Prosecutor or super judge?

The Sejm works on an amendment to the Excessively Lengthy Proceedings Complaint Act. A draft version of the amendment gives a public prosecutor the power to apply to the court for the reassignment of a case to a prosecutor’s office in order to have preparatory proceedings complemented.

This is already the HFHR’s second opinion on this amendment proposal. “In our first opinion, we critically assessed the argument that this piece of legislation may actually be considered an implementation of the ECtHR’s judgment in Rutkowski v. Poland. We think that it will not substantially contribute to the speeding up of the pace of proceedings in Polish courts”, says Marcin Wolny, an attorney working for the HFHR.

The direct reason for presenting the supplementary opinion was a self-amendment of the Ministry of Justice. At the final stage of legislative works, the Ministry added a regulation that enables a public prosecutor to apply to the court for the reassignment of a case to a prosecutor’s office in order to have preparatory proceedings complemented. According to the draft, a reassignment should be mandatory whenever new important circumstances are revealed, or if it is necessary to search for new evidence or perform other procedures whose purpose is to explain circumstances of the case.

The recent proposal does not include any appellate remedy against the court’s decision on whether to re-assign the case to a prosecutor’s office. Furthermore, the proposed regulation makes it possible to file the motion for reassignment also at the appellate stage of proceedings. If any of the above grounds for re-assignment appears, the court will be obliged to revoke the first instance decision and reassign the case to a prosecutor’s office in order to have the preparatory proceedings complemented.

“The prosecution service will be given a tool that will allow prosecutors to have a say on which court judgments are to remain and which should go away”, says Adam Klepczyński, a lawyer of the HFHR. “This is a violation of not only basic principles of the criminal process, but also Article 175 of the Constitution, which provides that justice is administered exclusively by courts”, Adam Klepczyński adds.

Concerns have also been raised over the temporal scope of the amendment’s application. According to the draft, the new provisions will apply to all proceedings, also those that had not been conducted under the adversarial model of the criminal process. “We think that the proposed changes should not apply to pending cases, which is a requirement stemming from the principle of citizens’ trust in the state and citizens’ trust in the law made by the state. Parties to criminal proceedings should not suffer the negative consequences of the legislator’s decision to adopt one or the other model of the criminal process”, Mr Wolny emphasises.

Finally, the proposed regulation, if enacted, would extend the duration of criminal proceedings. “In consequence of this, an individual’s right to have their case heard within a reasonable time may further be violated, which was recently brought to Poland’s attention by the European Court of Human Rights”, Mr Klepczyński sums up.