Repressiveness, lack of precision in establishing criminal liability standards and trying to violate the principle of non-retro non agi t – we present some comments to the draft new law on collective liability for criminal offences and amending some laws.
In recent days, the comment made on social media by Mr Roman Giertych, who explicitly referred to the "bolshevia" as a new bill on the liability of collective entities for criminal offences and amending certain laws (hereinafter "the Collective Entity Liability Act"), prepared by the Ministry of Justice, echoed quite loudly.
"The entry into force of this law means the end of private property in Poland – we read on the faceboooka official profile of Roman Giertych. – The entire property can be taken by the state at any time.
Without the participation of the court.” Opinions of both the Supreme Court and the Legislative Council of the Prime Minister are also not beneficial to the project's creators. Only the new National Judicial Council asked for an opinion did not, in principle, notice any shortcomings in the new regulation.
Bending the fundamental principles of law
First of all, it should be pointed out that the draft new collective liability law contains a provision Article 63(1), according to which the provisions of the new Collective Entity Liability Act apply to acts committed before the date of entry into force of that new Act, when the conditions of the Article 3 the current law, i.e.
the occurrence of a situation in which the conduct of a natural person has brought or could have been of benefit to the collective entity, even though it is not small.
Such a solution clearly leads to the application of the provisions of the new, more repressive act on liability of collective entities, to acts committed before the entry into force of the new law and thus to violations of the principle of non-retrospective action, as well as the lack of application of a more relative act, that is, the law currently in force, even though the draft contains the principle of proper application of part of the general criminal code.
The fact that a criminal law imposing or exacerbating criminal liability cannot go back is not only obvious to lawyers, and therefore the solution adopted by the drafters should be corrected immediately at the stage of further work on the bill.
The law completely breaks with the existing solution, which assumes that the responsibility of collective entities is possible only if the fact that a criminal offence has been committed has been confirmed by a final conviction of a natural person, a conditional remission of criminal proceedings against him or a case for fiscal criminal offence, the decision to grant that person the authorisation to submit voluntarily to liability, or the decision of the court to dismiss proceedings against that person because of circumstances excluding the criminal offence
New responsibility qualification
The law completely breaks with the existing solution, which assumes that the responsibility of collective entities is possible only if the fact that a criminal offence has been committed has been confirmed by a final conviction of a natural person, a conditional remission of criminal proceedings against him or a case for fiscal criminal offence, the decision to grant that person the authorisation to submit voluntarily to liability, or the decision of the court to dismiss proceedings against him because of the circumstances which exclude the criminal offence.
Projectors assume that, under the new Collective Entity Liability Act, proceedings against a natural person will be irrelevant to hold a collective entity liable. Proceedings against a collective entity may take place entirely independently of proceedings against the natural person responsible for the act, or even if there is an exclusion of liability. In the recipe Article 5 The proposed Collective Liability Act assumes that the entity corresponds to:
- as a matter of fact for an own act, or committed in connection with an activity carried out by an entity by an act or omission of an authority or a member of an authority (although, in drafting this provision, it was apparently forgotten about entities in which there are no bodies such as partnerships),
- where he has obtained from a prohibited act, even indirectly, a property benefit if he has been committed by:
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a natural person acting on behalf or in the interests of that entity within the power to represent him, to take a decision on his behalf or to exercise internal control, or in excess of that power or by failing to comply with the obligation;
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the person employed in that entity in the performance of his duties or in breach of his duties;
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a natural person allowed to act as a result of an excess of his or her rights or a failure to fulfil his or her obligations by a collective body or person referred to in two previous points;
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an entrepreneur who is a natural person or other collective entity directly associated with the collective entity in order to achieve a legally acceptable objective;
- for an offence committed directly in connection with the movement of a collective undertaking or undertaking as a result of the failure to comply with the precautionary rules, even if the offender has not been established.
List of criminal measures
Subject to the provision Article 8 the new law to the liability of a collective entity in an area not regulated by the new law shall apply accordingly the provisions of part of the general criminal code. Applying the law appropriately means applying it directly, with exemptions or not at all.
However, it is not known which provisions of the penal code can be applied directly, except or at all. This means that designers have apparently underestimated the principle of specificity in criminal law, that is, the principle of clear clarification in the law of what and under what conditions are punishable.
It can already be seen that the penalties directives set out in the penal code, such as the age of the perpetrator, the condition of health or the attitude, do not fall within the terms of the penalties granted to the collective entity.
Furthermore, the extent of the penalty under the new Collective Entity Liability Act is of considerable importance, since in the event of a criminal offence in question under Article 5, the court decides on a fine of up to 30,000 to 30,000,000 PLN.
At the same time, the condition that the penalty amount is subject to the collective income achieved in the previous year has been abolished. second the penalty in addition to the penalty is the penalty of termination or liquidation of the entity.
The court shall then decide on the transfer of the assets or property rights of a collective entity to the Treasury, unless they are reimbursed to the victim or to another entitled entity.
Regardless of the penalties, a quite numerous list of criminal measures has been formulated:
- 1) forfeiture of property or property benefits or equivalent;
- 2) a prohibition on the promotion or advertising of the activities carried out, manufactured or sold, provided services or benefits;
- 3) a prohibition on the pursuit of a particular type of business;
- 4) prohibit the use of grants, subsidies or other forms of financial support by public funds;
- 5) ban on the use of the assistance of international organisations whose Republic of Poland is a member;
- 6) a ban on procurement;
- 7) the obligation to return to the State Treasury the equivalent of financial support to public funds received from the moment of the act prohibited until the decision on liability of the collective entity has been given;
- 8) making the judgment public;
- 9) the obligation to remedy the damage or compensation for the damage suffered;
- 10) attachment;
- 11) the permanent or temporary closure of a branch of a collective entity.
According to Article 9 sanctions are also provided for in the event of a prohibited act, but for which the collective entity is not liable on the basis of Article 5, and from which it has been achieved, albeit indirectly, an asset advantage exceeding 1,000,000 PLN.
In such circumstances, the court may, at the request of the Prosecutor and in judicial proceedings of its own motion, declare the forfeiture of the assets or rights of a collective entity in whole or in part or equivalent if the collective entity has served in whole or in substantial part or was intended to commit or conceal the benefit it derives.
Exceptionally, the forfeiture is not decided if it is disproportionate to the nature and extent of the breach of due diligence rules, but the court is obliged to rule on a charge of in principle up to 5,000,000 PLN. Such a regulation raises reasonable doubts as the judgment takes place in isolation from the responsibility for the act.
However, according to Article 11 new law in the event of a criminal offence for which the collective entity is not liable under Article 5, and from which it has obtained a property benefit (but this provision no longer contains an indication of the value of the benefit), the court may, at the request of the prosecutor and in court proceedings also of its own motion, oblige that collective entity to reimburse the acquired property benefit or its equivalent in whole or in part to the Treasury, the victim or any other entitled person.
According to section 2 recipe Article 11 if the application referred to Under section 1, the amount of the collective property benefit obtained by the collective entity is impossible or significantly impeded, the court may decide, at the request of the prosecutor, and in judicial proceedings also of its own motion, in relation to the collective entity, to pay a cash benefit to the Treasury, the victim or any other entitled person.
The cash benefit may not exceed 1,000,000 PLN.
A deceptive premise of "social interest"
In principle, the responsibility under the proposed law is linked to committing a prohibited act. It is therefore sufficient to establish a collective liability procedure simply to convince the prosecutor that there is a reasonable suspicion of a criminal offence and that there is a public interest in it (Article 38 the bill proposed).
The assessment of the circumstances as to whether the social interest is in favour shall take into account the degree of social harm of the prohibited act, the amount of benefits achieved by the collective entity, the nature of the precautionary rules infringed and the degree of their infringement within the collective entity organisation and the economics of the proceedings.
The Supreme Court rightly points out that the dependence of law enforcement on the fulfilment of the condition of "social interest" may lead to either a non-essential condition, since it will always be reasonable to initiate proceedings against a collective entity, or proceedings will be initiated only against some, which will, of course, be decided by law enforcement authorities.
It is sufficient to open proceedings on the liability of a collective entity to simply convince the prosecutor that there is a reasonable suspicion of a criminal offence and that there is a public interest (Article 38 proposed law)
Provisional Management Board as a precautionary measure
The prosecutor will also be able to use the forced board as a precautionary measure. It is ordered to be established in order to safeguard the proper course of proceedings where there is a high likelihood of a criminal offence in connection with the activities of a collective entity, and its activity could result in another criminal offence, damage the Treasury or another person, or impede the conduct of criminal proceedings or criminal proceedings concerning the liability of a collective entity.
However, according to the provision Article 53 preventive measures shall be taken where there is a high likelihood that the collective entity commits an act, and that the collective entity's activities could result in another prohibited act, cause damage to the Treasury or to another person, or impede the conduct of criminal proceedings or proceedings concerning the liability of a collective entity. The catalogue of possible measures is defined as follows:
- 1) a ban on promotion and advertising;
- 2) the prohibition on the conclusion of contracts of a certain type;
- 3) the prohibition of specific activities;
- 4) a prohibition on the imposition of assets or the disposal of assets without the consent of the court of property;
- 5) the prohibition of competition for public contracts for the duration of that procedure;
- 6) suspension of payments of grants or subsidies;
- 7) a prohibition on the merger, division or transformation of a collective entity.
Notwithstanding the above, it is also possible to hedge assets on the property of a collective entity. They may be established in respect of penalties and measures, the obligation to repay the benefit or its equivalent or the cash benefit in question under Article 11(2) bills as well as court costs.
Liability for the entity after the transformation process
Attention should also be paid to the introduction of new solutions to bring collective entities into responsibility in the draft law also in the case of prior transformation processes. Namely, the act committed before the date of merger, division or transformation is the responsibility of a collective entity established in accordance with the provisions of the Act. It follows that, fortunately for some, not all possible asset restructuring was covered by the provision.
In the case of a separation procedure, some doubt arises as to the obligation to assume the responsibility provided for by the new law by all collective entities that have taken over at least part of the rights and obligations of the shared entity.
The joint and several liability of these entities shall be limited to the acquirer's amount of the transferred assets at the time of the transfer and at the prices at the time of the ruling, taking into account the need to settle the liabilities related to the transferred assets. Since assets are essentially assets and liabilities (i.e. de facto liabilities and reserves), it seems that in the draft law, its creators under the term ‘liability’ only assume assets in an unauthorised manner.
It does not indicate, in the same way as in the provision Article 546(1) a code of commercial companies that liability is limited to the net assets allocated to the acquiring company in the plan of division, but that will be the value at the price of the ruling, less the liabilities related to the transferred assets.
This means that since prices are generally rising, the value of the assets taken over for the time of the ruling will be higher than at the time of its acquisition, while the value of the liabilities related to the transferred assets will not increase in principle – taking into account the state of the liabilities at the time of the acquisition.
Unless the project promoters assume that, for the calculation of the value of the assets for the moment of the ruling, any other obligation entered into after the takeover, but necessary to regulate and related to the acquired assets, e.g. a new credit, the security of which is, inter alia, a machine taken over by division.
In any event, the provision is unclear and certainly needs to be clarified, preferably towards coherent content with Article 546(1) k.s.h.
Signalling work and the employer's interest
While examining the new law comes yet one Doubt. For collective operators as employers, the protection of whistleblowers is an important issue introduced by the new law.
Namely, if in connection with the notified information referred to under Article 12, there has been a breach of the employee's rights vis-à-vis the person submitting the information or termination of the employment relationship or of the mutual agreement with that person, the court may, at the request of the person who has notified the information, rule: return to work, compensation and/or cash benefit in question under Article 11(2).
The question, however, is whether the proposed solution would not threaten employers to use collective workers and possibly other entities to achieve subjective objectives, to exert pressure to retain labour or other rights or to obtain financial benefits.
The new Collective Entity Liability Act is intended to introduce effective tools to bring collective entities into responsibility and severe sanctions in the event of a prohibited act. In the explanatory memorandum of the bill, the creators convince about the inefficiency of existing solutions and in some ways have the rightness.
However, it should be borne in mind that good law and effective solutions should be created for society for years to come, without the need to bring disputes before the Constitutional Tribunal.