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Poland’s rightwing government plans sweeping powers for own party Prosecutor General

Halya Coynash
Poland’s new government has just passed a highly contentious law on police surveillance and is set to give the current Justice Minister powers never before held in democratic Poland

One day after the European Commission announced its decision to probe rule of law concerns in Poland, the Prawo i Sprawiedliwość [PiS] party now in power adopted a highly contentious law on police surveillance.  It is also planning to make the current Justice Minister Prosecutor General and give him powers never before held in democratic Poland.

PiS has reacted aggressively to any criticism, claiming that the political opposition, aggrieved to have been ousted in free and fair elections, is spreading lies.  The same concerns have, however, also been expressed by human rights organizations and numerous legal and professional bodies.   The criticism also extends beyond the situation concerning the Constitutional Tribunal and the changes to the Public Broadcasting Law cited by the EC.     

PiS certainly won the elections in October, but it has since seen a sharp fall in support.  According to 2 opinion polls this month, were elections to be held today, PiS, even together with its current allies in the Kukiz-15 party, would probably not have a majority in parliament.  Elections will not be held, but PiS leader Jarosław Kaczyński’s dismissive comments about mass protests and his reported announcement to party colleagues of likely changes to electoral law suggest a frightening determination to push through changes that were not clearly articulated during the elections, and which are obviously alarming voters.

The Helsinki Human Rights Foundation was one of a number of organizations that made submissions against the law extending police surveillance powers passed on Jan 14. It is convinced that the law does not fulfil the requirements of a judgement issued earlier by the Constitutional Tribunal.  Consideration of this new bill is unlikely in the near future given another law effectively paralyzing the Constitutional Tribunal - one of the developments now under EC scrutiny. 

The Foundation warned that the draft law does not provide any independent control over the surveillance and does not meet EU requirements on personal data protection.  Enforcement bodies will have access to Internet data without any court ruling and without having to provide any reason for the surveillance.  Court consent will only be needed for reading the contents of correspondence, etc.  The Human Rights Ombudsman Adam Bodnar considers that the requirement that the courts are provided with surveillance statistics every 6 months gives only “illusory control’.  His view is shared by the Helsinki Foundation, Panoptykon Foundation and a number of other rights organizations. 

New and Old Prosecutor General

PiS is forging ahead with plans to merge the positions of Justice Minister and Prosecutor General, while adding dangerous possibilities for interference. The proposed merger is one of the few changes that could be anticipated.  PiS has consistently opposed the separation of the two posts which was introduced in 2010 by the former Civic Platform [PO] government.  The new bill, however, would give the new Prosecutor General vastly extended powers. 

Justice Minister Zbigniew Ziobro claimed in the Sejm that the body responsible in Poland for security in the country is the government which must have the means to ensure this security.  Ziobro has already made it quite clear, both in parliament and in television interviews, that he wants to bring  disciplinary proceedings against Andrzej Rzepliński, the President of the Constitutional Tribunal and get him out of his post early.  Concerns expressed by the European Commission, and by all legal bodies who have criticized the government’s law on the Constitutional Tribunal pertain, among other things, to measures aimed at reducing the terms of the Tribunal’s President and Vice-President.

The PiS proposals have been criticized by Poland’s National Council of the Judiciary which has since 2008 supported the division of the posts of justice minister and prosecutor general.  It states that there are no grounds for once again merging the posts, and “the subordination of the prosecutor’s officer to the Justice Minister, simultaneously equipping him with a number of supervisory powers, will have an adverse effect on the independence of prosecutors carrying out investigative proceedings”. 

The National Council also criticizes Article 19 § 4 which envisages the creation of an Internal Department for investigating criminal offences allegedly committed by judges and prosecutors, and carrying out the prosecution in such cases.  The Council says that the creation of such an internal department could undermine public trust in the justice system and cause it harm. 

The National Council reiterates concern expressed by the opposition and journalists regarding Article 12 which allows the Prosecutor General, the National Prosecutor or prosecutors empowered by them to reveal information “to other individuals’ about specific cases, if this “information could be relevant for the country’s security and its proper functioning”.  The permission of the prosecutor in charge of the case would not be required. The National Council points to the lack of clarity as to what kind of information could be passed on, and to whom.  This will give grounds for making arbitrary decisions regarding divulgence of information. 

Ewa Usowicz, writing for Rzeczpospolita, which can in no way be considered an opposition newspaper, writes:  “I don’t know if Zbigniew Ziobro will politicize the prosecutor’s office. I do know that if he wants to do that, the planned amendments will give him unprecedentedly effective powers.”  The scope for politicization of the prosecutor’s office is enormous.  

The Prosecutor General will be able to issue binding instructions to each prosecutor in the country.  At present, a superior can only give a limited range of instructions which must be in writing.  If the prosecutor disagrees s/he can simply refuse.  A prosecutor’s boss cannot force a particular direction for an investigation,   for example, by insisting that a case be terminated.    If a person’s superior demands that a prosecutor bring charges against a person over the Smolensk plane crash on April 10, 2010, there is no formal way of forcing him to do so.  If this new law is passed, then there will be no formal way of not obeying, except to resign. 

The example is of relevance given the insistence by members of the ruling PiS party that there was a bomb on the plane carrying Polish President Lech Kaczyński and a huge number of other high-ranking Polish officials to Katyń near Smolensk in Russia.  An independent commission produced entirely different results, and the version  presented by Antoni Macierewicz (now Minister of Defence) and some rather questionable experts, was not previously given official credence.   That has now changed, and a new investigation is planned, with this widely expected to reach the conclusions earlier presented by Macierewicz. 

Usowicz, acknowledges the hierarchical system within the prosecutor’s office, but stresses that in any situation where the Prosecutor General or a superior tells a prosecutor to act in a certain fashion, this should be in writing and with an explanation, which must be added to the file material.  “Otherwise the Minister will be able to use others to organize any case, without providing justification and without leaving any particular trace.”

And, as mentioned above, any prosecutor or the Minister/Prosecutor General will not only have access to the files of any case, but will also be able to make the information available to the media or “other individuals”. 

Concern is also legitimate over the vague principles for job advancement in the new bill.  According to this, the Prosecutor General will be able to bypass all competition procedure and considerations of work experience in appointing particular candidates.  What criteria would be applied can only be guessed.  Traditional terms of service will be abolished, and it will also be easier to remove individual prosecutors. 

All of this would almost certainly have a very negative effect on prosecutor independence. Prosecutors may well come under pressure to bring charges and send a case to court despite the lack of solid evidence, or to obtain evidence through unlawful force, etc.  Ewa Siedlicka from Gazeta Wyborcza notes that prosecutors never needed to fear criminal prosecution for using pressure to fabricate evidence, but they could face disciplinary proceedings.  The draft law in question specifically states that a prosecutor will not be considered guilty of a disciplinary offence or negligence if they acted “in the public interest”. 

The present Justice Minister claims that the broad powers proposed in the law on the prosecutor’s office and his leading role are needed to protect the country’s ‘security’.  His impunity, as acting “in the public interest”, will thus be guaranteed for the next four years if this highly retrograde and dangerous law is passed.  

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