criminal | In Principle

W ostatnim czasie media wielokrotnie informowały o zatrzymaniach prezesów, członków zarządów, dyrektorów spółek. W przestrzeni publicznej pojawiał się wówczas szereg pytań o zasadność takich czynności, zwłaszcza wtedy, gdy sądy odmawiały uwzględniania prokuratorskich wniosków o zastosowanie tymczasowego aresztowania.

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.

An accident on the job generates a range of legal consequences. One of the most serious is the potential for the individual at the employer responsible for occupational health and safety to be held criminally liable.

During criminal proceedings there is a risk that a search will be conducted. Who can search premises and on what basis? Who can be present during the search? At what time of day can a search be held? What happens with items discovered in the search? And is there any appeal against the conduct of a search?

Client confidentiality is an inherent element and fundamental duty in the legal profession. It is the cornerstone of the relationship legal professionals build with their clients. It also a guarantee of protection of the rights of the parties in judicial proceedings, including the right to a fair trial. But what is legal professional privilege? Can anything limit it? And is it losing strength in today’s reality?

A gap in legal provisions might mean criminal liability for management board members for not filing financial statements on time.

Art. 10 of the European Convention on Human Rights protects various kinds of expression, including artistic, non-verbal and non-visual forms. This right means the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. But there are situations where the state can legitimately impose certain conditions and restrictions on exercise of this right.

Work is underway on the Act on Transparency of Public Life, which would introduce numerous solutions not previously encountered in the Polish legal system. The aim of the proposed act is to increase the transparency of management and control over publicly financed institutions, and to reinforce anticorruption mechanisms in Poland.