The OECD Working Group on Bribery has, since 2013, repeatedly urged Poland to reform its laws to ensure it can effectively investigate and prosecute foreign bribery. Since then, the legislative changes to the Polish judicial system have raised further concern about Poland’s implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention).
On 9-10 November 2020, a High-Level Mission of the OECD Working Group on Bribery discussed these serious issues in virtual meetings with the members of the government: the Secretary of State in the Ministry of Justice and Viceminister for Foreign Affairs, Deputy Prosecutor General, Deputy Commander-in-Chief of Police, Deputy Chief of the Central Anti-Corruption Bureau and other high – level officials.
The members of the High-Level Mission, led by the Working Group Chair with delegates from the Czech Republic, Germany, Russia, the Slovak Republic and the United States expressed their gratitude to the Polish partners, that in the conditions of the COVID-19 epidemic they responded positively to the OECD invitation. They nevertheless regretted that they were unable to meet with all relevant ministers and top officials.
With planned legislative reforms, Poland needs to take urgent steps to ensure companies can be held liable for the foreign bribery offence, even if the individuals who perpetrated the offence are not convicted. In addition, Poland must increase the fines for companies to ensure effective, proportionate, and dissuasive sanctions. Poland has yet to adopt measures to ensure that the “impunity” provision in the Penal Code cannot be applied to the bribery of foreign public officials. Poland must also ensure that appropriate measures are in place to protect private and public sector employees who report suspected acts of foreign bribery from retaliatory or disciplinary action. The Working Group is further concerned about legislative actions with significant consequences for, among other things, the appointment, dismissal, discipline, oversight and tenure of members of the Polish judiciary and the organisational and operational independence of the Public Prosecutor’s Office.
“We thank the Polish authorities for their co-operation and willingness to discuss the serious issues related to Poland’s anti-bribery framework and judicial and prosecutorial independence in foreign bribery cases,” said Drago Kos, Chair of the Working Group on Bribery. “Poland must urgently address the legal deficiencies identified by the Working Group, and step up the investigation and prosecution of alleged cases of foreign bribery in order to address our substantial concerns.”
Marcin Warchoł, Secretary of State in the Ministry of Justice of Poland, said “We share the Working Group on Bribery’s view that there is an urgent need to implement effective tools for corporate criminal liability. The existing legal framework related to legal persons, which requires the conviction of a natural person before kicking off the proceeding against companies, can lead to factual impunity of legal persons. We appreciate the support of the Working Group for proposed legislative amendments to ensure full compliance of our law with the OECD Anti-Bribery Convention”.
The Working Group on Bribery – made up of the 37 OECD Member countries plus Argentina, Brazil, Bulgaria, Costa Rica, Peru, Russia and South Africa – comprises the Parties to the Anti-Bribery Convention. The Working Group conducts a systematic programme for monitoring implementation of the Convention by all its Parties. The Working Group decided to urgently conduct a high-level mission at its June 2019 meeting. The next evaluation of Poland’s implementation of the Anti-Bribery Convention is currently scheduled in June 2022.