Resolution of the Extraordinary General Meeting of Members of the Association of Prosecutors „Lex super omnia” of January 26, 2019 regarding the obligation of the management board to send notifications – pursuant to the Code of Criminal Procedure or provisions on disciplinary liability of prosecutors – for acts involving abuse of power, persecution of prosecutors, members of the Association and the Lex super omnia Association of Prosecutors.
One of the fundamental freedoms guaranteed by each democratic state is the right of association, which gives citizens the opportunity to unite within organizations or associations in order to present mutually acceptable ideas and views and realize them.
This freedom is guaranteed in art. 22 International Covenant on Civil and Political Rights, art. 11 s. 1 of the Convention on Human Rights and Fundamental Freedoms. Complete freedom of association is also guaranteed by art. 58 s. 1 of the Constitution of the Republic of Poland and the provisions of the Act of April 7, 1989 Law on Associations (Journal of Laws No. 20, item 104 with later amendments).
On the basis of these regulations, the Association of Prosecutors „Lex super omnia” was established, which was the response of a part of the prosecutor’s community to organizational and legal changes introduced by the provisions of the Act of 28 January 2016 Law on the public prosecution service, destroying the independence of prosecutors and the prosecution service.
The creation of an independent organization met with an unfavourable reaction from the management of the prosecutor’s office, which using the available legal instruments, invigilated the process of its registration, and then systematically and consistently eliminated the members and supporters of the Association from all the bodies of the public prosecution service.
All the substantive initiatives of the Association were met with ostracism and reluctance and refused, constructive reviews of the functioning of the prosecutor’s office were met with silence and then with disciplinary or quasi-disciplinary actions, delegating prosecutors to lower-level units.
After the prosecutors’ degradations in March and April 2016, began the process of delegating prosecutors who remained defiant, to lower-level units without their consent. The first clear manifestation of this form of harassment was a recall from a delegation to the National Prosecutor’s Office, and then delegation to lower-level units of two public prosecutors from the Regional Prosecutor’s Office in Poznań. The reason for this decision was their opposition to the orders of the superiors issued in the case of the President of Gdańsk, Paweł Adamowicz.
A brilliant example of the use of a quasi-disciplinary penalty is one of the prosecutors of the District Prosecutor’s Office in Warsaw, who was deprived of the chance to become a judge and then delegated from the district prosecutor’s office to the regional prosecutor’s office (as time has shown, in essence, permanently) by the National Prosecutor Bogdan Święczkowski, acting out of personal reasons.
Several out of the many delegated prosecutors were detached from their families and relatives who required their daily, necessary support.
Almost every public appearance by members of the Association of Prosecutors „Lex super omnia” is being reviewed pursuant to the rules of disciplinary liability. The President of the Association’s Executive Board has had criminal proceedings under art. 231 § 2 of the Polish Criminal Code instigated against him. The behaviour of the General Prosecutor and the National Prosecutor, who during a press conference on 10 August 2017 specifically pointed to Mr Krzysztof Parchimowicz, giving his name, surname and function in the Association, as a person favouring the VAT-mafia, is very characteristic. This attitude of the highest superiors constituted a violation of his personal and professional dignity, as well as aimed at undermining his function and discrediting the entire Association.
In the current political situation, the Law on the public prosecution service is treated by the leadership of the prosecution service as a legal act more important than the Constitution and has become a tool for limiting the Association’s activity, civic activity of its members and disciplining them. With reference to the provisions of this law, the participation of prosecutors in the 5th and 6th edition of the Constitutional Week was condemned and limited.
The pressure of the explanatory and disciplinary proceedings is to de facto eliminate the Association from public debate, which violates the right to speak on public matters, referred to in art. 1 of the Law on associations.
A prominent example is the behaviour of the Deputy Disciplinary Prosecutor of the Attorney General for the Lodz regional district, who brought disciplinary charges against three members of the Executive Board of the Prosecutors Association „Lex super omnia” because they expressed disapproval of the statement issued by the Regional Prosecutor in Katowice about the initiation of preliminary proceedings against a judge hearing the criminal case of doctors accused causing the death of the Minister of Justice and Prosecutor General Zbigniew Ziobro’s father.
It should be stressed that this position was expressed on behalf of the Association, not individual members or members of its statutory bodies.
The Association of Prosecutors „Lex super omnia” upholds the assessment of the violation of law by the prosecutor of the National Prosecutor’s Office Tomasz Janeczek delegated to run the Regional Prosecutor’s Office in Katowice. The Extraordinary General Meeting of Members of the „Lex super omnia” Association views bringing disciplinary charges against members of the Executive Board, in connection with the aforementioned position, as an attempt to interfere in the functioning of a legally operating entity – an organization associating free citizens of the Republic of Poland.
The initiation of disciplinary proceedings in connection with statements not exceeding the limits of acceptable criticism remains in sharp contrast with international human rights standards, constitutional guarantees of freedom of speech and the right to speak in public discourse by members of the legally operating Association.
We believe that initiating disciplinary proceedings against members of the Association is aimed at causing the so-called chilling effect in the form of passive and obedient attitudes of prosecutors towards the instrumental use of the prosecutor’s office as a tool for conducting current political activity desired by the leadership of the public prosecution service.
Association of Prosecutors „Lex super omnia” will take all legal actions available to protect the values set out in the Preamble of the Law on Associations, i.e. realization of the freedom of association and the freedom of expression, guaranteed by the Constitution, and demand – in accordance with Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights – that we, as citizens of the Republic of Poland, are afforded equal right to participate actively in public life and express different views and pursue individual interests.
Therefore, we demand that the leadership of the prosecution service stops this type of harassment undermining the trust in public offices, as well as discontinues disciplinary proceedings initiated in violation of the applicable law.
We also demand a transparent system of promotions, discontinuation of the use of special modes in granting promotions by the Prosecutor General and total elimination of prizes and distribution of privileges to prosecutors.
The decisions made in this respect raise serious reservations in terms of their compliance with applicable legal regulations, an example of which is the practice of collecting housing benefits by prosecutors nominated to the National Public Prosecutor’s Office, which have previously only been due to prosecutors delegated to other posts, over the last 2 years. These reservations also apply to civil law contracts concluded with prosecutors for the execution of services which fall within the substantive tasks of the offices and departments of the National Public Prosecutor’s Office. Such activities should meet not only with criticism of our environment, or negative media assessment, but require a criminal-law evaluation by authorized bodies.
For these reasons, the Extraordinary General Meeting of the Members of the Association of Prosecutors „Lex super omnia” approving the current activity of the Management Board, strongly opposes this type of practices used by the Prosecutor General and the National Prosecutor, and reiterates that as prosecutors all of us vowed to faithfully serve the Republic of Poland, guard the law and uphold the rule of law. We cannot, as members of an organization associating prosecutors, remain inactive in the face of behaviour that violates the law.
Therefore, the Extraordinary General Meeting of Members obliges the Executive Board of the Association to:
1. take actions to analyse particular actions of the leadership of the Public Prosecution Service and file notifications of suspicion of committing a crime or a disciplinary delict if such actions are merited in particular cases,
2. submit information on the undertaken actions at the next General Members’ Meeting.