Overall impact of CBA – figures on cases and comparison with other law enforcement agencies

Each year the Central Anti-Corruption Bureau (CBA) prepares a report entitled “Map of Corruption in Poland”. The newly published report (10th January 2013) shows figures from 20111. Therefore, the full statistical data from 2012 are not yet available and will be elaborated on towards the end of 2013.

The report covers information on corruption cases registered by The National Centre of Criminal Information,2 by the Police, CBA, ABW (Internal Security Agency), prosecution, Border Guard (Straż Graniczna) and the Military Police (Żandarmeria Wojskowa).

In 2011, there was a decrease in the general number of registered corruption cases. In 2010, it was 13,938 and only 9,703 criminal offences in that sphere were registered the next year. The most popular criminal offence connected with corruption was the breach of art. 228 of the Criminal Code.3 In 2011, there was a total of 3,676 of this type of criminal offences out of which 3,168 were registered by the Police and only 87 by the CBA only. Generally, the Police registered 83% of all cases of corruption, the prosecution ranked second with 12.3% and the CBA was third with the total number of 314 cases registered.

In 2011, the CBA was able to close preparatory proceedings in 96 cases which ended in 45 acts of indictment issued to the court. To compare, the Police closed 2,417 cases in 2011, 1,798 of which ended with the act of indictment4.

Other interesting figures show that the CBA is mostly focused on cases of bribery in which only Polish citizens are involved. In 2011, only one suspect was a citizen of another country (Ukraine). The Police proceeded cases of 66 suspects with foreign citizenship (including, among others, Ukraine, Belarus, Lithuania and China). The report reveals data on the number of people validly sentenced (2,937 in 2011), but there are no figures that allow to link it with the proceedings initiated by the CBA.

Is CBA a politically neutral entity?

The question of CBA functioning was one of the most important issues raised during the election campaigns for parliament in 2007. The Anti-Corruption Coalition of Non-governmental Organizations5 asked all parties involved in the campaign for their plans on the mode of operation of the CBA. The Civic Platform criticized the operation of the Office under the then PiS government, including its politicization. The Civic Platform also made ​​a promise to introduce changes aimed at the subordination of the CBA to the Parliament. The Civic Platform representatives then wrote:

The political dependence of the Head of the CBA nominated by the Prime Minister will always give rise to the temptation to use this service for political purposes. For this reason, they need to be thoroughly reformed. A proper model should be based on the formula of the Supreme Chamber of Control, which is an independent body subject only to the Parliament. The Head of such an office should be elected to the post by the members of Parliament for one term longer than the term of the Parliament itself, and should not be recalled from the post during his term.”6

However, after winning the elections and forming the government, neither the Civic Platform nor the government have prepared a draft amendment of the relevant legislation in both of its cadencies.

At present,7 the Head of the CBA is a central authority of government administration supervised by the Prime Minister, acting with the assistance of the CBA, which is a government administration office.

The Head of the CBA is appointed for a term of four years and may be recalled by the Prime Minister following a consultation with the President of the Republic of Poland, the Special Services Committee and the Parliamentary Committee for Special Services. The activity of the Head of the CBA is subject to the Sejm control, which means that the Head of the CBA must , by 31 of March, present an annual report on the performance of the CBA in the previous calendar year to the Parliamentary Committee for Special Services and to the Sejm and the Senate (all MP’s and senators), with the exception of information to which the regulations on the protection of classified information apply. The Parliament has no role in appointing or recalling the Head of the CBA. The opinion given by the Parliamentary Committee for Special Services during the process of appointing or recalling the Head is not binding for the Prime Minister.

In 2012, the Institute for Public Affairs (together with Transparency International – Secretariat) released a report on anti-corruption mechanisms in Poland in which one of the chapters was devoted to the CBA8. The authors of the report decided to estimate CBA independence as a moderate scoring with 50 points (on a 0 to 100 scale)9. According to the explanations provided in the report, there is a lack of sufficient civic control over CBA activities and the conditions for recalling the Head may be treated in a discretionary manner. As an example, the authors pointed out the fact that one of the conditions for recalling the Head is non-fulfillment of the requirement of an immaculate moral, civil and patriotic attitude. This was a factual and formal reason for Prime Minister Donald Tusk to recall the Head of the CBA Mariusz Kamiński in 2009 after the gambling affair scandal. Afterwards, Mariusz Kamiński came back to the Law and Justice party (he resigned from his membership just before he was appointed for the post of the Head of the CBA in 2006) and was elected from its lists to the Sejm. Therefore, one of the recommendations of the report authors is to include the condition that the person wanting to be appointed for the Head of the CBA not act as a member of any political party within the period of 5 years before the appointment. It has to be underlined that also in my opinion the recommendation described above needs to be implemented.

The other recommendation is connected with the civic control over the CBA understood as broader reporting on its factual activities. In my opinion, this recommendation should be formulated in a slightly different way. The example from the “2011 Map of Corruption” showed that the CBA is willing to disseminate large numbers of data when compared to the activities of other relevant services and offices. The Map was prepared in an exhaustive and reader-friendly manner, but it should be drawn up by an independent institution, for example by the Ministry of Justice which has no biased interest in comparing data on the effectiveness of such institutions as the Police, the CBA etc.. This solution would definitely increase the level of credibility of the data included in the Map.

As for the manner of appointing the Head of the CBA by the Sejm, it is primarily a constitutional issue as the CBA itself is part of central administration and not an independent institution such as the as ombudsman or the Supreme Audit Office. During the 2006 debate on the Act on the CBA, the proposition to allow the Sejm to appoint the Head of the CBA was controversial according to the experts who were rather close to the statement that it could stand against the distribution of powers.10 The idea was dropped after all (although it was put forward in the legislation process).

Introducing provisions that would allow the Sejm to appoint the Head of the CBA require changing the concept of the CBA as a government administration office, and the Head of the CBA as the central government body controlled by the Prime Minister. The mode of selecting the Head of the CBA would then remain open and would resemble the model that has been used, among others, in the case of the Institute of National Remembrance. At the same time, such a decision could undermine the consistency of the legal system where special services are subordinate to the Council of Ministers. It raises additional doubts about the constitutionality of delegating the performance of public tasks to entities other than the government authorities themselves11.

Today, the society and politicians are aware of the risk of politicization of the CBA and of its being used as a tool of political fight. At the same time, the citizens’ attitude towards the CBA does not suggest that factual independence of its Head is crucial. In 2009, during the recall of Mariusz Kamiński from the post, public opinion polls showed the same number of people thinking that he performed his duties badly and those giving him a good mark (15% and 15%, respectively)12. This may point to the fact that the CBA is part of a very polarized public debate in Poland, or otherwise suggest that there are no significant tensions between Poles with respect to the CBA potentially being a politicized office.

After the change of the Head of the CBA there has been no widespread public debate concerning the politicization of the CBA under the new Head, which means that the current management has done a lot in order to change its image of a political tool rather than an anti-corruption service. With the Mirosław G. corruption scandal, the old (2006-2007) image of the CBA came back after the judge criticized the “Stalinist” methods of CBA investigators13. The case also provided a fairly good view of CBA methods used in the past. On the one hand, the Court agreed with the outcome of CBA investigation and sentenced the Doctor for 19 incidents of bribery, but at the same time pointed out that the methods used by CBA agents were too far inappropriate and maybe even not legal.

In 2009, the CBA started a campaign to show its activities as more preventive and educational. In my opinion, this part of CBA activity is successful and led to the creation of websites and public activities around the topic of countering corruption and its less punitive aspects.

It has to be emphasized that the Law on the Central Anti-Corruption Bureau does not provide the legal ground for undertaking these activities. According to the art 2.1 of the Law, the CBA should perform only repressive and control functions14.

It is worth noting that the CBA, together with the Anti-Corruption Coalition of NGO’s, led a TV campaign with a series of TV spots on corruption (between 22 of November 2012 and 13 of January 2013). Some of the broadcasts are available on the CBA website.15

All in all, in my opinion, the question of independence of the head of any secret service, including the CBA, is connected with the overall political atmosphere. In the years 2006-2009, experts were of the opinion that the Head of the CBA should be appointed by the Sejm, but after the change on that post those voices have not been heard frequently.

The Minister of Interior Jacek Cichocki proposed to establish the new system of the control over the secret services16. Especially in the sphere of their procedures that interfere with the lives of citizens. His idea is to found the body which consist of the retired judges from the Supreme Court and the Constitutional Tribunal who will be entitled to control the performance of secret services tasks. At the moment courts only agree for implementing selected procedures by secret services (wiretapping) but they do not control its implementation. According to his view, the supervision over the secret services should be transmitted from the Prime Minister to the relevant ministers. The initiative of founding the new institution was warmly welcomed by human rights organizations17 but there is no further development so far.

It should be underlined that the CBA is unlike any other secret service. The main area of its interest is to combat corruption in public administration and other entities controlled by the Prime Minister. In most of the corruption cases, public officials are involved. Therefore, it is worth considering a solution that will guarantee maximum independence for the Head of the CBA whereby he/she would be appointed and recalled by the decision of the Parliament. It must be remembered, however, that such a solution has to be the subject of an in-depth legal analysis to make sure that it would be in accordance with the Polish Constitution.

The important question that has to be asked in this context is whether we need the CBA in its present model. There is no doubt that Poland needs and is obliged to design an independent anti-corruption institution18, but maybe such an institution should address only or mainly preventive and educational goals targeted at the society and public administration. According to the view of some experts, the lack of the overall anti-corruption policy and strategy is Poland derives from the fact that Poland did not implement the art 6 of UN Convention19. Therefore, it is important to not only to discuss the role of the CBA, but also to influence Polish authorities to build the comprehensive anti-corruption system including establishing the independent institution as one mentioned in the Convention.

Figures presented in the 2011 CBA report may prove that CBA activity in investigating acts of corruption is ineffective compared to other institutions and for that reason Poland should open (also in the course of Minister Jacek Cichocki propositions) the debate on the new perspectives of the independent anti-corruption institution.

Footnotes

1 CENTRALNE BIURO ANTYKORUPCYJNE (2012) Mapa Korupcji (The Corruption Map). Warszawa: CBA Available from: http://antykorupcja.edu.pl/index.php?mnu=12&app=docs&action=get&iid=17444

2 Krajowe Centrum Informacji Kryminalnych http://www.policja.pl/portal/pol/130/

3 The comprehensive information on act of corruption described in the Polish legal system can be found in English in the CBA “The Anti-Corruption Handbook for Entrepreneurs, available from: http://www.cba.gov.pl/ftp/zdjecia/A5_poradnik_dla_przedsie_ang_21_11_2012.pdf

4 CENTRALNE BIURO ANTYKORUPCYJNE (2012) Mapa Korupcji (Corruption Map). Warszawa: CBA starting from p. 27 Available from: http://antykorupcja.edu.pl/index.php?mnu=12&app=docs&action=get&iid=17444

5 http://www.akop.pl/o-akopie.html

6 The report on the implementation of the election promises made ​​by political parties during the election campaign in 2007, available from: http://www.akop.pl/public/files/raport_nawww-1321873027.pdf

7 As stated by The Law of 9 June 2006 on Central Anti-Corruption Bureau. Ustawa z dnia 9 czerwca 2006 r. o Centralnym Biurze Antykorupcyjnym, available form: http://isip.sejm.gov.pl/DetailsServlet?id=WDU20061040708, English version available from: http://cba.gov.pl/ftp/filmy/ACT_on_the_CBA_updated_13_06_2011.pdf

8 Aleksandra Kobylińska, Grzegorz Makowski, Marek Solon-Lipiński (red.) Mechanizmy przeciwdziałania korupcji w Polsce Raport z monitoringu, p. 187. Available from: http://www.isp.org.pl/publikacje-download,1,515.html

9 Mechanizmy, p.188

10 http://www.pb.pl/1391805,17069,winczorek-niekonstytucyjnosc-powolywania-szefa-cba-przez-sejm-dyskusyjna

11 It is worth to consider remarks made by Wojciech Odrowąż-Sypniewski and Piotr Radziewicz available from http://orka.sejm.gov.pl/rexdomk5.nsf/Opwsdr?OpenForm&275

12 Polska Agencja Prasowa (2009) Sondaż: podzielone opinie ws. rządów szefa CBA . WP.pl, 8 Oct. Available from: http://sondaz.wp.pl/kat,27417,opage,2,wid,11576194,wiadomosc.html?ticaid=11008e

13 (2013) Stalinist methods?The Warsaw Voice 31 Jan. Available from: http://www.warsawvoice.pl/WVpage/pages/article.php/25794/article

14 The Law on the Anti-Corruption Bureau

15http://antykorupcja.edu.pl/index.php?mnu=12&id=7061

16Polska Agencja Prasowa (2012) Zmiany w służbach specjalnych. To propozycje Jacka Cichockiego. Money.pl 22 Nov. Available from: http://prawo.money.pl/aktualnosci/wiadomosci/artykul/zmiany;w;sluzbach;specjalnych;to;propozycje;jacka;cichockiego,93,0,1201757.html

17 Zawadka G. (2013) Służby specjalne pod kontrolą sędziów. Rzeczpospolita 30.01. Available from: http://www.rp.pl/artykul/975394.html

18 As in the General Assembly resolution 58/4 of 31 October 2003 United Nations Convention

against Corruption art. 6

19 Kopińska G. (2012) Niedoceniane narzędzia zapobiegania korupcji. Dobre Praktyki w zakresie wspierania trnapsarentności w sektorze publicznym i prywatnym. Centralne Biuro Antykorupcyjne p. 62. Available form: http://www.antykorupcja.gov.pl/ftp/filmy/Materialy_pokonferencyjne.pdf