must be effective.
The debate about whether implementing and enforcing a compliance programme is a general legal obligation is nothing new. Compliance is a tool for managing an organisation’s operational processes, preventing wrongdoing, and mitigating liability. For this reason, it is an element of the duty to exercise due diligence, with penalties not only of a criminal nature.
One of the basic items that will probably be secured during a law enforcement search is a mobile phone or other electronic device, if there is a “reasonable suspicion” that it may contain information proving that a criminal act has been committed. Mobile phones are an attractive source of information about the holder’s life which investigators can then use as evidence. But what about the confidentiality of correspondence?
The proposal for a new Act on Criminal Liability of Collective Entities published on 28 May 2018 on the Government Legislation Centre website indicates a sea change in the approach to corporate criminal responsibility in Poland. The aim is to achieve more effective punishment of commercial and fiscal offences committed through corporate entities. This is apparent in the wide range of sanctions that could be imposed on collective entities.