Prosecutor’s office under a dictatorship by Ewa Siedlecka, Polityka.

Prosecutor’s office under a dictatorship

Ewa Siedlecka, Polityka, 26 February 2021

Link to the original publication in Polish:

https://www.polityka.pl/tygodnikpolityka/kraj/2105301,1,jak-szykanowani-sa-prokuratorzy-krytykujacy-wladze.read

 

The prosecutors’ office has been turned into an instrument of exercising authority. It has been subordinated to the government. Zbigniew Ziobro, the prosecutor general, became the direct superior of every prosecutor, so he can order them to do whatever he sees fit with an investigation: initiate, discontinue, apply for detention, order interrogation, apprehension, admit an attorney to the case files or not, press charges or drag the case out for years. 90% of the staff has been replaced. Servitude is rewarded with promotions and rewards, independence is punished with transfers.

Divide and rule

In October last year, the prosecutor of the Regional Prosecutor’s Office in Warsaw, Wojciech Pełeszok was posted to the district prosecutor’s office for making a statement in court that he did not agree with the order of his superiors to apply for a three-month detention for participants of the Women’s Strike protest.

At the beginning of last year, the head of the prosecutors’ office in Zgorzelec, Artur Barcell, lost his position for asking his supervisor officially about the legal basis of the national prosecutor’s order that prosecutors should demand the exclusion of judges questioning the legitimacy of judicial nominations granted by neo-NCJ from cases. This is the fate of any prosecutor who takes advantage of his statutory right to request an order from his supervisor in writing. The principle of the prosecutor’s independence is systematically being violated.

Postings are a higher form of repression. Disciplinary proceedings include obvious repression. They have involved at least 23 prosecutors claiming their independence – but the activity of the Disciplinary Chamber of the Supreme Court is being examined by the Court of Justice of the EU, so it was clearly acknowledged that it might be better not to use disciplinary proceedings for the time being. But posting is a method of managing the staff of the prosecutors’ office, which is provided for in the Act on the prosecutors’ office.

So what is this about? About the destruction of the prosecutors’ office. About the disorganization, chaos and irrational management of public money. About the abuse of power resulting in acting to the detriment of the prosecutors’ office. And also: about breaching human rights, the rights of prosecutors and the rights of the victims of a crime. And about the civic right to protection against crime.

The authorities are afraid of losing control over the prosecutor’s office taken over in 2016. The Lex Super Omnia Association (LSO), which is defending the independence and apoliticality of prosecutors guaranteed by law, has only about 250 prosecutors – of a total of 6,000. And yet the authorities decided to give a demonstration of power: they delegated six LSO activists to prosecutor’s offices hundreds of kilometres from their homes on one day. This is not the first instance of a repressive posting, but the first of a group posting. They were given 48 hours to relocate. Everything was done to make it as publicized as possible. That every prosecutor in Poland would get know what will happen if he is not obedient. And the whole of this was crowned by President Duda, who – treating the principle of independence of public prosecutors, and their dignity with disinvoltura – said that if they don’t like it, they can change their profession.

The problem, however, is not only that PiS has a ‘divide and rule’ policy. But primarily in the fact that the top management of the prosecutor’s office – Prosecutor General Zbigniew Ziobro and National Prosecutor Bogdan Święczkowski – are working to its detriment.

The numbers are sufficient to prove this. Ziobro stopped publishing detailed annual reports that used to be submitted to the prime minister by independent prosecutor general Andrzej Seremet.[1] Perhaps he thinks this will make it impossible to file specific charges. But the Lex Super Omnia Association is diligently collecting data by requesting it in the procedure of access to public information. It encounters refusals from the National Public Prosecutors’ Office – e.g. under the pretext that the number of postings or the list of awards is not public information. But the LSO is collecting this data from the individual prosecutor’s offices, inferring from expenses, etc.

Posting-Harassment

Although posting is provided for in the law on the public prosecutor’s office, it must be substantively justified and serve the good of the prosecutor’s office. Meanwhile postings of prosecutors from the LSO are a form of harassment for their activities in the Association and have no substantive justification. Four of the posted prosecutors were taken from the Warsaw prosecutor’s offices, the most heavily burdened in the country, exacerbating staff shortages which are often more than half of the number of full-time positions. And they were sent to the other end of Poland, most often where this was not requested at all. The press officer of the National Prosecutor’s Office did not answer our question on how many postings arose from reported staff shortages; the heads of the two prosecutor’s offices admitted that they had not asked for reinforcements.

Prosecutors were sent on the principle of the further the better – e.g. Prosecutor Artur Matkowski was sent from Poznań to Rzeszów (500 km) instead to Śrem, 40 km away. Meanwhile, prosecutor Wrzosek was sent from Warsaw to Śrem, a distance of 310 km (she initiated an investigation into the case of the so-called postal elections,[2] which was taken away from her after a few hours).

There was no justification for the posting decisions; the situation of prosecutors’ families was not investigated, so the principles of the Labour Code and the Act on government officials, which are also binding on the prosecution service, were violated. Ombudsman, Adam Bodnar, intervened in this regard for an audit to be conducted by the National Labour Inspectorate.

If the Ombudsman’s allegations were to be confirmed, there would be material for an indictment regarding a malicious breach of employee rights (Article 218 of the Penal Code). The posted prosecutors, Katarzyna Kwiatkowska and Jarosław Onyszczuk from the LSO, announced a lawsuit to the labour court for unequal treatment. The Kraków prosecutor’s office summoned 13 judges for questioning for adjudicating in such a case filed with the Kraków labour court by another posted prosecutor from LSO, Mariusz Krasoń. The press officer of the National Prosecutor’s Office announced that this was about proceedings in the case of an overstepping authority – namely by the judges who ruled in prosecutor Krasoń’s favour. This looks like organized intimidation before posting further prosecutors from the LSO.

The posted prosecutors had to suddenly abandon the cases on which they were working. For example, Katarzyna Kwiatkowska (president of LSO) is leaving 12 cases – economic, multi-threaded, some of containing more than a hundred volumes of files. She says her posting came by fax and was a surprise to her manager. In other words: no one consulted him on whether and who could be taken from him. Cases of postings will have to be taken over by other prosecutors, which means the disorganization of work and tardiness. The same will happen in six months when the postings end.

Loss of millions

Postings also mean higher costs: one month of a posting is an additional (on average) PLN 4,000 per month. Looking at this on a scale of all postings in the prosecutor’s office, it adds up to gigantic amounts, spent without substantive justification.

According to the findings of the LSO, around 114 prosecutors are on ‘downward’ postings, while at least 800 are on ‘upward’ postings each year. The association estimates that a total of a quarter of all prosecutors are on postings each year. Spending on business travel alone in 2015 – at the time of Prosecutor General Seremet – amounted to just over PLN 9 million and there were two-thirds less postings than today. In 2019, postings cost nearly PLN 15 million. In addition to this, there are – sometimes much higher – salaries for ‘upward’ posted prosecutors. 282 prosecutors were posted in 2017 to the National Prosecutor’s Office itself, where the base salary (excluding allowances) is PLN 20,000. This is over PLN 6.7 million of extra spending per month in the National Prosecutor’s Office alone (PLN 20,000 plus PLN 4,000 for postings – times 282 prosecutors). Overall, approx. 360 prosecutors work at National Prosecutor’s Office – to reiterate: out of less than 6,000 of the total number of prosecutors. There were 140 of them at the time of Andrzej Seremet.

The prosecutors posted ‘upwards’ are sensitive to meeting the expectations of their benefactors. Therefore, e.g. they handled the case of Judge Igor Tuleya’s alleged crime (breach of the secrecy of the investigation).

Substantively unjustified postings, which are treated as corruption, cause staff shortages in district public prosecutor’s offices, which handle 90% of all cases. The result is that the prosecutors are transferring an increasing number of investigations to the police to handle themselves. According to last year’s LSO report, the police are handling 93% percent all investigations on their own. These are ordinary citizens’ affairs. While the management of the prosecutor’s office wants to be in control of all investigations of importance in the media and politically. They are handled by prosecutors, and every decision in selected investigations must go through a chain of acceptance. The National Public Prosecutor’s Office requested information two weeks in advance of all activities in such investigations, which drastically slows down these activities – prosecutors wait for approval in advance.

Posting disrupt the work of the prosecutor’s office. The effects are visible: in 2019 compared to 2014, the number of cases handled long-term increased by approx. 270% for cases lasting more than 6 months, and by 390% for older matters. For example: there were 106 pending cases lasting over 5 years in 2015, and 353 in 2019 (with a comparable inflow of cases), which is over three times more.

The excessive length of the proceedings means not only higher costs and extending proceedings, but also that the victims are additionally injured: by the prosecutor’s office, which breaches their right to a hearing within a reasonable time.

Wandering investigations

Another activity to the detriment of the prosecutor’s office is the transfer of cases – sometimes repeatedly – from one public prosecutor’s office to another. ‘The principle of transferring cases outside the local jurisdiction has become the norm. They are looking for places where National Prosecutor Bogdan Święczkowski will be certain that the case will be dealt in a way that is satisfactory for him,’ says Prosecutor Katarzyna Kwiatkowska.

For example, the case against the manager from the Ikea network for the dismissal of an employee who posted quotations from the Bible about homosexuality on the Internet was given to Prosecutor Katarzyna Skrzeczkowska, who had been posted from the District Prosecutor’s Office in Nowy Dwór Mazowiecki to the Regional Prosecutor’s Office in Warsaw Praga. She brought charges against the manager. She also received a case of political corruption in Wołomin, in which Deputy Prime Minister Jacek Sasin’s name is mentioned. Prosecutor Skrzeczkowska also received the investigation in the case about hate speech against Ukrainians in connection with the Volhynia massacre after it was taken away from prosecutor Marcin Młynarczyk, who wanted to press charges .

The most recent example of a transfer is the case called the Giertych scandal. The prosecutor’s office is charging 11 people with the embezzlement of PLN 92 million from the property development company, Polnord. One of the suspects is businessman Ryszard Krauze, whose proxy is Roman Giertych[3]. The case has been circulated around successive prosecutor’s offices since 2017 because, despite pressure from their superiors, the prosecutors could not see any crime. The case’s journey started in Warsaw, passed through Wrocław and ended up in Poznań. A decision was made there to press charges and file motions for arrests, but courts did not apply the arrests because they could not see any crimes. Meanwhile, they held that the apprehensions – including Attorney Giertych’s – were groundless. Now, the case is in the hands of the Regional Prosecutor’s Office in Lublin, and is handled by a team of prosecutors from various parts of the country. The investigation regarding the hate group at the Ministry of Justice was transferred from Lublin to Świdnica. Former Deputy Minister of Justice Łukasz Piebiak, who was responsible for leaking the personal details of judges within this scandal, is running for membership of the neo-NCJ and for the office of judge of the Supreme Administrative Court.

The Regional Prosecutor’s Office in Szczecin received the case of SKOK[4] Wołomin. It has just accused Wojciech Kwaśniak, the former deputy head of the Polish Financial Supervision Authority, of failing to fulfil his duties. This was the same man who, was almost beaten to death by hired thugs for disclosing the SKOK Wołomin scandal.

The case of the destruction of recordings in the possession of the prosecutor’s office from the surveillance of ex-Prime Minister Beata Szydło’s road accident in Oświęcim, was transferred to Nowy Sącz and entrusted to a newly appointed prosecutor who was previously a legal counsel, working for a PiS councillor. And he has – obviously – been posted to the Regional Prosecutor’s Office in Nowy Sącz.

The case reported to the Polish prosecutor’s office by the EU agency, OLAF: extortion of money by PiS MEP Ryszard Czarnecki for business travel went to Zamość. The leak of personal data of judges and prosecutors from the National School of Judiciary and Public Prosecution, managed then by Małgorzata Manowska (currently First President of the Supreme Court), was divided among two prosecutor’s offices. Neither of them has territorial jurisdiction for the matter in Kraków. The case is being handled in Lublin and Rzeszów. 400 judges and prosecutors have already become victims of extortion with the use of their names or threats.

Cases are also wandering around when they should be discontinued, but the management of the prosecutor’s office is afraid of doing this. Ziobro fell into his own trap: by giving himself authority over every investigation in the country, he is personally responsible for all of them. The discontinuation of a case in the media would be a burden on him, so cases are prolonged indefinitely. For example, an investigation into the directing of the commitment of Krzysztof Olewnik’s murder passed through Warsaw, Olsztyn and Gdańsk, and has now ended up in Kraków. The case of the death of Jolanta Brzeska, an activist of the tenement movement from Warsaw – unexplained after nine years – was transferred to Gdańsk.

Transferring cases out of the jurisdiction may be used to breach the principle of prosecutor’s independence. And causes a breach of the rights of the parties to the proceedings, whose access to files is hindered and they are forced to travel,’ says prosecutor Jacek Bilewicz from LSO. He is in litigation with the prosecutor’s office because – like 22 others prosecutors – after the liquidation of the General Prosecutor’s Office in 2016, he was moved two levels down. The case currently looks like shadow boxing, because the national and general prosecutors say they are not parties to this case, as they do not have ‘the capacity to be sued’  as employers. Even though it was they who made the decision on transfer.

The law on the public prosecutor’s office does not have a definition of an employer.

Who signs what?

The prosecutor’s office is ruled by national prosecutor Bogdan Święczkowski, Zbigniew Ziobro’s trustee, his friend from university. It was he who signed the postings of the LSO prosecutors. It is he who exalts and orders transfers. It is he – the first deputy of the prosecutor general – who appoints public prosecutors, entrusting them with duties, as deputy disciplinary commissioners for prosecutors. Because the entrustment of duties can be withdrawn at any time, while disciplinary commissioners appointed in this way normally have terms of office provided for by law. Therefore, an acting commissioner is more obedient. Out of 11 prosecutor general’s deputy disciplinary commissioners, 10 are only acting commissioners. They decide on disciplinary proceedings for rebellious prosecutors.

It is Święczkowski who issues guidelines to prosecutors, e.g. to charge participants of the Women’s Strike with creating a universal threat to health and life in connection with the pandemic. Or – to demand the removal of judges, who want to investigate the legality of the appointment of judges by the neo-NCJ, from cases.

Święczkowski – together with Ziobro – is also responsible for the present condition of prosecutor’s office, whose only (albeit questioned by LSO) success is the increase in budget revenues from the prosecution of VAT frauds.

During his time as head of the Internal Security Agency, he reportedly boasted that he was smart and does not sign anything for which he may be held liable. However, he certainly signed the postings of the prosecutors.

 

[1] Ziobro’s predecessor as the Prosecutor General,

[2] These are the elections that the ruling camp intended to hold in May 2020, despite the possibility of exposing the population to the spread of the pandemic,

[3] Former Deputy Prime Minister, currently an active lawyer and a staunch critic of the activities of the ruling camp, who represents several politicians from the current opposition parties in court proceedings,

[4] The largest parabank system in Poland, considered by many journalists to be associated with PiS