Kaczyński above the law. The delicate work of keeping him away from questioning and out of court


Journalist at OKO.press.


The public prosecutor's office has refused to initiate an investigation into the fraud allegedly perpetrated by Kaczynski against Birgfellner. The prosecutor took 259 days, although it should have been 30 by law, questioning the businessman over and over again, and slapping fines on him. What took so long? Because on 5 October, regulations making it possible to seek justice were changed, and on 13 October elections were held.

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


Journalist at OKO.press.



October 22, 2019


Supreme CourtConstitutional TribunalDisciplinary ChamberPolandjudgesdisciplinary proceedingsrule of lawZbigniew ZiobroNational Council of the JudiciaryCourt of Justice of the EUjudicial independenceEuropean CommissionEuropean UnionAndrzej DudaMałgorzata ManowskaCourt of JusticeEuropean Court of Human RightsMinister of JusticeIgor Tuleyadisciplinary systemAdam Bodnarmuzzle lawJarosław KaczyńskiNational Recovery PlanCJEUMateusz MorawieckiCommissioner for Human Rightsneo-judgesCourt of Justice of the European UniondemocracyPrzemysław RadzikWaldemar ŻurekNational Council for Judiciarypresidential electionselectionselections 2023disciplinary commissionercriminal lawJulia PrzyłębskaPiotr SchabKamil Zaradkiewiczmedia freedomharassmentpreliminary rulingsHungarySupreme Administrative Courtelections 2020K 3/21Dagmara Pawełczyk-WoickajudiciaryFirst President of the Supreme CourtŁukasz PiebiakprosecutorsPresidentRecovery FundBeata MorawiecPaweł JuszczyszynProsecutor GeneralMichał Lasotafreedom of expressionMaciej NawackiEuropean Arrest WarrantSejmprosecutionCOVID-19Regional Court in KrakówCriminal ChamberNational ProsecutorConstitutionPrime MinisterMinistry of JusticecourtsMałgorzata GersdorfMarek SafjanEU budgetdisciplinary liability for judgesMaciej FerekOSCEWojciech HermelińskiExtraordinary Control and Public Affairs ChamberIustitiacriminal proceedingsWłodzimierz WróbelVenice Commissionconditionality mechanismAleksander StepkowskiTHEMISLabour and Social Security ChamberStanisław BiernatPiScommission on Russian influenceStanisław PiotrowiczPresident of the Republic of PolandNCJimmunityconditionalityAnna DalkowskaJustice FundcorruptionLaw and JusticeNational Public ProsecutorCouncil of Europefreedom of assemblyKrystian MarkiewiczreformsReczkowicz and Others v. PolandKrzysztof Parchimowiczacting first president of the Supreme Court2017policeSenateAndrzej Zollmedia independenceSLAPPdefamationStrategic Lawsuits Against Public ParticipationLGBTJustice Defence Committee – KOSEwa ŁętowskaDidier ReyndersFreedom HouseAmsterdam District CourtMay 10 2020 electionsXero Flor w Polsce Sp. z o.o. v. PolandOrdo IurisPresident of PolandAndrzej StępkaBroda and Bojara v PolandSylwia Gregorczyk-AbramPiotr GąciarekJarosław WyrembakPM Mateusz MorawieckiArticle 7Next Generation EUConstitutional Tribunal PresidentUrsula von der LeyenLex DudaTVPmediaLex Super OmniaProfessional Liability ChamberreformJarosław DudziczK 7/21National Reconstruction PlansuspensionparliamentChamber of Professional LiabilityEAWArticle 6 ECHRP 7/20Supreme Court PresidentLech GarlickiMichał WawrykiewiczabortionPiotr PrusinowskiNational Electoral Commissionelectoral codeJanusz NiemcewiczTeresa Dębowska-RomanowskaStanisław RymarMałgorzata Pyziak- SzafnickaKazimierz DziałochaBogdan ŚwięczkowskiNetherlandsAndrzej MączyńskiMarek MazurkiewiczvetoStefan JaworskiMirosław GranatOLAFBiruta Lewaszkiewicz-PetrykowskaViktor OrbanJózef IwulskiMaciej MiteraSLAPPsjudcial independenceWojciech ŁączkowskiAdam JamrózPATFoxFerdynand RymarzKonrad WytrykowskiRafał Puchalskismear campaignmilestonesKrakówMarzanna Piekarska-Drążekstate of emergencyUkraineelectoral processBelaruscourt presidentsAdam SynakiewiczXero Flor v. PolandAstradsson v Icelandright to fair trialEdyta BarańskaJoanna Hetnarowicz-SikoraCentral Anti-Corruption BureauJakub IwaniecsurveillancePegasusDariusz DrajewiczJoanna Misztal-KoneckaCivil ChamberK 6/21Wojciech MaczugaSzymon Szynkowski vel SękDariusz ZawistowskiOKO.presselections integrityelections fairnessMarek ZubikBohdan ZdziennickiMirosław WyrzykowskiSławomira Wronkowska-JaśkiewiczPiotr TulejaJerzy StępieńAndrzej RzeplińskitransparencyMariusz KamińskiMaciej Taborowskiinsulting religious feelingsPaweł Filipekpublic mediaMariusz MuszyńskiKrystyna PawłowiczlexTuskcourt changesMarek PietruszyńskiMichał LaskowskiSupreme Audit Officeabuse of state resourcesLaw on the NCJEuropean ParliamentJarosław GowincoronavirusRussiaZuzanna Rudzińska-BluszczFree Courts11 January March in WarsawCCBEPiebiak gatehuman rightsrecommendationC-791/19Human Rights CommissionerMarcin WarchołLGBT ideology free zonesreportEuropean Association of JudgesPiotr Pszczółkowskiretirement agedecommunizationGeneral Assembly of the Supreme Court Judgesintimidation of dissentersdemocratic backslidingpublic opinion pollZiobroEU law primacyMarian BanaśThe Council of Bars and Law Societies of Europecriminal codeBelgiumlex NGOEwa Wrzosekcivil societytransferAdam Tomczyńskimedia pluralismBohdan Bieniek#RecoveryFilesFrans TimmermansLIBE Committeerepairing the rule of lawUS Department of StateMarcin KrajewskiKarolina Miklaszewska2018NGOFull-Scale Election Observation MissionODIHRNations in TransitStanisław ZabłockiPetros TovmasyanJerzy KwaśniewskiPiotr MazurekGrzegorz PudaNational Recovery Plan Monitoring CommitteeWiesław KozielewiczChamber of Extraordinary Control and Public AffairsMałgorzata Dobiecka-WoźniakCouncil of the EURafał LisakMichał DworczykWojciech Sadurskidefamatory statementsRome StatuteInternational Criminal CourtC-619/18Rights and Values Programmejudgepress releaseAntykastalex WoślegislationCourt of Appeal in KrakówPutinismKaczyńskiPaulina AslanowiczJarosław MatrasMałgorzata Wąsek-Wiaderekct on the Protection of the PopulatioWorld Justice Project awardStanisław ZdunIrena BochniakKrystyna Morawa-FryźlewiczŁukasz BilińskiIvan MischenkoJoanna Kołodziej-MichałowiczMonika FrąckowiakArkadiusz CichockiEmilia SzmydtTomasz SzmydtE-mail scandalAndrzej SkowronKasta/AntykastaKatarzyna Chmuraadvocate generalGrzegorz FurmankiewiczMarek JaskulskiEwa ŁąpińskaZbigniew ŁupinaPaweł StyrnaSwieczkowskiDworczyk leaksMałgorzata FroncHater ScandalAleksandra RutkowskaGeneral Court of the EUArkadiusz RadwanLech WałęsaWałęsa v. Polandright to an independent and impartial tribunal established by lawpilot-judgmentDonald Tusk governmentRafał WojciechowskiDobrochna Bach-Goleckalex RaczkowskiPiotr Raczkowskithe Spy ActdisinformationCT Presidentfundamental rightsNational Broadcasting Councilelection fairnessequal treatmentcivil lawMarcin MatczakDariusz KornelukNational School of Judiciary and Public Prosecution (KSSiP)codification commissiondelegationsWatchdog PolskaDariusz BarskiLasotapopulismState TribunalRadosław BaszukAction PlanJustice MinistryVěra JourováDonald Tuskjustice system reformAnti-SLAPP Directiveinsultgag lawsuitsstrategic investmentinvestmentlustrationJakub KwiecińskidiscriminationAct on the Supreme Courtelectoral commissionsEuropean Court of HuKrzysztof RączkaPoznańTomasz Koszewskitest of independenceSebastian MazurekElżbieta Jabłońska-MalikJoanna Scheuring-WielgusoppositionThe National Centre for Research and DevelopmentAdam Gendźwiłłtransitional justiceDariusz DończykKoan LenaertsKarol WeitzZbigniew KapińskiAnna GłowackaCourt of Appeal in WarsawOsiatyński'a ArchiveEUUS State DepartmentAssessment Actenvironmentextraordinary commissionWhite PaperKaspryszyn v PolandNCR&DNCBiREuropean Anti-Fraud Office OLAFJustyna WydrzyńskaAgnieszka Brygidyr-DoroszJoanna KnobelCrimes of espionageJędrzej Dessoulavy-ŚliwińskiMarek Piertuszyńskihate speechhate crimesmedia taxadvertising taxmediabezwyboruJacek KurskiKESMAIndex.huGrzęda v PolandŻurek v PolandPrzemysław CzarnekJacek CzaputowiczMarcin RomanowskiElżbieta KarskaPrzemysła Radzikmedia lawRafał TrzaskowskiSobczyńska and Others v PolandTelex.huJelenForum shoppingFirst President of the Suprme CourtEuropean Economic and Social CommitteeSebastian KaletaOrganization of Security and Co-operation in EuropeC-156/21C-157/21foreign agents lawArticle 2Rome IIJózsef SzájerChamber of Extraordinary VerificationKlubrádióequalityGazeta WyborczaLGBT free zonesPollitykaBrussels Ilegislative practiceENAZbigniew BoniekAK judgmentautocratizationMultiannual Financial FrameworkOpenbaar MinisterieRegional Court in Amsterdamabortion rulingArticle 10 ECHRprotestsinterim measuresLeszek MazurIrena MajcherAmsterdamLMmutual trustthe Regional Court in Warsawpublic broadcasterUnited NationsForum Współpracy Sędziówthe NetherlandsDenmarkact on misdemeanoursCivil Service ActParliamentary Assembly of the Council of EuropeNorwegian Ministry of Foreign AffairsNorwegian fundsNorwayKraśnikOmbudsmanKarlsruheAusl 301 AR 104/19SwedenFinlandMariusz KrasońC-487/19GermanyCelmerC354/20 PPUC412/20 PPUIrelandMarek AstLSOright to protestSławomir JęksaWiktor JoachimkowskiRoman Giertychtrans-Atlantic valuesMichał WośMinistry of FinancelawyersMirosław Wróblewskirepressive actborderprimacyEU treatiesAgnieszka Niklas-BibikSłupsk Regional CourtMaciej RutkiewiczAct of 20 December 2019Amnesty InternationalJacek SasinEvgeni TanchevKochenovPechPaulina Kieszkowska-KnapikMaria Ejchart-DuboisAgreement for the Rule of LawPorozumienie dla PraworządnościAct sanitising the judiciaryFreedom in the WorldECJErnest BejdaThe First President of the Supreme CourtMaciej CzajkaMariusz JałoszewskiŁukasz RadkepolexitFrackowiakDolińska-Ficek and Ozimek v PolandRzeszówKoen LenaertsharrassmentOlimpia Barańska-Małuszeinfringment actionHudocPKWKonrad SzymańskiPiotr BogdanowiczPiotr BurasLeon KieresIpsosEU valuesNational Prosecutor’s OfficeBogdan ŚwiączkowskiDisicplinary ChamberTribunal of StateOlsztyn courtPrzemysła CzarnekEducation MinisterENCJauthoritarian equilibriumArticle 258postal voteTVNjournalistslexTVNEwa MaciejewskaGerard BirgfellerPolish mediaAlina CzubieniakSimpson judgmentpostal vote billclientelismoligarchic systemEuropean Public Prosecutor's Officeresolution of 23 January 2020Polish National FoundationLux VeritatisMałgorzata BednarekPiotr WawrzykIsrael