Corruption in the IT sector: small crown witnesses - International Law Office

The Appellate Prosecutor's Office recently announced that the former director of the IT Projects Centre, Andrzej M, who was suspected of taking the highest bribes in case history for rigging tenders for the computerisation of government authorities, has been released from custody. He has been granted the status of 'small crown witness', which is defined in Article 60(3) of the Criminal Code as a person who "discloses to the prosecuting authorities information concerning persons involved in the commission of a criminal offence and relevant circumstances of its commission". This provision provides for an extraordinary mitigation of punishment with respect to such person - in the case of Andrzej M, a suspended prison sentence or a prison sentence of up to one year. This is the reward for a criminal who cooperates with the justice authorities.

The media has reported that the prosecuting authorities and the Central Anti-corruption Bureau are now examining the role of Andrzej M's former superiors - the former deputy minister of the interior and the former deputy prime minister - who decided to establish the IT Projects Centre and to entrust the management of the institution to Andrzej M. They are also examining the participation of consulting agencies - such agencies assessed the value of the projects in order to determine whether they were overestimated, so that the companies participating in the tender could pay bribes from the surplus to the decision makers, and to ensure that the tenders were not rigged before their announcement. In reality, it is unlikely that the former deputy prime minister will ever be brought before a court, let alone that someone from the management of the international consulting agencies will be accused of deliberately inflating the value of IT projects to generate funds for bribes.

There is no doubt that the Appellate Prosecutor's Office and the judiciary are unable to cope with the complexities of the economic issues. The question arises of whether Andrzej M's testimony incriminating other people will be credible and corroborated by other evidence. Several years ago, doubts arouse over the legitimacy of the provision concerning the extraordinary mitigation of a punishment applicable to a person who discloses his or her partners and the circumstances of an offence, and whether this contributes to the prosecution authorities failing to clarify the true circumstances of the offence as they are satisfied with the testimony they have. It has been suggested that the legislature abolish this automation and introduce a provision that a court may or may not apply the extraordinary mitigation of a punishment.

In light of practice in the Polish penal system, this suggestion should be followed. It is often the case that after evidence has been taken from the small crown witness, further evidentiary proceedings in a particular case simply freeze and the prosecution bases its case on this sole testimony, trying to "extract" testimonies from others through extractive arrests (whereby for a few months, no procedural actions are taken with respect to a person under arrest to force him or her to give up). It is hoped that this will soon change.

Polish law also provides for a 'large crown witness', as regulated by a special legal act inspired by Italian and US solutions. So far no businessperson has become a large crown witness. This may change as the media has reported that the head of Amber Gold, the pyramid scheme that triggered a political crisis during Summer 2012, has applied for and been granted this status. However, the 'large key witness' is a source of problems for the prosecution authorities. In recent months the courts have found that the testimonies of crown witnesses are unreliable and they have questioned the prosecution authorities' method of circumventing the statutory prohibition on relying on the sole testimony of one crown witness by having that testimony confirmed by another crown witness. Undoubtedly, both the institutions mentioned above are needed for the proper administration of justice, but some major reform is needed.

For further information on this topic please contact Jarosław Kruk at Kruk & Partners by telephone (+48 22 825 5650), fax (+48 22 825 0980) or email (jaroslawk@legalkw.pl).