Authors: Martin Mycielski, Bartosz Kramek
Since the Law and Justice (PiS)-led United Right coalition took power in Poland in 2015, the country has witnessed an unprecedented level of politicization of the public prosecution service, which has been transformed into a tool serving political and personal interests of the ruling camp and its members. This resulted in a growing number of politically motivated cases of investigations carried out against those regarded as opponents of the government.
Among those targeted are not just active opposition politicians, but civic activists and NGOs, entrepreneurs, still-independent judges and prosecutors, even former officials harassed simply as a form of vengeance for their perceived connection with government critics.
The continuous changes to the criminal justice system (Criminal Code, Code of Criminal Procedure, Law on the Prosecutor’s Service) expand the powers of the prosecution, amplifying the so-called inequality of arms between the sides of the criminal proceedings and a general repressiveness of the system.
Regardless of the validity of the allegations brought by the prosecution, or lack thereof, the systemic, prevalent and deeply concerning issues can be distilled to the following:
● The complete lack of independence of the prosecution, symbolised by the combination of the functions of Minister of Justice and Prosecutor-General in the person of one of the leaders of the ruling coalition;
● The selective and instrumental nature of the investigations, motivated by political and propaganda goals of the ruling camp, as well as personal animosities of its leading representatives; a typical practice are propaganda attacks on persons regarding and against whom activities of investigative organs and special services are conducted (in the form of public broadcaster TVP programmes and other media centres supporting the government, with the participation of the Prosecutor-General and his subordinates as well as political management of special services); even if some charges from the list above may seem to possess some grounds, they remain the fruit of political motivation and in fact constitute examples of the so-called selective prosecution/justice;
This offends the elementary sense of justice in a situation when – often much more serious – cases infringing the interests of the ruling camp and its individual representatives are not taken up (as listed above);
● The progressing undermining of the right of defence and the principle of presumption of innocence through unprecedented extension of the prosecution’s powers at the expense of the rights of suspects/accused persons and even courts as well as via political and media (propaganda) attacks;
● The misuse of special services, especially the Central Anticorruption Bureau (CBA) and Internal Security Agency (ABW), used in cases that objectively have nothing to do with the interest of the State Treasury or the security of the state, concerning purely private entities – including small companies and non-governmental organisations – in cases of relatively little significance even in view of the scale of the alleged offences. The use of these services often serves form over function, resulting in the authority of these services being lost, which instead of combatting actual threats focus on imaginary and exaggerated ones, arbitrarily decided at the political level;
● The violation of the right to a fair and just trial: significant undermining of the independence of the judiciary through systematic removal and destruction of mechanisms that guarantee it, and personal harassment of disobedient judges, as well as consecutive appointments of judges loyal to the Minister of Justice/political power; this leads to a loss of faith in the independence of court rulings, i.e., in the very ability and willingness of the court to hear cases objectively;
● A deepening lack of faith in the certainty of court rulings due to unconstitutional judicial appointments contrary to the Constitution and EU law. It will be possible to challenge them in the future (rightly so) as this is provided for by the draft laws currently being drawn up by experts and the opposition, aimed at sorting out the situation of the judiciary with a view to depoliticising it and revoking the appointment of unlawful judges, appointed with the participation of the so-called neo-National Judiciary Council (neo-KRS).
In our latest report, the Open Dialogue Foundation and the THEMIS Association of Judges list and analyse the top 21 cases of malicious prosecution and abuse of power by the Public Prosecutor’s Service, as well as 8 most notable cases of its politically-motivated dereliction of duty. The report further includes a legal analysis of the changes in the Polish legal framework expanding the powers of the Prosecutor-General, making him a “super-prosecutor” with the power to hand-steer every case as he sees fit.