Towergate: Austrian developer's testimony inconsistent

Reports coming from the public prosecutor’s office indicate that the Austrian developer alleging he was deceived by ruling party leader Jarosław Kaczyński will find it difficult to prove his claims.

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According to the “Rzeczpospolita” daily, Gerald Birgfellner, the Austrian businessman who has alleged that Jarosław Kaczyński committed the crime of deception by refusing to pay him for work that the ruling party leader ordered, is unable to show how much of the EUR 1.3 mln of the money he is claiming is still owed to him directly and how much for work that the Austrian had contracted to others. Despite demands from the prosecutor to detail the costs, Mr Birgfellner has failed to show the bank transfers and invoices that would match the amount being claimed. No evidence has been presented of claims made on Mr Birgfellner by those who he claims were contracted to carry out work for him.

The testimony is unclear

The Austrian has testified that he worked for 14 months on a real estate project for a company owned by the Lech Kaczyński foundation. That company owns the land on which two tower blocks were to be built, housing the foundation’s HQ, a conference centre, a hotel, shops and living space.

According to the testimony, Mr Birgfellner set up a company and contracted an architect to progress the project. He also prepared a project timetable and budget. With the help of legal firm Baker McKenzie, drafts of contracts needed to forward the scheme were also prepared. However, Mr Birgfellner has been unable to show how much of the costs related to the work carried out by others and how much was owed to him and has failed to show the work done on the architectural design.

Roman Giertych, the attorney for the Austrian developer, claims that all the documentation is in the possession of the prosecutors and that he will only provide that information to the media if he is allowed to do so by the prosecutor’s office.

If the EUR 1.3 mln being claimed was for Mr Birgfellner’s fees only, that would be extraordinarily high, essentially amounting to EUR 100,000 per month for a project which did not even have planning permission. In fact, it was because of the likely inability to obtain that planning permission that Mr Kaczyński and the company that owns the land withdrew from the venture.

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No evidence of deception

The prosecutors, therefore, cannot see any evidence of any deception. The offence of deception can only be committed if it can be proved that someone had the intent to deceive. But in this case, Mr Kaczyński and the company that owned the land clearly wanted to scope for a possible lucrative real estate deal but withdrew for their own reasons that had nothing to do with Mr Birgfellner.

In fact, it was Mr Birgfellner who chose to stop negotiating with Mr Kaczyński for his remuneration four months in advance of the final but expected decision by the Warsaw local authority not to grant permission for the type of buildings the company wanted to put up.

Seeking justice in Austria?

Mr Giertych, who has been an attorney in cases involving opposition politicians, has threatened that if the Polish public prosecutors refuse to charge Mr Kaczyński then his client will file charges with the Austrian prosecutors. But his chances of that avenue proving fruitful are low as the Austrian penal code refers to crimes committed on Austrian territory only. And in legal terms, the company that claims it is owed money is a Polish one rather than an Austrian one.

The only way for the Austrian legal system to be involved is if the Polish authorities asked it for assistance and wanted to transfer the case involving an Austrian citizen to that country.

Why not a civil action?

Many are puzzled why Mr Birgfellner is not pursuing his claim in a civil court. Even if he was working without a contract, if he could prove that he was instructed to carry out specific work and prove that it was carried out and present evidence of the costs incurred, his chances of winning would be considerable. Mr Giertych has in fact hinted that his client may choose to sell his claim to someone else to pursue the debt. The motives of the entity choosing to acquire such a claim would be interesting. Would it not be tantamount to the Austrian developer being “paid off” for having caused a scandal damaging to the ruling party leader?