A new Iron Curtain placed by Wroclaw prosecuters seperate a mother and daughter.

 

Video:

Why does Poland detain so many people without trial?

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The Kmetko Foundation invites you to the launch of their campaign to build a more competitive business environment in Europe

 

The launch meeting will be held

9 July 2014 

16.00 hours to 17.30 hours

 

Press Club Brussels Europe

95 rue Froissart, B-1040 Brussels,

 

and will be followed by a networking reception.

 

Our first priority for reform is to bring the application of European law in all member states into line with the standards demanded by the

European Charter of Fundamental Rights.

For Poland, this means administrative reform in respect of the judiciary,

the courts and the state prosecutors' offices, so that commercial cases are heard within a reasonable period of time, and that any pre-trial detentions

are not only kept to a minimum, but also applied fairly in order to respect

EU citizens' rights.

 

Speaking at the meeting will be :

  • Denis Macshane, former UK Minister for Europe
  • John Borrell, author of "The White Lake"
  • Sandra Natkaniec
  • Andreas Zumschlinge, Attorney at Law, Berlin
  • Marcin KondrackiAttorney at Law, Warsaw

The discussion will be moderated by James Wilson, the Founding Director of the International Foundation for Better Governance

 

The meeting will be followed by a networking reception, and

Mr Borrell will sign copies of his book "The White Lake”.

 

Space is limited and prior registrationon: http://www.planetreg.com/kmetko is essential

 

http://www.kmetkofoundation.org/event/content.html

Published in Articles
Friday, 18 July 2014 07:27

One Man Against a Monolith

One Man Against a Monolith
This is the story of struggle and survival in post-communist Europe. It is about one
man, Marek Kmetko. In England or France or Italy or Germany or the United States he
would be hailed as a business hero. With only his wits, his boundless energy, and his
strength in bulldozing through obstacles he has built up business after business that has
helped make Poland, his native country, richer.
He comes from Wroclaw which before 1939 was pait ofthe German Reich and
known as Breslaw.
Poles were not allowed economic or democratic freedoms under the Kaiser or the
Nazis. They were allowed to become bureaucrats and work in the police and judicial system
because their German overlords wanted to ensure that the Poles were kept forever subjugated
and respectful to hierarchy and to authority.
Kmetko, born in I952, grew up under the oppression of communist politics. In this
era, Poland was run by Poles but on behalf oftheir ultimate masters in the Kremlin. The
same bureaucracy oftax collectors, police and obedient judges and journalists made sure that
the Poles of Wroclaw did as they were told.
The arrival of Polish Solidarity — the mass trade union and national democratic
movement, NSZZ Solidarnosc - in I980 when Marek Kmetko was still in his twenties
changed everything. There were new openings but also new brutalities. The local
bureaucracy did not know where their future was to be found.
Quickly it became clear in the 1980s that communism was not going to last much
longer. Networks of economic actors interlinked with the local bureaucracy, police, media
and state apparatus were created.
Marek was outside this charmed circle getting ready for the end of communism. He
was seeking to create small business possibilities for himself and his wife. Market gardening,
refuse disposal, some small house building, anything that was possible in the dying days of
communism.
When at the end of 1989 a democratic parliament was elected and Poland had
sloughed off the outward appearances of communist bureaucracy to start its progress to the
community of democratic European nations in NATO and the European Union Marek
Kmetko assumed that his dynamic entrepreneurial energy would find not just a place but
some recognition and reward for turning Poland into a modern market economy.
Market economies are made by men not saints. They are about the hunger to create
and simultaneously make money not as an end in itself but as proof of achievement. The
author wants to see his book published, the pop star wants to see the stadium full of his fans,
the politician wants to get as many votes as possible, the editor wants as many readers as
exist and the businessman wants to fill his bank account with money. And to get to the top
corners are cut, risks are taken, and regulations are ingnored. In the words of the great British
entrepreneur, Sir Richard Branson, the founder of the Virgin empire “I have never seen a rule
books which I have not broken.” Critics of Branson point to his early days when allegations
abounded about tax irregularities. Whatever the truth the British authorities preferred to seehis

dynamism and energy create jobs and wealth in Britain, first and foremost, and come to
agreements about tax and other payments in due course.
There is no doubt that Marek Kmetko was a rule breaker. He borrowed money and
bought a fleet of three hundred trucks in Germany and rode them like a conquering convoy of
the new single market Europe into Poland in order to transport goods backwards and
forwards between his native country and the rest of Europe.
He installed an office in Berlin but found quickly that back home in Poland, as in
southern Italy, unless the right payments were made, the right contacts were organised, the
right politicians and members of the judicial and tax bureaucracy were entertained and looked
after things could go wrong.
He was not confident in the new government of Poland even though it had illustrious
names from the era of solidarity in its ranks and at its head. These were important figures in
Polish history but they too had to make historic compromises within the state and with the
bureaucrats who under German rule or communist rule or now capitalist rule knew how to
keep their power and make sure they and their families were adequately rewarded.
Many obstacles were put in his place, accusations made and even moments of
detention and the despair of being placed in prison awaiting trials faced Marek Kmetko.
But he refused to give up. Yes he wanted to make money and yes he felt as many
successful businessmen who have made a good profit feel. He knew how to make money and
overcome obstacles.
His next venture was to open an employment agency. These are commonplace
especially in Great Britain and the United States so that one firm becomes the employer of
workers who are then allocated to smaller businesses who cease to bother themselves with
payroll bureaucracy or being responsible for the tax and social insurance ofthe employees.
One may question whether this is a good practice but it is one Tony Blair certainly
supported as Britain’s Labour Prime Minister when he fought to resist any rules from Europe
that might lessen the ability of employment and outsourcing agencies in Britain to carry on
their business. Rightly or wrongly, the ten years of Blair’s premiership in Britain saw the
longest period of economic growth and job creation in Britain’s post-war history. Why
should Poland be any different?
However, for the bureaucrat wanting to catch out an entrepreneur the fact that Kmetko
had his head office registered in Berlin and was living there with the full knowledge,
permission and approval ofthe German authorities was a suspicion in itself. In Britain, just
to stay with that parallel, there are plenty of American and European firms headquartered far
away from England which nonetheless are encouraged to carry out economic activity inside
the UK and are treated on the whole with fairness and the same respect that any British firm
would enjoy.
Instead of celebrating this dynamic entrepreneur the Polish judicial and tax authorities
in Wroclaw kept accusing him of breaking the law. They insisted that he was guilty of
money laundering. This because the money he earned from the hundreds of employees he
sent to work for different firms in Poland was put into a Polish bank and then transferred to a
2German bank. Kmetko had received serious threats of violence and even death from his
rivals and people who did not like his refusal to operate within the bureaucratic tax and
political system of networks in south-west Poland. He decided to live in Germany just to
have that little bit of extra protection. After all, in the 1990s he had befriended politicians
and TV journalists who had died under mysterious circumstances without any explanation.
He remembered from his brief time working with Polish communist security police just how
vicious and violent they could be if given orders from above and told their actions would be
covered by superiors.
Better not to take the risk and not place himself too obviously within the reach of any
enemies he might have in Poland.
But still the Polish tax police, which is notorious in Poland for taking a cut of 8 to
10% of any money it obtains from those found guilty of not paying their taxes, kept going for
him.
They opened one investigation accusing his wife of money laundering but in truth this
was just a political attack against him.
In September 2010 the Wroclaw Prosecutor’s Office asked the German police to
investigate Mr and Mrs Kmetko and their schoolgirl daughter for alleged money laundering.
The German police did as requested and ordered searches of all the Kmetko accounts
and paper held at the head office in Berlin. But they found nothing and wrote saying the case
had simply been discontinued. The Wroclaw State Prosecutor also dropped the case.
One might have thought that would have been the end ofthe matter. But inside the
Polish state system in Wroclaw there were officials who had Kmetko in their sights. There is
no explanation of why this should be the case. He is a robust corner-cutting businessman
seeking new ventures and like any businessman arranging his affairs so as to pay as little tax
as possible. But he knew that to operate in Poland he had to be within the law. As the
Wroclaw lawyer, Zbigniew Cieslak wrote, “the allegations had been orchestrated” against
Kmetko using communist era tax legislation of I966. The tax and prosecution authorities had
not obeyed the law, they had not sent the information as the law stipulated within the required
time to Kmetko saying what he owed and how he might pay it.
The highly respected law firm of Witold Modzelewski told Kmetko very clearly that
“he should not acknowledge the decision of the Wroclaw tax office as the decision has no
legal, nor administrative grounds. Should, however, the tax office be persistent in this matter,
it ought to present evidence other than orchestrated so far, that is tangible and solid.”
And as the Modzelewski law firm stated, “further illegal persistence” of the Wroclaw
tax office will only increase the damage caused to the firm.
So here by the start of 2013 Mr Kmetko and his firm based in Berlin had been
investigated by the Polish authorities and cleared. They had been investigated by the Berlin
judicial authorities and cleared. They had been told at the highest legal authority that there
was nothing that could be laid as a charge against them and on the contrary it was the Polish
Wroclaw tax office that had “orchestrated” false allegations against them.
3All of this over the years had cost Kmetko a great deal of money running into tens of
millions of euros, hundreds of millions of Zlotys. Like any aggrieved businessman who felt
the state was trying to force him out of business and that the tax police were behaving
illegally as they searched to get their share of any money that might be recovered he was
angry and said that the Polish state should compensate him. He was also bitter at how so
many politicians at a senior level had allowed this state of affairs to continue.
Every organisation, like the Council of Europe or Transparency International that has
investigated the Polish tax police system has agreed that it acts beyond the rules of normal
European Union law and order. Businessmen can be held in preventive detention for months
at a time without any charges laid so that their businesses are utterly destroyed while the
executives are rotting in prison. The object is very clear to force money out of businesses
whether legally or not and to ensure that the tax police get their own private cut.
There are certainly many businesses and individuals not paying all their tax in Poland
as they should but that is commonplace in other countries. But to the west of Poland it is not
a knee-j erk reflex action to throw such men into prison, close down their businesses so
neither they nor the state nor the tax police get any benefit at all when after months and
months the case is closed often without any judicial proceedings or convictions.
The Wroclaw authorities continued to insist to their colleagues in Berlin that improper
money laundering was taking place. But the accounts examined in German bank accounts
simply did not provide any evidence to that effect. He was a successful businessman and he
was being paid for the employees he was sending on an agency basis to many different firms
that required flexible employment contracts in Wroclaw and other towns in Poland.
The latest accusation was that Mr Kmetko and his Berlin holding company, K.u.K.
had failed to pay the social insurance contributions for the workers he had sent out to be
employed. The Polish authorities claimed he owed 62 million Zlotys — about €l 5 million.
There is some dispute as to whether the holding company in Berlin or the firms the workers
were being employed by in Poland should pay this money and there is little doubt that as with
much bigger companies like Amazon and Google which seek to avoid paying any tax on their
operations in the UK and other European countries Kmetko was never, like any businessman,
going to be in a big hurry to pay any outstanding taxes or social charges.
Nonetheless he made clear that he was willing to pay any owed amounts after
negotiation between the relevant authorities including the ZUS, the Polish National Insurance
system and his company. The office of the Polish Prime Minister, Donald Tusk, wrote early
in 2014 confirming that this offer had been received.
But this made no difference to the Wroclaw tax police and prosecuting authorities
who moved dramatically against Kmetko. They raided all his offices in Wroclaw and
elsewhere in Poland and arrested key executives they could lay their hands on there. Mr
Kmetko himself had prudently decided to stay living outside the reach of his enemies in
Poland and there was no ground for any warrant that could involve his arrest or detention and
extradition back to Poland. The companies’ operations came to a standstill as the managers
were held over Christmas and the New Year into the spring of 2014.
A lawyer from Berlin was despatched and a journalist from Brussels where there was
growing concern in European circles about the harassment of this Polish businessman. They
4arrived in Wroclaw but were not allowed to meet with those detained and were treated with
scant courtesy as foreigners by the Wroclaw prosecuting authorities even though the Berlin
lawyer comes from a distinguished German legal firm. This could be put down to bad
manners and a failure to observe the norms of legal operations within the European Union.
But the prosecution authorities in Wroclaw also seem to be bullies. One of the women they
arrested late in 2013 is Dagmara Natkaniec. She lives in Berlin with her fourteen year old
daughter, Sandra, who goes to a local German school. She works for Mr Kmetko but has no
executive responsibility or knowledge of his operations in Poland. Nonetheless she was
detained and her daughter has been without a mother for several months. She is willing to
post bail and report to the relevant police authorities and return to her duties as a mother but
the Wroclaw Prosecutor refuses this humanitarian gesture.
This has to be set in a wider context of reports coming in from many different sources
in Poland about the behaviour of the tax police and their denial of the normal rules of natural
justice. The New Zealand writer, John Borrell, who has been working as a businessman near
Gdansk has written a book, “The White Lake” which sets out many examples and there has
even been a motion picture film made exposing the Polish prosecution and tax police
authorities and how their practices and way ofthinking have changed little since the
communist era.
This is an unfinished story and the newly elected European Parliament will be asked
to look into the Kmetko case. There have been reports in international business magazines
and a very successful website set up which exposes how he has been abused and mistreated.
Now we will see what the next stages of this story tum out to be. One thing is certain, that
having survived the pressure of communist bureaucracy and then some of the more corrupt
and disreputable political-bureaucratic practices that were on display in Poland in the first
period after the end of communism in the 1990s Mr Kmetko is determined not to give in.
There is a wider interest at stake. The whole ofthe rest of Europe needs to see
Poland’s economy flourish and grow. Millions of Poles had to seek work in western
European countries and their arrival en masse because the business atmosphere in their own
country is so hostile to dynamic entrepreneurs has provoked great tension and resentment in
other EU member states whose citizens object to so many foreigners arriving and flooding the
labour market with cheaper workers. This has given rise to what the German Finance
Minister calls “fascism” in France and to a new xenophobic and anti-European political
movement in Britain that may yet succeed in organising a referendum which will take the UK
out of the EU.
The Polish authorities need to ensure that Poland stops being seen as the enemy of its
entrepreneurs. Of course taxes and social insurance must be paid but these are matters for
negotiation not for closing down whole businesses just in order to allow the tax police tolrake
in extra money that stays in their hands and isn’t given to the Polish people for genera

improvement of the quality of life.

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