Law and Justice’s Concentrated Power over Polish Prosecutors
On 8 July 2019, prosecutor Mariusz Krasoń was relocated from the Regional Prosecutor’s Office in Cracow, Poland to the District Prosecutor’s Office in Wrocław-Krzyki, almost 300 km away, and two levels lower in the hierarchy. The Justice Defence Committee (KOS) indicates that in May 2019, prosecutor Krasoń initiated a resolution of the Assembly of the Regional Prosecutor’s Office in Cracow.
This resolution highlighted, among other things, restrictions on the independence of prosecutors under the Law and Justice (PiS) government. It was followed by Krasoń’s forced transfer to a remote and lower-level prosecutor’s office.
The Law on the Public Prosecutor’s Office of 28 January 2016, passed by the votes of MPs from Law and Justice, concentrated power over the prosecutor’s office in the hands of one person – the Prosecutor General, who is also the Minister of Justice in the PiS government.
Moreover, numerous legal changes have created additional tools for exerting pressure on subordinate prosecutors. The extensive interference of the Prosecutor General in ongoing pre-trial proceedings (including strengthening the authority of the head of the prosecutor’s office to transfer cases) makes it possible to prosecute people the authorities find inconvenient and to discontinue proceedings against those who support the authorities.
These legal changes have facilitated the demotion of qualified prosecutors with extensive professional experience from top prosecutorial positions. They have been replaced by prosecutors often from the lowest level.
In this way, nearly 1/3 of the prosecutors of the former General Prosecutor’s Office and the former appellate prosecutor’s offices were demoted.
The mechanism of rewards and promotions is another tool for piling pressure on prosecutors. It is now possible to promote a prosecutor from the lowest level of the prosecutorial service directly to the highest level.
In addition to these changes, disciplinary proceedings, also under the control of the Minister of Justice acting as the Prosecutor General, are a tool for pressure from the top.
The Prosecutor General appoints the President and Deputy President of the Disciplinary Court of the Prosecutor General, as well as the disciplinary spokespeople, who function as prosecutors in disciplinary proceedings against prosecutors. The Prosecutor General may also request that an investigation be initiated against a particular prosecutor.
These enhanced powers are used to punish disobedient prosecutors and to influence their decisions. It may, therefore, raise concerns about the reliability and independence of pre-trial and judicial proceedings in Poland’s courts.
In addition, the final stage of the prosecutors’ disciplinary proceedings, those conducted before the Disciplinary Chamber of the Supreme Court, should be assessed critically.
This Chamber currently consists only of newly appointed judges, recommended by the new National Council of the Judiciary, itself dominated by nominees of the ruling party and appointed by President Andrzej Duda. Therefore, the Disciplinary Chamber’s independence is a questionable matter at best.
In recent years, the system of disciplinary punishment of judges has also changed. It was made highly dependent on the Minister of Justice/Prosecutor General. It enables disciplinary proceedings against judges and their harassment for disobedience towards the authorities and criticism of actions damaging the rule of law.
On 10 October 2019, the European Commission elected to refer Poland to the Court of Justice of the EU regarding the new disciplinary regime for Polish judges, requesting an expedited procedure.
[by Karolina Wąsowska, FOR]
Full analysis of the disciplinary tools of the prosecution in Poland available here (in Polish)