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HFHR’s opinion on prosecution service reforms

“The merger of the offices of the Prosecutor General and Minister of Justice, coupled with an extension of ministerial powers to influence the course of individual criminal cases may pose a threat to the fairness of criminal process and human rights and freedoms”, reads the HFHR’s opinion statement on the proposed reform of the prosecution service.

According to the Foundation, instead of improving the current model, by – among other things – strengthening the position of the independent Prosecutor General or expanding parliamentary powers to supervise the head of the prosecution service, the proposal attempts to completely reverse the changes introduced in 2009.

“The fears of abuse that justified the chapter introduced to the 2009 law are very much valid today”, notes Barbara Grabowska-Moroz, a lawyer of the HFHR. “Although in many countries such as Germany or France prosecution service is subordinate to the executive branch, the minister of justice never personally takes the office of the Prosecutor General”, Ms Grabowska-Moroz adds.

The proposed reform gives more authority to the Prosecutor General, enabling higher-level prosecutors to issue binding instructions on procedural matters to their subordinates. Moreover, the proposal grants to the Prosecutor General broad powers to shape the service’s personnel policies, including the right to appoint and dismiss heads of local units of the prosecution service without the need to organise any open competition for candidates.

“The growing influence of the Prosecutor General over the way rank-and-file prosecutors handle proceedings is not accompanied by the reinforcement of measures protecting against violations of prosecutorial independence, such as the right to file complaints to the National Council of Prosecutors”, Barbara Grabowska-Moroz observes. She expressed the Foundation’s opinion that safeguarding prosecutors’ independence is crucial for ensuring that a prosecutor takes responsibility for the outcome of the case.

Concerns are also raised by the proposed provision that enables the Prosecutor General to disclose information on pending pre-trial proceedings as a media communique. According to the ECtHR’s jurisprudence, authorities should inform the public about criminal investigations in progress “with all the discretion and circumspection necessary if the presumption of innocence is to be respected” (Garlicki v. Poland).

“Most importantly, this power may not be used as a tool in the everyday political activity of the Minister of Justice/Prosecutor General”, Ms Grabowska-Moroz emphasises.

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