The Polish Prosecutor’s Office’s Sickness
The general prosecutor’s office is one of the institutions which activities still rise the most controversy in the opinions of politicians, media, and citizens in Poland. At the same time, it seems to be one of the least understood by the general public. In public discourse, we often hear the question: Should the Minister of Justice ex officio act as Prosecutor General?; more frequently than What should a prosecutor’s office be? (D. Wysocki, Nowe usytuowanie prokuratury w systemie organów państwowych, „Państwo i Prawo“ 2010, 5, p. 81)
Crucial in understanding its current place between law and politics is the realization that the same institution serves to fight crime - among both ordinary citizens and political figures - and thus can be used to fight political opponents - when it is overly dependent on political actors. Which, especially in recent years, is of deep concern to me.
Regrettably, the unfortunate lack of location of the prosecutor’s office in any of the chapters of the Constitution, as well as the lack of consensus among political parties as to the place of the prosecutor’s office in the political system, prevents its constitutional legitimacy.
In my text, I shall attempt to answer the questions: What is the prosecutor’s office? What are its weakest spots in our country? What does the combination of the position of Prosecutor General with the role of Minister of Justice entail? What do the abuses in temporary arrests lead to? And - is there a recipe for healing the prosecutor’s office?
What is the public prosecutor’s office in Poland?
The public prosecutor’s office is one of the organs of legal protection, and its most important task is to supervise the execution of the law. It is an office with different competencies, which, together with the police authorities, deals with the investigation and prosecution activities necessary for the administration of justice by judicial authorities. The ambiguous political-legal status and the way the prosecutor’s office functions make it difficult to categorize this body under any rule. On the one hand, one would like to assign it to judicial power. On the other though, “the primary aim and task of the prosecutor’s office are to protect the state and citizens in accordance with the norms of the law established in the Republic of Poland”, and yet issues related to public order are the domain of the executive power.
The prosecution service may be more closely linked with one of these two authorities, depending on the systemic solutions adopted. In the case of Poland - as I mentioned in the introduction - the Constitution does not define the position of the prosecution service, the effects of which we have seen in the allocation and re-combination of the role of the General Prosecutor with the position of the Minister of Justice. It should also be mentioned at this point that the prosecution service is only an institution consisting of prosecutors, while the prosecutors themselves are a state body (with the Prosecutor General at its head) (D. Wysocki, Nowe usytuowanie prokuratury w systemie organów państwowych, „Państwo i Prawo“ 2010, 5, p. 81).
They participate in both civil and criminal proceedings. In the latter, the main aim of the prosecution service is to uncover the crime and bring about the conviction of the person who committed it. This is done using pre-trial proceedings, public prosecutions in court proceedings, and, for example, coordinating the activities of the police in the prosecution of crimes. If the prosecutor's allegations are not confirmed in the course of a trial, they should drop the charges but should also, in the course of the prosecution, raise motions in favor of the accused if there are objective reasons for doing so.
But who is the General Prosecutor, and what are the characteristics of this office, the highest in the hierarchy of institutions? The fundamental right of the head of the prosecution service is to appoint and dismiss (under certain conditions) all prosecutors in its standard organizational units, i.e., the Public Prosecutor’s Office, regional prosecution offices, district prosecution offices, and regional prosecution offices. The General Prosecutor is also the superior of military prosecutors and prosecutors of the Commission for the Prosecution of Crimes against the Polish Nation at the Institute of National Remembrance.
In addition, the General Prosecutor may submit a motion to the relevant services to carry out operational and exploratory activities and lift secrecy clauses imposed by various institutions (they must notify the head of the institution needed and the Prime Minister). He has the right to initiate cassation proceedings through an extraordinary cassation appeal and a cassation complaint. He can also convene the Prosecutors’ Council to the General Prosecutor, a consultative body that determines the number of members of the disciplinary court.
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As I mentioned above, the positions of the General Prosecutor and the Minister of Justice have been merged, and now again, as for most of the history of the Third Republic of Poland, we have a situation in which the same person performs these functions. However, to understand why these organs have been merged for the more significant part of the last three decades, we must go back to the beginning, back to the 1980s, and briefly describe the whole sequence of cause and effect related to the position of the General Prosecutor.
A pinch of history
For most of the history of the Third Republic of Poland, the offices of the General Prosecutor and the Minister of Justice were intertwined. This was not a relic of the People’s Republic of Poland but a way to make the prosecution system independent from the former state apparatus.
Before the systemic transformation, under the 1985 Act on the Public Prosecution Service of the People’s Republic of Poland, the powers to appoint and dismiss the Prosecutor General was vested in the Council of State. This was due to the lack of political control that parliament could exercise over the prosecution service and its total dependence on the all-powerful communist party, which used the prosecution service to fight its political opponents. The law amending the Constitution, introduced after the Round Table talks on 7 April 1989, transferred many of the competencies of the Council of State to the created position of the President of the People’s Republic of Poland.
The picture from the Round Table talks, 1989. Erazm Ciolek/FORUM
This included the right to appoint and dismiss the General Prosecutor, who was obliged to report on the activity of the Prosecutor’s Office to the President. This state of affairs did not last long. In December of that year, Tadeusz Mazowiecki’s government introduced a law amending the Constitution of the People’s Republic of Poland, establishing a personal union of the Minister of Justice and the General Prosecutor. Only this enabled the supremacy of Solidarity politicians over the prosecution system. Aleksander Bentkowski became the first ex officio, Minister of Justice, to control the Prosecutor’s Office. The postulate of politicians’ supremacy over the Prosecutor’s Office was not changed by the so-called Small Constitution of 1992, nor by the Constitution of the Republic of Poland of 1997.
This was due to the prosecution model, in which - through a personal union of the General Prosecutor and the Minister of Justice - it was subordinated to the government. It has been argued that prosecution, being subordinate to the executive, could not be regulated elsewhere in the Constitution than in the chapter devoted to the executive because by placing the prosecution in a different branch, it was not intended to remove the influence that the executive had over it. As a result, the place and position of the General Prosecutor in the structure of state bodies was not defined in the Constitution at all, which allowed for the later separation of this office from the executive power.
This state of affairs lasted until 31 March 2010, when the functions of the General Prosecutor and the Minister of Justice were divided, separating the prosecution service from the executive power. Interesting fact: until that time, Poland was the last country in the European Union where the Minister of Justice ex officio exercised the function of the Prosecutor General. As a result of amendments to the Prosecution Act, the General Prosecutor was to be appointed by the President of Poland - from two candidates proposed by the National Council of the Judiciary and the National Council of the Prosecution - for a six-year term, with no possibility of re-election.
Under these provisions, the General Prosecutor was required to submit an annual report on the activities of the prosecution service to the Prime Minister of Poland. This body was not immovable, as both the President and the Sejm (the lower chamber of the Polish parliamentary system [translator’s notice]) (with a 2/3 majority vote on the motion of the Prime Minister if the report was rejected) could dismiss the General Prosecutor before the end of their term. This independence of this body from executive pressure seemed to be a step in the right direction, as, after 1989, we had a situation where successive Ministers of Justice (regardless of their party affiliation) introduced changes in personnel and organization to increase their own political base in the prosecution service.
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The prosecution community itself was not unanimous in assessing the changes introduced (the Polish Prosecutors’ Association supported the changes, while the Prosecutors’ Ad Vocem Association opposed them). The solution functioned for only six years. Today, the Public Prosecutor’s Office operates under the new Law on the Public Prosecutor’s Office passed on 28 January 2016, which came into force on 4 March 2016. Under this law, the Minister of Justice again ex officio performs the duties of the General Prosecutor.
When the new law on prosecution was introduced in 2016, reference was made to the provision of Article 146(4)(7) of the Constitution of the Republic of Poland, which speaks of ensuring the internal security of the state and public order by the Council of Ministers, apparently forgetting that the prosecutor’s office performs tasks only in the field of prosecution of crimes and upholding the rule of law (impartial and reliable). One of the basic conditions for fulfilling this role is that prosecutors are prohibited from belonging to a political party or participating in any political activity while in office. In contrast, the Prosecutor General in the person of the Minister of Justice may even be the head of a political party (which indeed the current Minister is).
Given the powers and concentration of power in the position of Prosecutor General, and the opportunities this situation creates for abuse of power in political struggle, and the way Zbigniew Ziobro directs the activities of the prosecution service, we can speak of a real politicization of the prosecution service.
The Polish Minister of Justice Zbigniew Ziobro. Wikipedia
Selectivity and bad practice
Recently, the prosecution has provided the public with very striking examples of selective handling of cases. Its actions are either too dilatory or too overzealous. This can be perfectly seen in the case of proceedings against political figures, which is why I have chosen three situations to serve as such examples.
At the end of September 2019, opposition MPs filed a notice to the Warszawa - Śródmieście District Prosecutor’s Office about tax evasion by the newly elected head of the Supreme Audit Office. Later, Minister Mariusz Kamiński (Minister of Interior and Administration of Poland and Coordinator of Polish Intelligence Services) referred the notification on Marian Banaś (President of the Supreme Audit Office) to the Regional Prosecutor’s Office in Białystok. The prosecutor’s office launched an investigation into the irregularities in the asset declaration. Still, there has been no visible progress since then, and the public is reminded of the ongoing investigation every time the NIK (pl. Najwyższa Izba Kontroli - The Supreme Audit Office).
Chairman does a disservice to the ruling camp. When in May the media reported on NIK’s findings in the matter of notifying the prosecutor’s office of a possible crime committed by the highest persons in the state during the organization of envelope elections, officers of the Central Anti-Corruption Bureau appeared at the home of the NIK head’s son (on the morning of the conference at which he was to inform the public). The search was conducted on the recommendation of the Regional Prosecutor’s Office in Białystok.
It is impossible to be indifferent about the coincidence of the dates of these two events. Unfortunately, they bring to mind the puppet treatment of such an important institution and probably leave no illusions about its objectivity.
Another glaring example of the prosecution’s selective treatment of cases was provided by its failure to initiate proceedings against Jarosław Kaczyński in connection with the suspicion of a crime raised by the Austrian businessman Gerald Birgfellner.
Let me remind you that this famous case concerned payment for an order related to preparations for the construction of two high-rise buildings in Warsaw by the Srebrna company. The company is owned by Lech Kaczyński Institute, which is a foundation with Jarosław Kaczyński on its board. The Austrian businessman testified to the prosecution that he was persuaded to pay a bribe of 50 thousand zlotys to another member of the foundation’s council.
In this whole situation, the most important issue seems to be who these accusations were directed against. We are not dealing here with a businessman who is not widely known to the public (although in the case of every business person, the proceeding should be initiated in the circumstances of such accusations and evidence in the form of recordings), but with the head of the political group that governs the country!
The prosecution justifies its decision not to initiate proceedings because, in its opinion, no criminal offenses were committed in this situation. One can only wonder whether the prosecution under the authority of an independent body, such as a person who is not a member of the government, whose existence depends on the political background headed by Jarosław Kaczyński, would apply the same interpretation of this case.
However, there are situations in which the prosecution can handle the case of a politician accused of corruption efficiently and vigorously. This is quite evident in the case of the former Minister of Transport Sławomir Nowak.
The Minister of Transport, Construction, and Marine Economy of Poland Sławomir Nowak. Platforma Obywatelska RP
In July last year, the former politician was detained by the CBA in connection with corruption charges. So far, he has been charged with a dozen or so offenses, including “setting up and leading an organized criminal group operating in Warsaw, Gdańsk, and Ukraine, accepting multi-million financial benefits and paid protection in connection with the position of the head of Ukravtodor, demanding and accepting economic benefits in the years 2012-2013 in exchange for roles in state-owned companies, money laundering and paid protection in connection with the position of the Head of the Political Office of the Prime Minister and the Minister of Transport, Construction and Maritime Economy”.
The case became notorious again in April this year when the District Court in Warsaw did not agree to extend the defendant’s stay in custody. The prosecutor demanded an extension of the detention period due to the fear of the suspect’s departure from the country and due to the amount of punishment he faced (15 years). The court apparently found the prosecution’s irrefutable evidence insufficient, arguing that the witness testimonies collected by the CBA instead proved the suspect’s innocence. Sławomir Nowak was released from custody, but the court granted him police supervision, a ban on leaving the country, and a surety of 1 million zlotys. The time for payment was to have passed on 18 June, and the money was received, which was confirmed by the Warsaw prosecutor’s office, but the prosecutor refused to draw up a protocol of acceptance of the funds into the deposit, citing objections and a complaint, as reported by attorney Wojciech Glanc (attorney for Nowak’s daughter, who paid the surety).
The prosecutor motivated his decision by the Warsaw Court of Appeals ruling, which stated that the former minister is to be returned to custody if he fails to pay the designated amount. A spokeswoman for the prosecutor’s office said that once the decision of the Court of Appeal becomes final and an appeal is filed, the amount will be returned to the defendant’s family, and if the prosecutor’s appeal against the decision is not accepted, the prosecutor will draw up a protocol of acceptance of the financial guarantee.
Sławomir Nowak was held in custody for nine months without a court sentence. The case is still pending. This example prompted me to take a closer look at the very subject of temporary arrests and their use. Then I saw that in recent years this practice had been used more and more often. How often? Since 2015, the recorded number of pre-trial detentions has almost doubled, despite the number of incarcerated people and crime in Poland decreasing (graph 1) every year.
The report of the Court Watch Poland Foundation finds not only an increase in the number of pre-trial detentions (at the end of 2018 - 487 people, compared to 151 people in 2016) but also their extension: an average of 439 days in cases heard by a district court and 223 days for cases heard by a district court. As an interesting fact, I will add that in the course of writing the report, the authors came across a case of arrest for 43 months (more than three years!).
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I want to stress that pre-trial detention is a wait in custody for a final sentence, so we are talking about staying in the custody of people who have not been convicted. Without underestimating the nature of the provisions allowing pre-trial detention, I do not have to strain my mind too much to notice that something that should be a last resort - permissible and entirely acceptable in some instances - has in recent years taken on a preventive character, and the effectiveness of prosecutors with irrefutable evidence has led to an absurd.
How does the prosecutor’s office look like?
This begs the question: What should our prosecution system look like? In recent years, there have been many reports on how the prosecution service is performing and how the offices of the General Prosecutor and the Minister of Justice have been merged. While one cannot disagree that the merger of these two positions has resulted in the politicization of the prosecution system, it must be remembered that the mere separation of these offices is not sufficient to heal this body. There are also indirect factors that affect the independence of this institution, such as clientelism and links to specific politicians.
As I have tried to show above, one of the cardinal sins of the prosecutor’s office is its far-reaching subservience to the politicians who supervise them. It is also necessary to have democratic control over an institution that can interfere in the realm of human rights. It seems that the most durable solution to these problems would be to enshrine the status of the prosecutor’s office in the already extensive Constitution. This would strengthen and clarify its position in relations with the executive and judiciary.
Of course, there are proponents of taking the prosecutor’s office out of the executive branch’s oversight and retaining it. The latter argue their position because the government is responsible for the fight against crime and that public control over this institution is needed. Lech Kaczyński, among others, used these arguments in arguing his veto of a 2009 law separating the personal union between the General Prosecutor and the Minister of Justice.
The Court Watch Poland Foundation report authors emphasize the need for an in-depth analysis of the prosecution’s motions and the justification for initiating proceedings. They also state that it is advisable to change the name of temporary arrest to preventive isolation. This is to differentiate this action from the punishment of detention. The issue of ex officio payment of compensation to wrongfully convicted persons who have been acquitted of charges should also be legally established.
It is also worth considering the recommendations formulated by Jarosław Onyszczuk and Katarzyna Kwiatkowska from the Stefan Batory Foundation (an independent non-governmental organization working for the development of democracy and civil society in Poland). In their publication on the role and place of the prosecutor’s office, the authors emphasize that in the context of healing the prosecutor’s office, it is crucial to draft a new law on the prosecutor’s office that separates the functions of the prosecutor's general and the minister of justice. They also recommend clarifying the necessary qualifications that a candidate for the General Prosecutor should have, including length of service. They add that it should be a person with the highest professional, intellectual and moral qualifications and agree that the term of office of the Attorney General should be six years and that an independent body of the prosecutors’ self-government should be involved in the apolitical process of filling this position.
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Beyond any doubt, the following should be reiterated by T.P.Marguery as the four most important principles on which the functioning of the Prosecutor’s Office should be based: independence from any influence; democratic control over the activities of the institution; effectiveness in protecting the rule of law and combating crime; and protection and respect for human rights.
In conclusion, an independent and fully autonomous prosecution service is a necessary condition for the independent operation of the justice system (and, by extension, the judiciary as a whole). The activities of prosecutors shall not be limited or directed in any way by the Minister of Justice or the prosecutors to whom they report. This means that executive influence over the prosecution system, the hierarchical nature of this body, and the lack of transparency that this entails, are not compatible with a democratic state under the rule of law.
In my opinion, to heal our prosecutor’s office and bring quality to our justice system, we must detach this structure from the executive and draft a law that will counteract attempts by any of the powers to influence the prosecutor’s office.
After reading this text, I want to ask the reader to answer this question: Do I accept how one of the most critical institutions whose goal is to uphold the rule of law functions? I don’t, not even a little. Hence this article.
Written by Adam August Michalik, the project “Youth About Politics”, University of Warsaw (Poland)