On the need to reform the prosecutor’s office

Sylweriusz M. Królak 2013-01-03

The need to change the way the Polish prosecutor’s office operates has been fully recognised as a matter of urgency. The course of the discussion currently in progress is influenced not only by the views of miscellaneous individuals and groupings participating in this debate, but also by current events whose often appalling character undermines the confidence of the man-in-the-street in the state and its institutions.  In saying this, it is not exclusively about scams like ”Amber Gold” but also about better or lesser known ”prosecutors’ mistakes”. It cannot but arouse dismay that in some cases the authorities did virtually nothing, while in others, on the basis of groundless suspicions (if only to mention the cases of Barbara Blida or Roman Kluska), the authorities sanctioned activities that led to tragic consequences.  Obvious questions arise in the wake of such events on the abuse of power, on the impunity of those in authority, and on the guarantee of civil rights. These questions arise especially in relation to the activities or omissions of public prosecutors, the special services and the tax authorities.  Important voices resounded on these issues in May 2012 during the conference entitled ”The role and place of the prosecutor’s office in a democracy based on the rule of law”, which took place under the aegis the Public Debate Forum initiated by the President of Poland.

The idea, expressed in the course of this debate, of making public prosecutors independent yet fully answerable to society, is in every way justified.  Such views mark out the appropriate direction for reforms to take in this area.  I am also looking at this from the perspective of personal knowledge regarding the observance of human rights standards in Poland, and especially the experience I gained in the international forum as the Polish government’s chief rapporteur on the UN Human Rights Committee in Geneva. The allegations that have been levelled in latter years against the Polish authorities in regard of their respect for the rule of law and human rights, in the main concerned such issues as the abuse of power by assorted special services and investigation authorities.  All too often, the authorities have groundlessly tapped telephones, installed bugging devices and invigilated people or have even made ”extraction arrests” (areszty wydobywcze) – i.e. speculative temporary arrests made on the off-chance of extracting any sort of information.

Under the Polish legal order, all such activities, though ostensibly relating to the police services, were and remain subordinate to the public prosecutor’s office  which, all too often, tends to abuse its powers.  In the interests of the rule of law in Poland, that points unequivocally to the need to break asunder the all-too-strong bond between the public prosecutor’s office and the special services. In the course of an inquiry, the prosecutor should be an objective supervisor and not a party to events, frequently shameful events.

That is why it is of exceptional importance that any future legislation regulating the mission of the public prosecutor’s office should be built on the basis of strictly defined values. Among these values, the protection of human rights should be loudly espoused.  It is also very important to speak not only about the independence of the prosecutor, but also about his personal responsibility for his own actions.  And it is not just about his independence and sovereignty in the political sense, but in all its aspects including his independence and sovereignty with regard to other powerful state authorities.  Primarily this refers to the various enforcement authorities wielding weapons of duress which they turn on other public institutions so as to induce the decisions they desire, but which are not necessarily advantageous to ordinary citizens or society at large.

To sum up, any amended act must give watertight guarantee of: the independence of the prosecutor’s office; the separation of the investigation and prosecution authorities; the introduction and observance of the principles of personal responsibility of both the official investigators and public prosecutors.

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