The article was originally published at OKO.press, 22nd October 2019.

Gerald Birgfellner, assisted by his two attorneys, Roman Giertych and Jacek Dubois, submitted on 25 January 2019 a “notification of a well-founded suspicion of a criminal offence” as described in Article 286 paragraph 1 of the Criminal Code. It provides for a punishment of up to 8 years for a person who “in order to obtain material benefit, induces another person to an unfavourable disposition of his or her own or other property by misleading him or her or by taking advantage of a mistake or inability to properly understand the activity being taken.”

On 21 October, it was disclosed publicly that no investigation would be conducted.

Evidence of how Kaczyński misled Birgfellner was provided by records of conversations that the businessman began to record when he saw that he was being deceived.

But the District Prosecutor’s Office in Warsaw did not feel it was enough to possess recordings of unambiguous statements by Jarosław Kaczyński (of the type “I don’t want to cheat anyone, but…”) and dozens of documents presented by Birgfellner – confirming that he did the work ordered by Kaczynski and was not paid.

The investigators were supposed to ensure that Kaczyński was not subjected to questioning and did not stand trial. However, why did it take the prosecutor’s office almost nine months to refuse to initiate the investigation, which is eight months longer than the provisions of the Criminal Procedure Code allow?

The case of “Kaczyński’s tower”

The company “Silver,” owned by the Lech Kaczyński Institute Foundation (the head of the Foundation’s council is Jarosław Kaczyński), planned to build a 190-metre skyscraper in the centre of Warsaw. Money for the investment was to be provided by Pekao SA, a bank “repolonized” under Law and Justice. Austrian businessman Gerald Birgfellner, a distant relative of Kaczyński, was employed for the project.

When it turned out that the investment would not start, and Kaczyński, instead of paying for his work and expenses, suggested that Birgfellner sue the company, the Austrian started recording his meetings with the head of Law and Justice. One of these recordings was published in January by “Gazeta Wyborcza”, starting a series of what became called “the Kaczynski tapes”.

What went wrong with the investment? In a recording revealed by “Wyborcza”, Kaczyński explains that the investment was halted by municipal activist Jan Śpiewak announcing that “a party was building a skyscraper” and that it was an example of “Asian customs.”

The president of the Law and Justice party decided that the political attack made the situation “untenable.” Additionally, in the event Law and Justice were to lose municipal elections in Warsaw, the company would not get permission to build such a high building in this location in Warsaw.

Some time later, a new thread appeared in the case – the so-called “Kaczynski’s envelope.” The chief of the Law and Justice party urged Birgfellner to pay PLN 100,000 to Fr. Sawicz, who was a member of the council of the Lech Kaczyński Institute. The businessman claims that he ultimately gave PLN 50,000 to the clergyman.

The Austrian reported the matter to the prosecutor’s office, claiming that Kaczynski had committed fraud, as well as a crime against economic activity (Article 296 a. § 1 of the Criminal Code). And yet it is Birgfellner who has been questioned multiple times.

At that time, Jarosław Kaczyński paid a visit to Prosecutor General Zbigniew Ziobro, who, as the Prosecutor General, has access to the case files. But the chief of the Law and Justice party was not called to the prosecutor’s office even once; however, he did file suit against Agora, the publisher of “Gazeta Wyborcza”.

Dates speak for themselves

Birgfellner was first brought in for questioning in the first half of February. Nothing unusual – according to the Code of Criminal Procedure, the prosecutor’s office should issue a decision on whether or not to initiate an investigation within 30 days of notification of a suspected offence. Thus, the legal deadline expired at the end of February 2019. In March 2019, still no decision has been made, but Renata Śpiewak, the prosecutor in charge of the case, was promoted from the regional to the district prosecutor’s office.

“The situation is all the more comical because some prosecutors have been hit with disciplinary charges for exceeding that 30-day deadline. For example, Krzysztof Parchimowicz was charged with such misconduct,” remarks Birgfellner’s attorney, Jacek Dubois, for OKO.press.

During these record nine months, when the public prosecutor’s office was unable to take the decision to initiate proceedings. the Austrian businessman was interviewed seven times, including once in Vienna (through the Austrian public prosecutor’s office). The interrogations lasted more than 50 hours in total.

“I’ve never seen such lengthy proceedings. During that time, all the evidence could have been hidden. Attempts were made to frighten Mr. Birgfellner. During one of the hearings in the prosecutor’s office, three tax officials were waiting in the next room,” remarks attorney Dubois.

Prosecutor Renata Śpiewak also fined Gerard Birgfellner several times for failure to appear, PLN 3,000 for each incident. Birgfellner does not live in Poland and his attorneys had informed the prosecutor’s office in advance that the dates of the summonses were unreasonable. All the fines were later revoked by a court.

“In a situation involving serious charges, the person who claims to be the victim of certain acts is questioned. He is interrogated so many times and so intensely that the question arises as to what is the purpose of the interrogation,” Human Rights Commissioner Adam Bodnar in April.

Kaczyński, who is the central figure in this story, has not been questioned even once.

“In order to interrogate Jarosław Kaczynski, you have to initiate proceedings. In the case of things like those that were recorded on tape, I couldn’t imagine that this wouldn’t happen. But the whole activity of the prosecutor’s office was focused on protecting Mr. Kaczyński from appearing before the judicial authorities and from submitting explanations under criminal responsibility,” comments Jacek Dubois.

Let us recall – on the recordings made by Gerald Birgfellner, we may hear Jarosław Kaczyński saying that he would like to pay for his work and refund his costs, but needs grounds for doing so. But the official client was a subsidiary of Silver – Nuneaton, which was insolvent. He suggests filing suit against Silver as a way of doing this, and promises to testify in court in favour of Birgfellner.

“After all, I don’t want to cheat anyone. I know it was done for us,” says the president of Law and Justice. On many occasions he confirms that he had ordered the work done by Birgfellner, but that work was not paid for.

This is confirmed by 50 documents, including resolutions of the Board and Council of the Silver Foundation, powers of attorney, draft agreements with Bank Pekao SA and other partners, which were submitted to the prosecutor’s office by Birgfellner’s attorneys. In the recorded conversations, Kaczyński himself claims that these documents are “strong arguments” which will convince the court that Silver is liable for payment.

However, they turned out to be not strong enough for the prosecutor’s office.

The workings of the prosecutor’s office

The handling by the prosecutor’s office of “Kaczyński’s tower” shows how dependent it is on the authorities. It is managed by the Prosecutor General, who is at the same time the Minister of Justice and a political partner of a person against whom a serious charge is made.

The chief of the prosecutors is the National Prosecutor, who is appointed by the Prime Minister on the application of the Prosecutor General. Line prosecutors are appointed by the Prosecutor General on the application of the National Prosecutor.

Prosecutors are subject to the Disciplinary Court, whose president and deputy are appointed by the Prosecutor General. Disciplinary cases are ruled on in the second instance by the Supreme Court in a panel of two judges from the Disciplinary Chamber and one juror from the Supreme Court, appointed by the neo-National Council of the Judiciary and the Senate.

After Birgfellner’s first interrogation session, on 10–11 February 2019, the famous meeting between Jarosław Kaczyński and Zbigniew Ziobro took place. Contrary to his custom, the president of the Law and Justice Party did not invite the Minister of Justice and Prosecutor General to Nowogrodzka, but himself paid his visit at the seat of the Ministry of Justice.

These dates must have been completely coincidental – Zbigniew Ziobro publicly assured that “Jarosław Kaczyński did not read the case files concerning Mr Birgfellner.”

More coincidental dates

In April, writing for OKO.press, Prof. Anna Rakowska-Trela from the University of Łódź commented on the modus operandi of the prosecutor’s office: “The investigative activities in this case go beyond not only the boundaries of the law, but also the boundaries of common sense.”

But there was some “sense” in it. The aim of the prosecutor’s office was to avoid a scandal in the runup to elections.

Initiating a formal investigation would mean examining Jarosław Kaczyński as a witness – something that would be unacceptable for Law and Justice. But if the prosecutor’s office decided against initiating proceedings in the prescribed period, that is, until the end of February, or even in April or May, the court could overrule this decision even before the elections. And its reasoning for doing so would be inconvenient for the authorities.

Therefore, the prosecutor’s office issued its decision on 11 October, formally prior to the parliamentary elections on 13 October. But the decision was sent to the complainants almost 10 days later.

The attorneys suggest that there is one more reason why this date may be no accident.

The path lengthened

Birgfeller and his attorneys are, of course, entitled to bring a complaint against the refusal to initiate an investigation, which they intend to do immediately.

However, as it occurred (we do not say whether this is mere coincidence or not) that on 21 February 2019, that is, three weeks after Birgfellner filed his notice with the prosecutor’s office, draft amendments to the Code of Criminal Procedure and other laws were submitted by the government to the Sejm.

The amendments were passed in July, and the legislation entered into force on 5 October 2019. The changes concerned, among others, Articles 55 and 330(2) of the Code of Criminal Procedure, which refer to filing the so-called “subsidiary indictment” (by an injured person).

The previous wording of Art. 55(1), first sentence, was this:

“In the event of a repeated decision to refuse to initiate or to discontinue proceedings in the case referred to in Article 330 § 2, the injured party may, within one month of being served with notification of the decision, file a bill of indictment with the court, enclosing one copy for each defendant and for the prosecutor.”

It now reads:

“In the event of a repeated decision to refuse to initiate or to discontinue proceedings in the case referred to in Article 330 § 2, the injured party may, within one month of being served notice of the decision of the superior prosecutor to uphold the contested decision, file an indictment with the court, enclosing one copy for each defendant and for the prosecutor”.

The previous wording of Art. 330(2) was:

“If the investigating authority still finds no grounds for filing an indictment, it shall again issue a decision to discontinue the proceedings or refuse to initiate them. In such a case, the injured party who has exercised its rights provided for in Article 306(1) and (1a) [these provisions concern complaints – ed.] may file a bill of indictment as provided for in Article 55(1) – about which he shall be instructed.”

This provision now reads: “§ 2. If the authority conducting the proceedings still finds no grounds for filing an indictment, it shall again issue a decision to discontinue the proceedings or refuse to initiate them.”

This decision can only be appealed to the superior prosecutor

“If the contested decision is upheld, the injured party who has twice used the powers provided for in Article 306(1) and (1a) may file a bill of indictment referred to in Article 55(1) – about which he shall be instructed.”

What does this mean?

Previously, the injured party had the right to file a subsidiary indictment if, after filing a complaint, the prosecutor’s office again issued a decision refusing to initiate proceedings.

Currently, an injured party whose complaint has been rejected can only appeal to the superior prosecutor. The possibility of bringing a subsidiary indictment to a court is granted only after another refusal by the prosecutor’s office.

This is a fundamental extension of this path for pursuing justice.

The situation is as follows: It took the prosecutor’s office nine months to make a decision. Now, court proceedings will last another few months. Assuming that the court will overrule the decision not to initiate an investigation, the prosecutor’s office may again, in violation of the law, wait for months to take its next decision.

And if this next decision is also negative, the case will land again in the prosecutor’s office, but at a higher level. This means it could take Gerard Birgfeller two or three years to get his case to court. If he ever does.

Translated by Matthew La Fontaine