Towergate: a threat to ruling party leader’s image

The concerted campaign by pro-opposition media threatens the image of the ruling Law and Justice (PiS) leader Jarosław Kaczyński as it attempts to challenge his integrity. It is this aspect rather than any legal threats which will be most worrying to him and his party.

The tapes of the conversation from July 27, 2018, published on Monday by “Gazeta Wyborcza”, concern the attempt to build a 190 m high office building on a plot of land owned by a company run by associates of Mr Kaczyński.

The meeting was attended by the PiS leader Jarosław Kaczyński and Gerald Birgfellner, a real-estate developer who is married to a distant member of Kaczyński's family. The parties were trying to find a solution which would have enabled the Austrian to get paid (EUR 1.3 million) for work which had already been done on the project.

Legal implications

“Gazeta Wyborcza” and the opposition claim that Mr Kaczyński has broken laws on party financing, duties of a member of parliament as well as having behaved unethically towards the Austrian businessman.

The allegation of fraud having been committed was submitted at the Warsaw prosecutor's office by Birgfellner's attorneys, Jacek Dubois and Roman Giertych. They claim that Mr Kaczyński deceived the Austrian.

It may prove difficult to prove that Mr Kaczyński intended to mislead Mr Birfgellner and that he wanted to benefit materially from it. Without such proof there can be no conviction.

Civil liability is another route. During the conversation with Mr Birgfellner, Jarosław Kaczyński says that the work had been done for "us", meaning the company which owned the land. However, Mr Kaczyński has no formal basis whatsoever to conduct the company's business. He is only a member of the board of the Lech Kaczyński Foundation, which is the majority shareholder of the company that owns the land.

If Mr Birgfellner can prove that Mr Kaczyński gave him instructions on behalf of the company, then its board could confirm the instructions given by Mr Kaczyński and thus take responsibility for carrying them out upon itself. Only if it does not do so, then, Birgfellner could demand that the PiS leader make good the damage incurred as a result of his actions.

The opposition and the newspaper which published the tapes also allege that a violation of the law on the discharge of MPs duties has taken place. The legislation stipulates that MPs are obliged to disclose any gains in a register. Apart from donations and trips abroad paid for by third persons, MPs should also include information about membership of a foundation's or commercial company's management board, even if they are serving on a pro-publico bono basis.

The newspaper claims that Mr Kaczyński attended an extraordinary shareholders' meeting of the company which owns the land in January. This information does not feature in the register of the MPs interests, despite the fact that he should have entered it by March 2018. The law does not, however, constitute an obstacle in running a business or representing other entities, unless the MP uses state or municipal property with that regard.

Claims have also been made that the PiS leader has violated provisions of the law on the financing of political parties which make it illegal for parties to conduct commercial activities Based on the information available, there is no link between Mr Kaczyński's actions and direct involvement of the party. The fact that Mr Kaczyński represented a company in some capacity and that other ruling party members might have been involved is not enough. In each of these roles, they appear as natural persons, not as party members or entities.

The irony may turn out to be that the only crime committed was by the Austrian developer who recorded a private conversation without permission. The ruling party PiS has pointed out that unlike the previous Civic Platform government they have not attempted to use security services to seize the recordings, as was done back in 2016 when a group of waiters recorded conversations involving top state officials in two top Warsaw restaurants. Nevertheless, it is possible for Mr Kaczyński to report a crime here.

Image problems

It is most likely that the Austrian businessman will seek redress in the courts and appearing in court will be politically awkward for the PiS leader. He will have to explain his involvement in the planned construction of the office buildings and talk about the backdrop of his actions on behalf of the company under oath. The Austrian has chosen high profile media savvy lawyers who have been working with opposition politicians.

Another angle which Mr Kaczyński does not welcome is that of being painted as a wealthy man just because he sits on a foundation’s board and has considerable influence. Not everyone understands that members of Boards of companies do not get dividends nor are they in any way the owners of a foundation.