Today I can report on the successful conclusion of a case concerning the charge of committing a so-called official crime under Art. 231 of the Criminal Code (abuse of authority by a public official or failure to perform an official duty).
Art. 231 of the Criminal Code
This provision penalizes a public official who, by exceeding their authority or failing to perform their duty, acts to the detriment of the public or private interest. It is one of the most commonly charged official crimes in Poland, but also one of the most frequently misapplied.
Key issues in this case:
- The prosecution must prove not only that the official acted beyond their authority or failed to perform a duty, but also that this action (or omission) was directed at harming a specific public or private interest.
- The “acting to the detriment” element requires proof of actual or potential harm, not merely a procedural irregularity.
- The official’s subjective intent is crucial – negligent breach of duty, while potentially subject to disciplinary proceedings, does not automatically constitute a criminal offense under Art. 231.
The court found that while the defendant may have made procedural errors in the exercise of their duties, the prosecution failed to prove the essential elements of the offense: intentional action directed at harming a specific interest. The acquittal confirms that Art. 231 should not be used as a catch-all provision to criminalize every mistake or error of judgment by a public official.
This case is particularly important in the current climate where prosecutors increasingly attempt to use Art. 231 to address what are essentially administrative or disciplinary matters.
Paweł Osiński
Attorney specializing in white-collar criminal law and defense of public officials