Inspired by an article by Daniel Russel, from Carlsons Solicitors Limited Company „Should fraud be pursued as a civil matter or as a criminal offence?”, in which the author describes fighting frauds in England,
I would like to compare it with the practice in Poland. Contrary to common law countries, in Poland both methods of fighting frauds should be used simultaneously – criminal and civil proceedings.
This is necessary, in my view, when it comes to international fraud, where perpetrators must be prosecuted in multiple jurisdictions.
This is due to the fact, that:
▪ one of the biggest problems in Polish civil proceeding is its length, which is mainly due to the long period of waiting for the first or next hearing date, the long period of waiting for expert opinion, etc.;
▪ in Poland, civil courts are not very favorable to collecting evidence ex officio. Courts rarely show initiative and prefer to limit themselves to witness and documentary evidence submitted by the parties;
▪ civil courts are generally slow to grant injunctive relief, have problems when cases cross over into other jurisdictions, do not understand “common law” institutions;
▪ it is also worth noting, that in Polish civil proceedings, much more often that in criminal trials, we can encounter a witnesses concealing the truth. Polish criminal trial inspires more respect and fear of openly testifying untruth;
▪ some evidence, particularly related to money laundering, can only be obtained in criminal proceedings.
Of course, there are judges who are the opposite of what I wrote above and act very vigorously and decisively.
In Polish criminal proceedings it is possible to:
▪ obtain evidence covered by banking, tax and telecommunications secrecy, as well as data analyzed by the General Inspector of Financial Information (such as all transactions exceeding 15 000 EUR) and often this is done fairly quickly;
▪ hear witnesses quickly and then use their testimonies in civil proceedings, including abroad. It happens so, because a victim party has access to the vast majority of files and evidence from the criminal proceedings, can legally use them, especially in court proceeding in Poland and abroad (it is only forbidden to publicly disclose the information);
▪ once charges are brought against the individuals involved, it is possible to seize personal assets of the directors of the company involved in the fraud, which is virtually impossible in civil proceedings. It often persuades the perpetrator to settle;
▪ the institution of the obligation to compensate damages works very well, especially when the offender has a suspended sentence. Often, with a vigorous attitude on the part of the victim, it is possible to recover losses, as the mere fear of imprisonment works better, than imprisonment itself;
▪ of course, the Public Prosecutor’s Office may not take up the case, may drop it for the sake of statistics. Much depends on the attitude of the attorney, just as in a civil case. When initiating criminal proceedings, the notice should use as simple arguments as possible, avoiding complicated civil argumentation. Polish prosecutors are fond of discontinuing proceeding, indicating that the case should be resolved in a civil court.
My long practice and experience resulting from complicated fraud cases conducted over the years indicates, that in Poland the best solution for a client is to start his fight to recover stolen funds by notifying the Public Prosecutor’s Office on suspicion of commitment of criminal offence. Legally obtained evidence gives the possibility of later or parallel use in civil proceedings both in Poland and abroad. Both proceedings should be conducted simultaneously which allows flexible use of evidence in both proceedings with the main goal – to recover the stolen assets.
Author: Jarosław Kruk – Attorney at law, Managing partner
