Charting Change
The Polish Prosecution Service in Transition
The ongoing reform of the Polish Prosecution Service, initiated by separating the roles of Prosecutor General and Minister of Justice, aims to restore the rule of law and enhance the institution’s independence and effectiveness. Yet, achieving this goal requires comprehensive reforms to address longstanding issues and external factors. Success hinges on legislative support, particularly from the Ministry of Justice, and overcoming resistance to change among prosecutors, marking a potential new era for the institution.
Perspective
Two years ago, my longtime research collaborator, Wojciech Jasiński, and I contributed to the Special Issue of DPCE online to present the state of the Polish Prosecution Service as of 2023. We described a highly hierarchical institution, undermined by disciplinary proceedings, coerced transfers of unyielding prosecutors, and unethical promotions of those willing to prosecute according to political desires. The institution was fully dependent on political influences, particularly due to the personal union of the Prosecutor General and the Minister of Justice. When we submitted our final draft in March 2023, we bitterly concluded that “[t]he governing majority does not seem to be interested in any open and substantive discussion on how to find a balance between efficiency and independence of the Public Prosecution Service in Poland and what should be its optimum place in the system of state institutions”. However, by the time we were to accept the final proofs, we were pleased to update our conclusions with a more hopeful passage. Today, nearly a year after the democratic opposition won the general election, I am asked to shed light on whether the hope expressed a year ago has been kept alive.
Decoupling Power: The Separation of the Prosecutor General and Minister of Justice
After taking power in December 2023, the new government prioritized restoring the rule of law in the country, including separating the positions of Minister of Justice and Prosecutor General. In early March 2024, the new Minister of Justice, Adam Bodnar, presented an action plan to the European Commission aimed at fixing the justice system in Poland and unblocking billions of euros in funds for the National Recovery and Resilience Plan (NRRP). Part of the plan included a promise to adopt a new bill to restore the independence of the Polish Prosecution Service.
It is worth noting that combining the functions of the Prosecutor General and the Minister of Justice should not explicitly be evaluated as negative. For example according to Recommendation (2000) 19 of the Committee of Ministers to Member States on the Role of Public Prosecution in the Criminal Justice System the plurality of models is not only allowed but appreciated. The document even contains basic guidelines for those states where the public prosecution is part of or subordinate to the Government (§13). It should also be made clear that the separation of positions is neither essential nor sufficient condition for the independence of any Prosecution Service. It must be combined with a clear delineation of the boundaries of supervisory interference in prosecutorial decisions, the implementation of effective disciplinary accountability, and clear rules for appointment to prosecutorial positions and their promotion. Thus, while in the Polish context the separation of the two positions seems politically, historically, and symbolically necessary, it should be merely an element of a broader effort aimed at a deep and systemic reform of the Polish Prosecution Service.
According to ministerial announcements, the draft was presented on June 25, 2024. The Prosecutor General is to be appointed by an absolute majority of the Sejm, with the consent of the Senate. Candidates for the position can be proposed by various entities, including at least 35 deputies, at least 15 senators, the National Council of Prosecutors, the General Council for Science and Higher Education, and non-governmental organizations. A key feature of the draft is the establishment of the National Council of Prosecutors, modeled after the National Judicial Council, to uphold the independence of prosecutors. This council includes not only prosecutors but also representatives from the President, the Speaker of the Sejm, the Speaker of the Senate, and the Minister of Justice. This structure aims to ensure broad representation from the professional prosecutorial community as well as from the legislative and executive branches of government.
The draft was subjected to significant criticism by the Venice Commission, which issued an opinion on October 14, 2024, at the request of the Minister of Justice. While the direction of the changes was deemed appropriate, the Commission emphasized that the draft does not address all the recommendations expressed in its previous opinion from 2017. Among the most significant shortcomings identified were the excessive influence of the legislative power, and thus politicians, on the selection of the Prosecutor General. The Commission suggested that the National Council of Prosecutors could be entrusted with conducting the selection process and creating a shortlist of candidates through a public call. Additionally, the Commission highlighted that the qualification criteria for the position of Prosecutor General should be clarified to ensure that candidates possess the necessary competencies for this high-ranking organizational role, including leadership skills. The Commission also stressed the need to provide procedural safeguards against the unjust removal of the Prosecutor General by eliminating provisions for premature dismissal based on reasons such as “violation of the oath” or “dignity of the office,” as these provide too much discretion and pose a risk of abuse. The involvement of Parliament in proceedings related to the lifting of immunity and surveillance was also questioned.
Currently, the Ministry of Justice’s focus is on adjusting the government draft to meet the expectations set by the Venice Commission. It appears that the desired changes do not go beyond the scope of corrections that the Ministry can implement without proposing an entirely new document. This brings us significantly closer to adopting the draft within the next few months. However, even if the draft secures the necessary majority in the legislative process, the key will be the stance of the President, who has so far seemed to support maintaining the personal union between the Prosecutor General and the Minister of Justice. Some hope for a change and the possibility of passing the law comes from the upcoming presidential elections in spring 2025.
Drafting new Law on the Prosecution Service
Even before the Venice Commission stressed the urgent need to proceed with a global reform of the public prosecution service in due course (§18), the Minister of Justice opened the way for creating a new model for the functioning and organization of the Prosecution Service and restoring the rule of law. The Commission for the Codification of the Judiciary and Prosecution Service, which was established in March 2024, was tasked with preparing an entirely new Law on the Prosecution Service and proposing changes that would not merely be cosmetic adjustments to the system but would fundamentally reshape the institution based on ensuring its independence, making it an effective body functioning within the criminal justice system while remaining in compliance with international legal standards for prosecution services – see among others: The Budapest Guidelines 2005, Venice Commission’s Standards on the Prosecution Service 2011 and US Guidelines on the Role of Prosecutors 1990.
The early version of the draft focuses on five key elements that will form the cornerstones of the new law. These are: external independence of the Prosecution Service, internal independence of the prosecutor, a three-tier organizational structure, a unified status of prosecutors, and professional accountability of prosecutors. Since the first element mirrors the developments in separating the Prosecutor General and the Ministry of Justice, I will focus on discussing the other elements of the puzzle. The autonomy and freedom of prosecutors in performing their duties are crucial for the internal independence of the Prosecution Service. Prosecutors should have the ability to oversee and conduct their assigned cases from start to finish, with case assignments being objective and based on transparent principles.
It is also essential to significantly limit the ability to reassign cases from one prosecutor to another. The proposed changes include abolishing the National Prosecution Office and establishing the General Prosecution Office, eliminating the regional level, and reducing the number of district prosecutor’s offices. Consolidating and reducing the number of local prosecutor’s offices aims to balance the workload and the number of duties, while maintaining branch offices to ensure public access to the prosecution service. The egalitarianization of the prosecutor’s profession will ensure that prosecutors, regardless of their workplace, are equal, performing the same or similar tasks, with their status differentiated by years of service and the nature of their duties. Finally, the building of the new system of professional accountability will be based on two aspects: institutional and individual. While the former includes transparency of procedures (e.g. case assignment) and transparency of results (timeliness), as well as institutional reporting based on big data, the latter encompasses the correctness, rationality, speed, efficiency, and effectiveness of actions, the culture of office conduct, the manner of communicating and justifying substantive decisions, and the process of professional development.
It is, however, crucial to acknowledge that the effective implementation of the law concerns reaching a consensus among prosecutors as a social group. Logic dictates that support for the implementation of the law from those who will operate under it is essential. This perspective is reinforced by the hurtful experience of implementing the major reform of the Polish Code of Criminal Procedure in 2015, which faced significant resistance from some lawyers, including prosecutors, that contributed to the reform’s failure in 2016. Therefore, it is evident that creating and implementing the new law should be carried out in consensus. I want to make it very clear that the debate on the draft is active, and the entire prosecutorial community will be soon invited to discuss its concept as well as individual elements.
Looking ahead…
The reform of the Polish Prosecution Service is unfolding amidst a debate concerning the status of Polish judges in the context of the rule of law which is capturing all the attention domestically and abroad. This timing is advantageous as it allows for more space and less public scrutiny, enabling a more thorough and thoughtful implementation of the necessary changes. To restore the rule of law in this institution, which has been grappling with stagnation and inertia for over 35 years, it is essential to implement functional and organizational changes. Only through these reforms can the Polish Prosecution Service overcome its longstanding challenges.
Yet, there are external factors that must be considered when looking at the future direction of changes and their significant impact on the law. The first is the provisions of the Polish Code of Criminal Procedure (CCP) and the changes concerning the role of the prosecutor. The success of the reform heavily depends on the direction taken by the legislature and developments made by the Codification Commission of Criminal Law. It is crucial to, at least, eliminate rules that maintain the supervisory role of higher-level prosecutors and eliminating the engagement of Polish prosecutors in crime scene investigations involving suspicious death as well all autopsies. I believe that effective cooperation between the two Codification Commissions is vital to achieve that.
Finally, real change for the Prosecution Service in Poland will only occur if the drafters can persuade the Ministry of Justice and legislators to adopt the proposed law. This initiative will undoubtedly face criticism from those who favor political influence over the Prosecution Service and those resistant to any change – we must be ready to counter such arguments. I hope that the Ministry of Justice will be ready to courageously look to the future and join the drafters in our belief that a new era has finally arrived for the Polish Prosecution Service.