Manual control of the public prosecutor’s offic

How can this happen?

For example, by the issuing of orders to him by a superior prosecutor, i.e. by means of so-called ‘orders coming from above’.

It should be recalled in this context that the boss of all bosses in the prosecutor’s office is none other than a flesh-and-blood politician – each time the Minister of Justice.

This way of functioning of the prosecutor’s office has been repeatedly criticised, but there has never been any real, effective decoupling of the prosecution institution from the Ministry of Justice.

It is not just that the positions of Prosecutor General and Minister of Justice should be formally separated.

It would be necessary to ensure their institutional independence.

What I am referring to above is part of a very broad discussion that has been going on in the public space for years.

The problem is that virtually no successive Polish government has sought to change this state of affairs.

Today’s post will present this problem on the basis of a specific case of my client.

On the surface, the case looked like any other white collar crime case, in which a person (manager) managing certain assets was supposed to abuse his powers and cause property damage, in this case of nearly PLN 6 million.

The perpetrator himself was alleged to be the beneficiary of the whole procedure, as he was attributed to act “with the aim of achieving a financial benefit”.

The case quickly gained media publicity because, firstly, the action of the receiver concerned one of Warsaw’s housing cooperatives, and therefore potentially the interests of at least several thousand people were affected by the action of a public official.

Secondly, the Minister of Justice – the Prosecutor General – personally intervened in the case and announced that he would “do something about the case.”

Consequently, the receiver was accused of failing to comply with a number of obligations: he was to conceal some assets (real estate) so that they would not be included in the appraisal reports drawn up.

In this respect, the receiver in his criminal conduct was alleged to have collaborated with an expert, who was also charged with committing a criminal act.

Consequently, in the eyes of the public prosecutor, there was a sale of the assets of the bankrupt cooperative at a significantly undervalued price amounting to .

What is more, the trustee was also alleged to have entered into an agreement with an entity that sought to purchase the cooperative’s assets at an undervalued price and which, in addition, did not meet the basic conditions for participating in the tender announced.

As a result, the management of this company also lived to face charges.

It could be said that such serious and consistent charges are the result of the case being given due weight by the intervention of the Attorney General.

It must be acknowledged that the case was indeed conducted with the utmost diligence: in the course of several years of investigation, more than 40 witnesses were interviewed, several thousand documents were collected, and the whole thing was sealed by forensic expert opinions unfavourable to the defendants.

, https://serwisy.gazetaprawna.pl/orzeczenia/artykuly/9510511,czy-latwo-wykreowac-przestepce-gospodarczego.html, in which I hypothesised that an economic offender is easy to create.

While working on this case, I had the irresistible impression that this was the case.

I am of the opinion that an investigative hypothesis of “mismanagement” by a manager or a state official (including a receiver) is very easy to make.

I have written about this in more detail in the aforementioned article, but it is worth recalling that in many cases it is sufficient for the prosecutor to appoint an expert who will make a negative assessment of, for example, the manner in which money was spent, the performance of a contract or, as in the present case, will point to a specific value of the property differing from that assumed by the perpetrator.

At the pre-trial stage, the expert is most often questioned only by the prosecutor, without the participation of the suspect or his defence counsel, who have no influence whatsoever.

The vast majority of high-profile media investigations take place in this way, and it was no different in the case of the proceedings in question.

Did such “manual control” in my client’s case pay off?

One may bemoan the reality of the situation, but it is sometimes the case that despite the use of official orders by superior prosecutors, including the Prosecutor General, to achieve political goals, it does lead to the intended result, i.e. the prosecution and ultimately the conviction of the perpetrator for the crime.

However, it is necessary to gather reliable evidence and make it verifiable.

The task that was set for our defence team was to confront the evidence collected in the seclusion of the prosecutors’ offices with reality, and the stakes of the case were up to a dozen or so years of imprisonment together with the obligation to repair multi-million damages.

In the course of many court hearings, it turned out that although a significant number of witnesses felt aggrieved by the actions of the receiver, in fact their testimonies were irrelevant to the resolution of the case.

Nonetheless, the testimonies of quite a number of them built the appropriate drama and set the right tone for the case.

Ultimately, the Warsaw-Praga Regional Court acquitted the defendants of all charges against them.

Assessing the witnesses’ testimony as credible, but, to put it bluntly, completely unnecessary in the case:

The court was somewhat more brutal in its treatment of the expert opinion drawn up, still in the pre-trial proceedings.

Without going into an exaggeration, it can be said that with each successive hearing and successive questioning of the expert subjected to questions from the defence, the alleged property damage melted by several million zlotys.

Irrespective of this, the expert’s opinion and, as it were, establishing in this way what the public prosecutor believes the conduct of bankruptcy proceedings “should” look like, did not meet with the approval of the court, which emphasised not only the unsuitability of the opinion for the resolution of the case, but also its complete defectiveness:

There is no denying that the case discussed here looked, at first glance, well prepared by the public prosecutor and required a considerable effort from the defence team to find its happy ending.

The example of these proceedings also shows that it is indeed possible to “create” an entire economic criminal proceeding, bring charges and lead to a multi-year trial, only to find out in the end that all of this, as indicated by the adjudicating court, was unnecessary, as it turned out to be completely irrelevant to the hypotheses of the indictment.

Author:

advocate-bartłomiej Pietrszka