Those who expect a swift reckoning for the representatives of the PiS government may face a severe disappointment. The case of Marcin Romanowski is just another indication of the difficulties faced by Donald Tusk’s administration.

For several days, there has been a legal dispute regarding the arrest and indictment of the former Deputy Minister of Justice. The charges are related to the Justice Fund scandal. The Sejm agreed to Romanowski’s arrest, indictment, and detention.

The National Prosecutor’s Office, after detaining the Sovereign Poland politician, filed charges against him and requested his detention from the District Court for Warsaw-Mokotów. However, the court refused, citing that Romanowski is protected by a second immunity related to his status as a delegate to the Parliamentary Assembly of the Council of Europe, which had not been revoked.

The National Prosecutor’s Office is considering appealing this decision to the district court. The most serious legal authorities are now debating whether Romanowski has immunity from the Parliamentary Assembly of the Council of Europe. Some argue that he does not, as immunity only applies when a delegate is performing actual work for the Assembly. Others believe that the immunity has broad application and that without the consent of the Parliamentary Assembly of the Council of Europe, Romanowski could not have been detained and charged. They argue that this action was ineffective.

This matter impacts the image of the government, the National Prosecutor’s Office, and the Prosecutor General and Minister of Justice Adam Bodnar. Much will depend on the outcome of this case.

The investigation into the Justice Fund scandal is a priority. It involves the most senior politicians of Sovereign Poland, a coalition partner of PiS, and could even implicate Zbigniew Ziobro himself. Therefore, the ongoing developments in this investigation have been heating up public and political opinion for months.

This is the first scandal of the previous government in which the prosecution, under new leadership, has begun to file criminal charges. Besides Romanowski, the Sejm also lifted the immunity of the former Deputy Minister of Justice Michał Woś, who faces charges related to the purchase of Pegasus software with Justice Fund resources.

Holding PiS accountable for scandals is one of the promises of the ruling Coalition for October 15. There is significant pressure within the government for the prosecution to bring charges against more politicians from the previous administration. These expectations are also shared by the electorate of the entire ruling coalition. According to an Ipsos survey for OKO.press and TOK FM, 55% of respondents agree that “in the framework of decisive accountability for the PiS government, as many people as possible who worked in public institutions between 2016-2023 should be punished and replaced,” while 31% disagree. Among the KO electorate, 92% agree, among the Left 86%, and among the Third Way 85%.

There are numerous scandals to be held accountable for: the hate scandal, Pegasus, Orlen, the respirator scandal, the envelope elections, and the visa scandal, to name just a few examples from a long list.

The pressure on the prosecution to deliver accountability is likely to increase.

Firstly, it is an election promise, and Prime Minister Tusk will want to show that he is fulfilling it.

Secondly, the government is not implementing other promises, such as civil partnerships or decriminalizing abortion. Thus, it will want to show that it has other successes.

Thirdly, Roman Giertych, who has positioned himself as the overseer of accountability, will exert pressure. Although an informal role, Giertych leads a team of MPs responsible for accountability, which acts as an internal commission exerting pressure on the Minister of Justice and Prosecutor General Adam Bodnar. Giertych organizes regular meetings with the minister to discuss the progress of holding people accountable for scandals. This resembles a so-called “carpet,” where Bodnar explains the progress in dealing with the scandals. Giertych’s position is strengthened by the fact that his client, Tomasz Mraz, a former director in the Justice Fund, has cooperated with the prosecution, providing materials that allow for charges against Sovereign Poland politicians.

The prosecution cannot work under pressure, as haste can lead to mistakes.

Firstly, an investigation is not a race against time aimed at success. It must be thorough. A prosecutor should only press charges when there is strong evidence, and gathering it takes time. Prosecutors must follow procedures and confirm everything. Veteran prosecutors say, “You can only catch fleas quickly.”

Secondly, prosecutors should be free from pressure. While holding PiS accountable should be a priority, the prosecution should act swiftly but not at any cost. Prosecutors must have the independence to draw conclusions and make procedural decisions. Sometimes what can be described in journalism does not qualify as criminal charges. Prosecutors must have the courage to say “no” if the evidence does not support criminal charges.

The prosecution’s role is not only to accuse but also to decide if someone is innocent or if there is insufficient evidence against them. It is essential for prosecutors to feel independent in making decisions. They should not fear losing their positions or facing public dismissals for making mistakes, although they should still be accountable for their decisions, including erroneous ones.

Adam Bodnar understands this and has given the prosecution a free hand. This is important because otherwise, independent prosecutors will step aside, and cases will be handled by obedient prosecutors who will follow orders. Bodnar must feel the support of the prime minister, and the prosecution must have decision-making autonomy.

Tusk should avoid Eastern-style show trials where he publicly holds his ministers accountable. This was the case when Bodnar was summoned to explain the investigations concerning Orlen. This was a reaction to media reports that former Orlen CEO Daniel Obajtek was living abroad.

Thirdly, the prosecution needs independence as soon as possible. This is an election promise of the current ruling coalition. There is already a proposal to separate the roles of the Prosecutor General and the Minister of Justice. Only independence will allow the prosecution to work without pressure.

The separation will not happen for at least a year because President Andrzej Duda is unlikely to agree to changes in the prosecution, believing that the removal of former National Prosecutor Dariusz Barski was illegal.

Bottlenecks in the Prosecution

Before the separation happens, the prosecution needs a personnel shake-up. The current administration should not give independence to the prosecution without vetting prosecutors. This is necessary to build an independent and professional investigative body.

Zbigniew Ziobro politicized and subordinated the prosecution, turning it into the government’s weapon against the former opposition. Allies were promoted, while independent prosecutors from Lex Super Omnia faced demotions and repression.

Today, there is talk of reconciliation, but it is not possible without first vetting and removing those who betrayed the law, their oath, and basic decency. There should be no place in the prosecution for those who helped create a protective umbrella for the previous administration.

This is also crucial for holding the previous administration accountable. Today, the highest levels of the prosecution are filled with Ziobro’s appointees, including declared Ziobrists. Nearly all Deputy Prosecutors General are appointees of the previous administration.

This is especially true for the National Prosecutor’s Office and regional prosecutors’ offices. The process of appointing Ziobrists continued until the end of PiS’s rule, distributing so-called last-minute promotions to entrench Ziobrists in the prosecution.

The current administration must be aware of this. It is a significant bottleneck in the prosecution. Ziobrists will be reluctant to hold the PiS administration accountable. Even if they take a case, they could drag it out for years. Some prosecutors take a cautious stance, watching the events and waiting to see which way public and government sympathy will swing.

Especially since PiS politicians threaten daily that they will imprison everyone, including Bodnar, if they return to power. This deliberate creation of a chilling effect will undoubtedly affect some.

There are two conclusions from this.

Firstly, the pool of prosecutors willing to hold PiS accountable may be short. Secondly, independent and courageous prosecutors, the so-called ethos prosecutors, must be relied upon for accountability, and special investigative teams must be appointed, which is happening. Only this guarantees that investigations will progress and that charges will be brought against PiS politicians.

However, another problem arises. Bodnar has reduced the salary bonuses that were generously distributed during Ziobro’s tenure. These bonuses allowed prosecutors to earn a second salary. Now, without these bonuses, there is a lack of willingness to work in Warsaw.

This is why the Internal Affairs Department, which PiS established to investigate judges and prosecutors, still employs prosecutors delegated during Ziobro’s tenure, who persecuted independent judges. Until recently, despite the change in power, they continued to investigate these judges. Currently, there is only a new head and one new prosecutor. Bodnar must consider incentives for prosecutors, possibly restoring some of the bonuses.

Bottlenecks in the Courts: Trap Number 1 – Lengthy Trials

However, the problems in the prosecution are nothing compared to the hurdles accountability will face in the courts. The politicians of the current coalition are unaware of this and will be deeply disappointed. There are several bottlenecks in the courts that could prevent any verdicts, even non-final ones, from being issued during the current term, and large trials might not even begin.

This could mean that by the next election, the PiS politicians under investigation will still have the status of innocent and, like Donald Trump, could run in the next election.

Why?

Firstly, Ziobro’s “reforms” have crippled the courts. Before 2015, Polish courts may not have been perfect. They may have lacked justice, and judges may have lacked humility and empathy. But they were not bad courts, ranking in the European average. The duration of trials was shortening.

Now, the courts are on the ropes. They are in collapse, almost non-functional. This is especially true for the largest courts, particularly those in Warsaw. It is mainly here that

PiS politicians will face trials, as it is the jurisdiction of the Warsaw district and regional courts. Meanwhile, in Warsaw, trials take forever, and the judges are overwhelmed.

The length of trials is a significant problem. Former prosecutor, now judge Krzysztof Parchimowicz of Lex Super Omnia, wrote an article about “lengthy trials” and concluded that trials that last two, five, or even ten years are not a violation of fair trial. However, they may become such if they are handled by a particular panel of judges (e.g., three-judge panels) or if procedural issues are dragged out for years, which is often the case in economic and fraud trials.

This is already visible in high-profile trials, such as the Pegasus trial. Despite a media frenzy and extensive documentation of the case, it is still in its initial stages. The public is waiting for a resolution, but the trial is not progressing.

Another issue is the division of judicial powers. In Poland, courts are divided into civil, criminal, administrative, and military. High-profile trials are mostly handled by criminal and civil courts. They are burdened with a huge number of cases and lack judges.

This shortage of judges will be a significant challenge for the accountability process. The government should be aware of this and consider increasing the number of judges or appointing special panels to handle these cases.

Without addressing these bottlenecks, the government’s promise of accountability may remain unfulfilled. The prosecution and courts must be strengthened and reformed to ensure that justice is served and that those responsible for the scandals are held accountable.

The above text by Mariusz Jałoszewski was published in OKO.press on July 19, 2024 https://oko.press/afery-czasow-pis-nie-beda-szybko-rozliczone