Draft amendment to the Prosecution Service Act – opinion of the HFHR

Works on the amendment to the Prosecution Service Act are underway. The changes proposed in the draft amendment include the dissolution of the separate military prosecution service and the establishment of a Government’s power to approve annual “fundamental considerations of criminal policy”. According to the HFHR, works on the bill should be abandoned.

The draft amendment endows the Council of Ministers with powers to adopt “fundamental considerations of criminal policy”. Those will set out “current problems related to the prosecution of crimes, legal provisions which are, in the Government’s opinion, of the key importance for implementing criminal policy and for ensuring the respect for human and civil rights and freedoms. The considerations will also discuss criminal regulations whose application must be subject to a review”.

“Our assessment of this proposal is negative”, says Barbara Grabowska, lawyer with the HFHR. “The proposed regulation fails to define the legal status of these ‘fundamental considerations of criminal policy’. They have no biding legal force, being rather a government’s political statement or policy paper. If the activities of the prosecution service are guided by a political statement, then we are dealing with a gross violation of the general principle of the independence of this organisation”, explains Ms Grabowska.

The authors of the bill proposed to define particular types of supervisory measures such as orders, guidelines and instructions. According to the proposal, instructions would also apply to evidence-taking procedure or time-limits for performing procedural acts, that is the issues which have material impact on the proceedings pending in a given case.

No mechanisms, however, have been introduced to prevent the instances where a prosecutor is removed from a case and the case is referred to other office. A high-profile example of such practices is the case of the alleged CIA prisons in Poland. The Appellate Prosecutor’s Office in Warsaw, which has been conducting the investigation in this matter for over three years, starting from August 2008, has been instructed to hand the case over to its counterpart in Cracow. No reasons for such decision have been given.

Another proposal included in the bill is to dissolve the separate military prosecution offices and set up a new category of prosecutors, namely military prosecutors. These roles would be taken on by prosecutors who are officers in the military. They would be responsible for performing prosecutorial duties in cases falling within the jurisdiction of military courts or other military bodies and involving soldiers. However, the Prosecutor General would be stripped of any influence over the appointment of military prosecutors. Those would be called to office by the Minister of National Defence on the motion of the Supreme Military Prosecutor. Thus, it is difficult to talk about the abolishment of the military prosecution branch. According to the Labour Union of Polish Prosecutors and Prosecutorial Staff, this is rather an attempt to ‘squeeze’ this branch into the civilian prosecution system while maintaining the majority of its functional differences.

The draft amendment also regulates the question whether a prosecutor may hold other public posts. Under the proposed regulation, a prosecutor seeking to be appointed to a public office would have to resign from his or her current prosecutorial post, even if he or she is already retired. What is new, though, is the proposed addition of subsection 2a which allows former prosecutors to return to their previous roles provided they will automatically retire. According to the HFHR, the above modification is favourable compared to the previous regulation, whose wording, as confirmed by the interpretation given by the Supreme Court, could have resulted in the provision being held unconstitutional and in contravention of the free election safeguards laid down in the European Convention on Human Rights.

The bill also modifies the disciplinary procedure for prosecutors. The proposed regulation affords substantial rights to the Minister of Justice, including, among other things, the right to instigate disciplinary proceedings. “Sadly, the draft amendment fails to address the majority of our recommendations made so far, such as removing the secrecy of disciplinary proceedings for prosecutors”, says Ms Grabowska.