The report of the Lex Super Omnia Prosecutors’ Association entitled “The Stick Method”, is a comprehensive analysis of the situation that the prosecutor’s office has been struggling since 2016. Lex Super Omnia is an association of independent Polish prosecutors supporting democracy, quality of prosecution services and the rule of law.
The report explains the violations made as a result of the adoption of two acts of law, which were adopted at an express pace. After the adoption of the acts that amended the Act on the Public Prosecutor’s Office and the Law on the System of Common Courts, the number of delegations, degradation and retirement radically increased.
Immediately after the adoption of the amendment, as many as 166 people retired from January 1 to March 15, and as many as 305 throughout 2016. The report also revealed an alarming number of degradations and delegations, which indicates the use of these instruments as a method of punishing prosecutors independence. The report also discusses changes to military prosecutors. One of the authorities’ actions was to send military prosecutors to the so-called “green garrisons”.
In March 2016 Antoni Macierewicz (the Minister of National Defense) issued a decision to dismiss 5 military prosecutors and send them to serve in distant “green garrisons”. It was also revealed that of all demoted prosecutors in 2016, 19 were prosecutors of the liquidated military prosecutor’s offices, including prosecutors who participated in the investigation into the Smolensk air crash (where many Polish representatives died, including the president and his wife).
As many as 4 prosecutors were dismissed from their positions and transferred to the reserve-staff, at the same time deprived of the right to obtain a higher promotion rate, which, according to Lex Super Omnia, was a financial penalty. These transfers were motivated by “important public interests” and “the needs of the Armed Forces”.
The report also reveals violations of the law concerning the appointment of public prosecutors to deputy disciplinary spokesmen, which were committed by the Public Prosecutor General and the National Public Prosecutor. As indicated in the report, this defectiveness is related to the Public Prosecutor General’s failure to fulfill the statutory obligation to appoint Deputy Disciplinary Prosecutors for regional districts.
Moreover, it is also related to the National Public Prosecutor’s violation of the powers by violating the Public Prosecutor General’s exclusive prerogative to appoint and dismiss these Deputy Disciplinary Prosecutors and also issuing statutorily unknown acts “temporarily entrusting the performance of these functions” and acts of “extending the period of performing these functions”.
Lex Super Omnia in their report also indicates the destruction of prosecutor’s impartiality and independence through the so called Disciplinary Chamber of the Supreme Court. A judgment of the Court of Justice of the European Union confirmed that this Chamber breaks the law and is inconsistent with EU law.
The Disciplinary Chamber with its jurisprudence changes the uniform line of jurisprudence. It presents the view that the court of second instance is entitled to waive the immunity of a prosecutor in the situation of a complaint filed by the prosecutor against a resolution refusing to allow the prosecutor to be held criminally responsible. It is a specific violation of the ne peius principle, the task of which is to limit the powers of the court allowing for the deterioration of the defendant’s situation.
In the report, we can also see the slow reduction of the prosecutor’s self-government to the role of a dummy. This self-government should be one of the pillars of prosecutor’s independence. Following the changes to the law in 2016, the prosecutor’s self-government is marginalized and depreciated, which proves that the way chosen by the government is aimed at making the prosecutor’s office completely dependent on politicians.
One of the “good changes” in the self-government is, inter alia, a change concerning the activity of a self-government body, i.e. the Assembly of Public Prosecutors of the Regional Prosecutor’s Office. As emphasized by the authors of the report, it is an important body, as it has, inter alia, powers to elect a representative to the National Council of Public Prosecutors and to elect members of the Disciplinary Court at the Public Prosecutor General’s Office.
Taking advantage of the opportunity of the COVID-19 pandemic outbreak, an anti-pandemic law called “Shield 3.0” was adopted. One element of this law was modification of the method of conducting the assembly of public prosecutors of the regional public prosecutor’s office. These changes benefited the opponents of prosecutor’s independence. The adopted amendments to the law concern, for example, the modification of the composition of the prosecutors’ assembly – the assembly included, inter alia, deputy regional prosecutor.
Moreover, the regulations exclude the obligation to hold election of delegates and, at the same time, extend the term of office of the previously elected delegates until new ones are elected. The effect of such regulations is a change in the nature of the public prosecutor’s self-government body from self-government to representation of managing prosecutors.
It means that prosecutors lost their forum where they could freely take a position, without fear of taking “disciplining” actions against them. The intentions of instrumental use of the state of emergency are revealed – these changes have nothing to do with the epidemic threat.
Full report is available here [in Polish]