Anti-Corruption Efforts in
Poland
-The CBA-
Review by Alessandro D’Alessio
The Central Anti-Corruption Bureau
(CBA) is a polish special service that has the specific objective to combat
corruption in public and economic life, especially in local and public government
institutions as well as fighting against actions that can have a negative
impact to the State’s economic interest. The Act of 9 June 2006 on the Central
Anti-Corruption Bureau regulates its activities. The Head of the CBA, appointed
for a term of 4 years, is the central authority of the government
administration; the Prime Minister appoints him after a consultation with the
President of the Republic of Poland, the Special Services Committee and the
Parliamentary Committee for Special Services; the Head of the CBA may be
reappointed only once.
The main objective of the CBA is to
fight corruption where the public sector meets the private one. According to
the article 2 of the Act on the Central Anti-Corruption Bureau, the CBA deals
with prevention, identification and detection of crimes and offences, prosecution
of perpetrators as well as control, analytical, preventive, operational and
pre-trial activities.
The operational and pre-trial
activities consist of preliminary investigations aiming to disclose corruption
offences. The Bureau performs also investigations under the Penal Code with a
special regard to those offences against activities of public institutions and local
government, administration of justice, financing of political parties, fiscal
obligations as well as donation and subvention settlements.
Control activities are control
measures that can be disposed by the CBA only. The main goal of these
activities is to detect abuse of power by persons performing public functions,
corruption in public institutions as well as activities detrimental to the
State’s economy. Controls are performed on the basis of the annual control
plan, approved by the Head of the CBA. Control activities also cover detection
and prevention of non-compliance as well as “control of accuracy and veracity
of asset declarations or statements on conducting business activities by
persons performing public functions”[1].
Informative and analytical
activities are focused on the identification of threats and irregularities to
the economic interest of the State and transmitting them to the Prime Minister
and other important state officials. These analyses are useful to pre-detect
potential threats and formulate a complete evaluation of the situation.
The CBA action is also focused on
educational and preventive activities. On the one hand there are the CBA
websites, www.cba.gov.pl along with
the Bureau’s sites on Facebook and Twitter, which provide information about its
tasks and structures as well as other educational websites, like www.antykorupcja.edu.pl, which contain important legal information along with news
on the activities of Polish and foreign government institutions and NGOs
engaged in fight against corruption. On the other hand there are the CBA
publications available in the form of e-books too. Some of them are translated
in English and it’s important to briefly analyse them in order to give a wider
comprehension of the prevention activities carried out by the CBA towards
different sectors of the polish society.
“The Anti-Corruption Handbook for
Entrepreneurs” provides two corruption definitions: a substantive criminal law
and a socio-economic one. The first is concerned with criminal law and requires
a more precise language while for the second one, being used for preventive
purposes, a broader definition is sufficient. Then the handbook describes in
depth, citing polish Penal Code articles, legal regulations on corruption
offences like venality and bribery, abuse of trust/mismanagement, economic
corruption, corruption in sports, money laundering, frustration or obstruction
of public procurements and other provisions.
The document provides also a
description of non-punishable forms of corruption like nepotism, the abuse of
one’s position by backing one’s relatives, and cronyism, favouritism based on
social relationships, as well as the problem of conflicts of interests.
Legal consequences of corruption are
also provided to complete the framework related to the legal aspects of the
problem.
The most important paragraph
concerns the anti-corruption policies in business. The handbook suggests all
companies the use of codes of ethics since a lot of behaviour regarded as
reprehensible are not unlawful. The model code for entrepreneurs, in Poland, is
an element of ethics in business developed by the “Institute for Private
Enterprise and Democracy” Foundation on request of the National Chamber of Commerce.
The document also underlines the importance of anti-corruption programmes that
refer particularly to the System of Prevention of Corruption Threats developed
by the Chamber of Commerce and the Centre for Testing and Certification. Such
system has the goal to support the performance of institutions and companies that
want to increase the confidence in their fairness and can help to disclose
those “places”, inside an enterprise, that can be endangered by corrupt
activities. One of the last paragraphs describes how to behave in a corrupt
situation. The CBA specifies that there are not ideal algorithms but only general
principles of behaviour for entrepreneurs and provides also some useful
examples of risk of corruption symptoms.
Another important document is the
“Anti-Corruption Recommendations On Public Procurement Procedures”. Since
public procurements constitute the largest market in Poland, the CBA tries to
control irregularities that can take place while spending public funds on
purchasing services or supplies.
The recommendations included in the
publication “aim to introduce the participants to the procurement procedure and
provide support to the managers of procuring entities in conducting public
procurement by identifying frequently occurring irregularities and suggesting
the methods of preventing them”[2].
Through the description of many different cases where threats can appear, the
CBA suggests the use of the “specification of essential terms of the contract” (SETC)
especially for the transparency of procedures during the preparation of a
public procurement procedure. Indeed, the manager of the procuring entity is “recommended
to introduce the requirement to create two SETCs within one procedure, one
outside SETC and the other one for the procedure documentation (the internal
documentation of the procuring entity), indicating the names and surnames of
the persons involved in the development of different parts of the specification”[3].
The CBA provides also some
guidelines to follow at each stage of the procurement like openness, fair
competition, equal treatment of entities applying for the public procurement, elimination
of situations indicating the conflict of interests, elimination of discretion
when taking decisions, responding by the manager of the unit to symptoms of
corruption.
Another CBA publication that is
worth mentioning is “Anticipated Corruption Threats in Poland”. This document
describes which areas in the country are exposed to corruption threats.
In the infrastructure sector threats
may be related with public procurements for modernisation of rolling stock and railway
infrastructure. The report then analyses the process of informatisation of
public administration; in this case corruption threats may lead to the collapse
of public IT projects, many of which have an important impact on the security
of the State too. Moreover corruption causes the most affordable and innovative
entities to lose while the ones that have a better informal access to the
representatives of the public authorities win.
The section about the use of EU
funds explains how much this specific area is particularly endangered by crime
because of the amount and importance of the funds for public finances.
The defence sector seems to be
extremely endangered too. In the dedicated paragraph the CBA explains that,
because of some peculiarities like free market restrictions and frequent
exclusions from the application of the Public Procurement Law, there are great
opportunities for corruption in this area.
In the final summary of the document
the CBA suggests a series of activities that should be undertaken like “the
creation of anti-corruption policy of the State aiming to implement uniform
anti-corruption solutions in institutions, implementation of solutions oriented
at cooperation, including the exchange of information between state
institutions, law enforcement agencies and services responsible for combating
crime, protection of legislative works over regulation projects of particular
importance to the economic interest of the State”[4].
The activities carried out by the
CBA aren’t concerned with prosecution and repression of the phenomenon only but
also through an important prevention strategy. This two-sided approach seems to
be very successful if we consider the levels of corruption measured through the
Corruption Perception Index (CPI) of the last years.
The CPI published by Transparency
International (TI) in 2005 showed that Poland was the most corrupt of the eight
new Central and Eastern EU member states. However after the creation of the
Bureau, in 2006, the levels of corruption have systematically decreased. In
2005 the score was 3.4 while in 2006 was 3.7. The perception of corruption
decreased even more in the following years reaching 4.2 in 2007 and 60/100 in
2013. This improvement is related to the activities conducted by the CBA and by
international institutions too.
After the fall of the Soviet Union,
Poland faced the transition from market socialism to free market economy.
However this process occurred without clear rules and property was often
accumulated in unfair and illegal ways. The polish public opinion became more
and more interested in the corruption phenomenon; during the years of the
post-communist Democratic Left Alliance government the media disclosed a series
of political scandals involving members of this party. The anti-corruption
rhetoric brought the Law and Justice party to power in 2005 and the CBA was
established the year later; however the anti-corruption slogan soon became a
tool to fight political opponents.
International institutions wanted Poland
to adjust their legal system in order to limit corruption. The country ratified
numerous conventions like the OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions (ratified on 20
December 2000), the Council of Europe Civil Law Convention on Corruption
(ratified on 11 September 2002), the Council of Europe Criminal Law Convention on
Corruption (ratified on 11 December 2002), the Council of Europe Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime and on the
Financing of Terrorism (ratified on 8 August 2007), the EU Convention on the
Fight against Corruption involving Officials of the European Communities or
Officials of the EU Member States (ratified on 25 January 2005) and the UN Convention
against Corruption (ratified on 15 September 2006).
On its side the World Bank, in
cooperation with the European Bank for Reconstruction and Development, has been
undertaking a continuous monitoring of corruption in the region through
periodic Business Environment and Enterprise Surveys, looking specifically at
the quality of the interactions between the state and the private sector.
The United Nations Convention
Against Corruption (UNCAC), ratified by Poland in 2006, requires that countries
create institutions to prevent corruption and to enact specialised
anti-corruption legislative measures.
In Poland there are many public
institutions involved in tackling corruption like the police, the Ministry of
Interior and Administration, the Ministry of Defence, the Ministry of Finance,
the CBA, the Internal Security Agency and many others.
Anti-corruption activities are
carried out by domestic non-governmental organisations too. Transparency
International, Batory Foundation and the Anti-corruption Coalition of
Non-governmental Organisations conduct operational strategies like the
“Anti-Corruption Programme” consisting in a number of projects and initiatives
aiming at reducing the scale of corruption in Poland by fostering attitude shifts
among citizens with respect to everyday corruption, advocating new legislation
to ensure transparency of decision-making and organising permanent community
pressure on the government to enforce anti-corruption laws and regulations[5].
In the end CBA activities are just a
part of a wider anti-corruption strategy involving several governmental and
non-governmental actors in Poland. If we consider the Corruption Perception
Index as a reliable indicator, Poland is facing a huge reduction of the problem
due to the implementation of policies and actions that can be considered to be very
successful. However this could be only partially true since sometimes
perceptions don’t coincide precisely with reality.
REFERENCES
Anticipated Corruption Threats In
Poland (PDF), (2013), Warsaw
Anti-Corruption
Recommendations On Public Procurement Procedures (PDF), (2011), Warsaw
Kaja Gadowska (2010) National and international
anti-corruption efforts: the case of Poland, Global Crime, 11:2, 178-209
The Anti-Corruption Handbook for
Entrepreneurs (PDF), (2012), Warsaw
The
Central Anti-Corruption Bureau Guidebook (PDF), (2012), Warsaw
[2] Anti-Corruption Recommendations On
Public Procurement Procedures (PDF), (2011), pag.5, Warsaw
[3] Anti-Corruption Recommendations On
Public Procurement Procedures (PDF), (2011), pag.8, Warsaw
[5] Kaja
Gadowska (2010) National and international anti-corruption efforts: the case of
Poland, Global Crime, 11:2, 178-209
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