CMS Expert Guide To Mandatory Reporting Of Criminal Offences For Companies And Their Responsible Persons in Poland

Generally, anyone, having learned of the commission of a crime prosecuted ex officio, has a social duty to notify the public prosecutor or the police. Public institutions which learned about a crime prosecuted ex officio in connection with their official activities have legal obligation to report it.

However, it is generally not punishable for non-public institution to fail to report a crime, unless it is one of the crimes listed subject to mandatory reporting. These include specific crimes from inter alia the following categories:

• Crimes against, peace, humanity and war crimes: such as genocide
• Crimes against the state and defence capabilities: such as espionage, coup d ’estate, and acts against the constitutional order, destruction of military installations
• Crimes against life and health: such as murder and inflicting serious bodily harm
• Crimes against public safety and public order: such as hijacking of a vessel, causing a public danger (e.g. causing a fire, causing a building to collapse), kidnapping
• Sexual crimes: such as child pornography and sexual exploitation of children, sexual exploitation of helplessness or limited mental capacity, serious cases of rape (e.g. using a firearm or knife)
• Terrorist crimes: i.e. serious crimes committed for a terrorist purpose as defined by the law.

Failure to report the above crimes (or punishable preparation or attempting of such crime) despite having reliable information constitutes a crime. There are two exceptions from the liability for failure to report:

• if there are sufficient grounds to assume that the authorities are already aware of the crime,
• if the person prevents the crime from occurring.

In some cases, other specific provisions of law may require reporting of suspected crimes (e.g. AML law provisions).

The responsibility to report a criminal offence in a company lies with the person who has become aware of the offence.

In a company, the obligation to report a criminal offence is usually fulfilled by individuals in positions of authority, such as:

• Senior management: including the CEO, CFO, and other high-ranking executives.
• Compliance officers: who are specifically tasked with ensuring the company adheres to legal and regulatory requirements.
• Legal department: which may have a duty to report certain offences to the authorities.

Criminal offences should be reported to the appropriate law enforcement authorities, in most cases Police or public prosecutor’s office.

If the criminal offence is not reported, although it is required by law, the responsible person can be prosecuted and convicted by the criminal court and sentenced to up to three years imprisonment. In some cases, failure to report may or otherwise prevent the crime may also be connected with risk of criminal liability for failing to prevent the criminal effect.

In case a person reporting an offence deliberately provides the authorities with false information, it can lead to criminal liability of the notifying person.

If the offence is reported, in case of most crimes the law enforcement authorities have a duty to prosecute the person responsible for the criminal offence. This means that once the process is initiated, the person who filed the report cannot withdraw it, nor can they prevent the police or the public prosecutor from pursuing any additional leads uncovered during the investigation.

The initiated investigation will likely result in the authorities collecting relevant information and evidence, which in most cases includes the interview of the reporting person and other witnesses, as well as subpoenas and even searches. This may present an operational challenge.

Self-reporting of most crimes (with some exceptions e.g. bribery) will not result in impunity - all perpetrators, including the reporting person, may be convicted and the unlawfully obtained benefits can be confiscated.

If the perpetrator, such as an employee, representative, or member of the entity's governing bodies, was acting on behalf of or in the interest of the company, there is a risk of liability of the company based on The Act of October 28, 2002, on Liability of Collective Entities for Prohibited Acts under Penalty (see answer to question 5 below).

Individuals can be held criminally liable for aiding and abetting (the maximum level of punishment is the same as for committing the crime).

Abetting takes place when someone persuades another person to commit a criminal offense. Aiding occurs when, with the intention of another person committing a prohibited act, one's behaviour facilitates its commission, in particular by providing a tool, transferring it, providing advice or information; who, by their behaviour, facilitates another person committing a prohibited act contrary to the legal, specific obligation to prevent such a prohibited act from being committed. Aiding can also occur by inaction by a person obligated to prevent criminal effect.

Moreover, if an employee, board member or individual cooperating with the company or another person who was allowed by the company’s to act by an authorised representative (or acted with their knowledge) is finally convicted for certain crimes, the company may be subject to a financial penalty and other measures such as bans on conducting certain activities, publicizing the judgment, or forfeiture of objects under the Act of October 28, 2002, on Liability of Collective Entities for Prohibited Acts.

Furthermore, obstruction or frustration of criminal proceedings by assisting a perpetrator of a crime or a fiscal crime in evading criminal liability, especially by harbouring the perpetrator, obliterating evidence of the crime is subject to the penalty of deprivation of liberty for between three months and five years. Deliberately withholding the truth (e.g. about a crime being committed) when interviewed as a witness can also entail criminal liability.