Law and Justice’s Concentrated Power over Polish Prosecutors

Scott Robinson via flickr // CC

On July 8, 2019, prosecutor Mariusz Krasoń was relocated from the Regional Prosecutor’s Office in Cracow, Poland, to the District Prosecutor’s Office in Wrocław-Krzyki, which is almost 300 km away, and two positioned levels lower in the hierarchy. The Justice Defense 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 signaled, among other things, restrictions on the independence of prosecutors under the Law and Justice (PiS) government. It was followed by his forced transfer to remote lower level prosecutor’s office.

The Law on Public Prosecutor’s Office of January 28, 2016, passed by the votes of the Law and Justice party concentrated power in the prosecutor’s office in the hands of one person – the Prosecutor General, who at the same time is the Minister of Justice in PiS government.

Moreover, many legal changes created additional tools to exert pressure on subordinate prosecutors. The extensive interference of the General Prosecutor in ongoing pre-trial proceedings (including the strengthening of the authority of the head of the prosecutor’s office to transfer cases) makes it possible to prosecute people who are inconvenient for the authorities and to discontinue proceedings against those who are in favor of the authorities.

Legal changes allowed for the degradation 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 They have been replaced by prosecutors often from the lowest level.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 degraded.

The mechanism of rewards and promotions is another tool to exert pressure on the prosecutors. It is now possible to promote a prosecutor from the lowest level of the prosecution to the highest level.

In addition to these changes, disciplinary proceedings, under the control of the Minister of Justice as the Prosecutor General, are a tool for top-down pressure.

The Prosecutor General appoints the President and Deputy President of the Disciplinary Court of the Prosecutor General and the disciplinary spokespeople who are prosecutors in disciplinary proceedings of prosecutors. The General Prosecutor may also request that an investigation be initiated against a particular prosecutor.

This increase in power is 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 relation to people in Poland.

In addition, the last stage of the prosecutors’ disciplinary proceedings, i.e. the proceedings before the Disciplinary Chamber of the Supreme Court, should be assessed critically.

It currently consists only of newly appointed persons, recommended the new National Council of the Judiciary, dominated by nominees of the ruling party, and appointed by President Andrzej Duda. Therefore, it is difficult to talk about the Disciplinary Chamber’s independence.

In recent years, the system of disciplinary punishment of judges has also changed. It was made very dependent on the Minister of Justice (Prosecutor General). It enables disciplinary proceedings against judges and their harassment for disobedience to the authorities and criticism of actions harmful to the rule of law.

On October 10, 2019, the European Commission decided to refer Poland to the Court of Justice of the EU regarding the new disciplinary regime for Polish judges, requesting an expedited procedure.

Full analysis of the disciplinary tools of the prosecution in Poland available here (in Polish)

Karolina Wasowska