THE STICK METHOD – THE ‘GOOD CHANGE’ SYSTEM OF PERSECUTING INDEPENDENT PROSECUTORS

Ladies and Gentlemen,

The Lex Super Omnia Association of Prosecutors is carefully watching and analysing the reality of public prosecution as the institution intended to guard the rule of law, responsible for prosecuting crime, and supervising preparatory proceedings.

In order to pursue their statutory goals, public prosecution services should be guided by top standards, reliability, honesty, and justice, also in its own organisation, the principles governing its operations, and its relations with the employees.  Yet, as far back as since 2016 and promulgation of the regulations of the new Act on the Public Prosecution Service, including the introductory secondary legislation, the prosecution services have not met the standards.  The first, earlier unmet, absolutely arbitrary and inequitable decisions to demote prosecutors of the National Public Prosecution Service and Appellate Public Prosecution Services revealed that the time of the new prosecution regime would be the time of negative selection targeted at persons instead of merits.  As the time went by, the institution also initiated the process of personnel replacement and restricting prosecutors’ self-governance turning the institution of prosecutors’ self-governance into an illusion.

In addition, on an unprecedented scale, official proceedings and disciplinary procedures began to be launched against prosecutors who dared speak their minds loud and clear and question the solutions promoted by the senior management of the prosecuting services for good reasons.  The shuffling of membership of the disciplinary courts in such a way as to ensure prevalence thereon of prosecutors performing functions at individual organisational units of the prosecuting services has caused that the verdicts reached by the courts, as well as the activities of the disciplinary ombudspersons are scarred with grave doubt as to the actual independence of the persons holding the function posts and their capacity to make decisions based solely on the accumulated evidence material and regulations of the law.

The assortment of the actions taken by the senior management of the prosecution service is complete with delegations of prosecutors to units distant from their residence.  All this is done without any explanation or reasons, without listening to the prosecutors’ arguments, which deprives them of their empowerment and reduces them to pawns moved about the board of the game played by their superiors.

In one of his interviews, the National Prosecutor declared that the prosecution services would be guided by the ‘stick and carrot’ rule.  Following the earlier publications by the Association where we described the ‘carrot’ elements, we here place in your hands a study of the system of exerting pressure on prosecutors, restricting their independence in this way, and employing various forms of persecution.

Alas, this is because the time has revealed that the ‘stick’ is by far most dominating with respect to independent prosecutors in the prosecution services.

Respectfully yours,

Management Board, Lex Super Omnia Association of Prosecutors

I LET US START FROM THE BEGINNING …

Christmas time in cozy atmosphere of the family, anticipation of the oncoming New Year….

The idyllic air of the point in time, sublime as it is, was disturbed by news shared on the telephone and by emails on the publication of two bills on the Sejm website: Act on the Public Prosecution Service (Sejm print No. 162) and Regulations enacting the Act on the Public Prosecution Service (Sejm print No. 162A).

What had been a subject of gossip and speculation, particularly among the prosecutors, became a fact on the Christmas Eve of 2015.

The bills on the Public Prosecution Service and the Regulations enacting the Bill were aimed at introducing allegedly fundamental changes to the system and organisation of the prosecution services.  The authors of the bill were said to determine comprehensive changes to the form and operating principles of the prosecution service, its structure, hierarchy, reporting lines, operations, including procedural and substantive law competencies of prosecutors in the preparatory and judicial proceedings, the position and role of prosecutors, including the principles of their appointment and dismissal, the options of delegating them, the required qualifications, and their rights and obligations.

In the opinion of the authors of the bill, the arguments supporting introduction of such fundamental changes were as follows: ‘the heretofore Act on the Public Prosecution Service was adopted in 1985 and has been subject to numerous amendments.  Today, it does not meet the needs of a modern law-governed state, or the challenges related to the development of technology and various kinds of criminal activities, particularly of terrorist nature or of the organised financial and economic crime type’ (p. 88 of the bill).

The drafted amendments were also aimed at reorganising the structure of the prosecution service – abolishing the General Prosecutor’s Office with the independent Prosecutor General heading it, and forming the National Public Prosecution Service in its place, with simultaneous merger of the functions of the Minister of Justice and Prosecutor General; moreover, they were aimed at liquidating appellate public prosecution services and replacing them with divisional public prosecution services.

The nearly 90-page long bill on the public prosecution service was appended with 10 pages of an explanatory memorandum containing but vague statements which explained nothing and referred to opinions of unknown experts, apparently laying the grounds for the legality of the proposed changes.  From time perspective, one can clearly state that substantive arguments in support of the proposed solutions were simply missing.

The above bills were submitted as parliamentary bills, which translated to omission of public consultations which might have served as a forum of thorough evaluation of the functioning of the amendments to the Act on the Public Prosecution introduced in 2009.  In this way, the voice of the prosecutor community was also eliminated, thus demonstrating its disregard and neglect.

The reporting MP was Michał Wójcik who announced self-correction consisting in deletion of Art. 75 of the Act of 27 July 2001 – The Law of the Common Court System from Art. 127(1)of the Bill on the Public Prosecution Service.

How did Michał Wójcik, MP justify the above change?  He stated that it was an obvious clerical mistake.  He indicated that the text of the bill happened to contain a reference to Art. 75 of the above-cited Act, while the text was identical with that of Art. 94 of the Bill on the Public Prosecution Service.

One should note that Art. 75 of the Act of 27 July 2001 on Organisation of Common Courts regulated the issues connected with the transfer of a judge to another place of posting.  In two cases, namely the transfer of a judge without his/her consent to another place of posting, as specified in § 2(1) and 2(2), he/she had the right to appeal from the decision of the Minister of Justice to the Supreme Court.  Prosecutors were deprived of the right, since Art. 94 does not contain any such provision.  A mere clerical mistake!

An analysis of the works of the Sejm committees and sub-committees revealed above-standard active engagement of the then undersecretary of state at the Ministry of Justice, Bogdan Święczkowski, who participated in the works of the Justice and Human Rights Committee, sub-committees, and in the works of the Senate.  Inquired in the matter by the senators, he said: ‘The Ministry of Justice assisted the proposers with substantive and legislative knowledge, but since it is an MP bill, I cannot discuss the reasons of processing the act at this specific pace.  I can only be happy because the Minister of Justice believes the sooner the new Act on the Public Prosecution Service comes into force and effect, the better’ (stenographic record of 29 January 2016).

In his interview for the Gazeta Prawna Daily of 24 January 2016, Bogdan Święczkowski did not conceal the fact that the Ministry of Justice where he was an undersecretary, quote: cooperated closely with the MPs in the compilation of the bill’.  Engaged in the Sejm works on the act were also, e.g.: Tomasz Darkowski, director of the Legislation Department, Ministry of Justice, today a lawyer at the Kopeć and Zaborowski Law Office, Małgorzata Bednarek, member of the ‘Ad Vocem’ Independent Association of Prosecutors, now a judge of the Disciplinary Chamber at the Supreme Court, and Jacek Skała, Chairman of the Prosecutors and Prosecution Employees Trade Union, today a prosecutor at the Kraków Divisional Public Prosecution Service delegated to the National Public Prosecution Service.  Both actively supported Bogdan Święczkowski backing the processed bills and not voicing any vital substantive comments or reservations.  That paid them well, since as indicated above their professional careers accelerated substantially, and the organisations they represented were successfully pacified.  Michał Wójcik, MP, was soon appointed Vice-Minister of Justice.  Sitting in the government bench during the works on the acts of law was prosecutor Beata Skonieczna subsequently appointed deputy director of the Presidential Office, National Public Prosecution Service; she was awarded two higher titles, including one in the prize mode, plus generous financial gratifications.

On 28 January 2016, both acts of law were adopted by the Sejm by 236 votes for, with 209 against and 7 abstentions.  On 1 February, the Senate adopted the Act with no corrections, and on 12 February 2017 it was signed by the President of the Republic of Poland.

An analysis of the progress of the legislation works shows that the Act on the Public Prosecution Service and the Regulations enacting the Act on the Public Prosecution Service were adopted after less than a month’s work, without due thought, ignoring any opinions or positions of the lawyer community, non-governmental organisations, or the Sejm Office of Analyses, and skipping public consultations.  In retrospect, this is probably nothing surprising against the observed legislation processes on other acts of law, but it was startling at the time, perhaps because the prosecution services were dying abandoned and in silence, unfortunately with all lawyer communities, primarily the prosecutors themselves, remaining mute.  Perhaps, they deserved it to an extent; yet, they had not received proper support at a proper moment.  Support came a bit later, and obviously words of true gratitude should be extended therefor.

Are the Acts truly future-proof, addressing the 21st century needs, as Bogdan Święczkowski used to repeat again and again, meeting the EU recommendations, guaranteeing the right to speak one’s mind on topics connected with the functioning of the broadly construed judicial and law-and-order systems?

The Lex Super Omnia Association of Prosecutors devoted three of its previous reports available online to the functioning of the prosecution services under the rule of these allegedly modern acts of law.

II DEGRADATIONS, DELEGATIONS, WHAT ELSE?

The two acts of law: the Regulations enacting the Act on the Public Prosecution Service and the Act on the Public Prosecution Service itself, promulgated by the Parliament at an express pace and signed by the President came into force and effect on 4 March 2016.

At the time, many experienced and competent prosecutors voluntarily retired.  Some of them had experienced working with the current management of the prosecution services, knew their stratagems, and were most likely guided by that experience when making the uneasy decision to retire from service.

Based on the data obtained it has been found that in the period between 1 January 2016 and 15 March 2016 166 person retired, including:

• 16 prosecutors of the Prosecutor General Office,
• 30 prosecutors of the Appellate Public Prosecution Service,
• 75 prosecutors of the Regional Public Prosecution Service,
• 45 prosecutors of the District Public Prosecution Service.

Following 15 March 2016, further 28 persons retired, which means that by 15 April 2016 194 persons in total had made the decision.

To visualise the scale of the phenomenon, the above data should be compared to the numbers of prosecutors of the ordinary organisation units of the prosecution services terminated on retirement terms in the years 2010 – 20151:

–      2010 – 118 persons,

–      2011 – 118 persons,

–      2012 -125 persons,

–      2013 – 104 persons,

–      2014 – 128 persons,

–      2015 – 144 persons,

–      2016 – 305 persons,

• by 30 June 2017 – 128 persons.

The figures lead to the conclusion that in the period from 1 January 2016 to 15 March 2016, and then before 15 April 2016, the personnel of the prosecution services dwindled by 194 persons because of their decision to retire; in other words, over the period of an odd two months the decision was made by more persons than e.g. over the entire year 2015.  The figure for the whole 2016 stood at 305 prosecutors, highest versus the years 2010 – 2015.

The retirement premiums for the prosecutors who retired in the period from 1 January 2016 to 15 March 2016 added up to PLN 14,481 thousand.

1 The National Public Prosecution Service has data as of the year 2010.

The next step taken by the management of the National Public Prosecution Service was to demote prosecutors of the Prosecutor General Office and Appellate Public Prosecution Service.

To that aim, the act promulgating the Regulations enacting the Act on the Public Prosecution Service contains provisions dissolving the Prosecutor General’s Office and the appellate public prosecution services.  In reality, the dissolution, or actual liquidation, proved nominal in nature.

This is because the four-level organisational structure of the ordinary units of the prosecution services was retained, the same as the previous number of the district public prosecution services (357) and regional prosecution services (45).  The number of divisional public prosecution service units did not change; their current number is the same as the 11 former appellate public prosecution service units.  No change either was introduced to the functional scopes of all units, divisional public prosecution services included.  Their locations, i.e. seats, remained the same too.  Because of the identity of the tasks, the unit’s organisational structure did not undergo any major modifications.  What did change, was the numbering of the departments, another department was added to deal with financial and fiscal offences, and an independent section was formed for medical malpractice.  One needs to stress that departments dealing with commercial crime had already been in place, e.g. at the Warsaw Appellate Public Prosecution Service, and their creation did not require any statutory changes save for a disposition on the organisational structure of the unit.  Hence, the appellate public prosecution services were actually not liquidated, as their legal successor, the divisional public prosecutor, inherited the tasks and the authority unreduced at all, he also inherited all assets: the buildings, computer equipment, and other fittings, just as the liabilities, the fact corroborated in Art. 65 of the Regulations enacting the Act on the Public Prosecution Service.  Further inherited was the organisational system and the prosecutor staff performing their official duties at the units.  Moreover, one should note that the number of predicate jobs was not reduced compared to the number of posts in the former appellate public prosecution services.  In general, the posts were retained in the same number, the fact corroborated by the data obtained from all divisional public prosecution services as at 4 March 2016 and 30 June 2017:

1. Lublin Divisional Public Prosecution Service – 31 and 31 predicate jobs,
2. Warsaw Divisional Public Prosecution Service – 55 and 55 predicate jobs,
3. Gdańsk Divisional Public Prosecution Service – 47 and 48 predicate jobs,
4. Katowice Divisional Public Prosecution Service – 45 and 44 predicate jobs,
5. Wrocław Divisional Public Prosecution Service – 39 and 40 predicate jobs,
6. Poznań Divisional Public Prosecution Service – 32 and 32 predicate jobs,
7. Kraków Divisional Public Prosecution Service – 32 and 32 predicate jobs,
8. Szczecin Divisional Public Prosecution Service – 28 and 28 predicate jobs,
9. Białystok Divisional Public Prosecution Service – 23 and 23 predicate jobs,
10. Rzeszów Divisional Public Prosecution Service – 17 and 17 predicate jobs,
11. Łódź Divisional Public Prosecution Service – 31 and 31 predicate jobs.

This apparent structural change of the prosecution services provided the basis for a peculiar verification of those prosecutors who fell into disfavour of the current management of the prosecution services due to their stance, diligent performance of their official duties, and abidance by the law in the years 2005 – 2007.

Demotion affected 124 prosecutors in total.  Among them were 19 prosecutors of the dissolved military prosecutor services, including those who took part in the investigation of the Smolensk plane crash.  4 of them (the press spokesman of the Chief Military Prosecutor’s Office and the prosecutors who flew to Smoleńsk or Moscow after 10 April 2010) were dismissed from their prosecution positions, transferred to the personnel reserve, and assigned to perform their official duties at line military units, e.g. at the 10th Armoured Cavalry Brigade in Świętoszów and 2nd Mechanised Brigade in Złocieniec.  The decisions were made immediately enforceable in view of a ‘vital public interest’ which remained unspecified, and in the reasons of the decisions it was laconically stated that they had been made ‘to accommodate the needs of the Armed Forces’.  The then Minister of National Defence, violating the statutory ban, used his own decision (in other words and act of internal regulations binding only in the armed forces) to transfer them to the personnel reserve (or the ‘MND’s freezer’ reserved for regular army men) and at the same time ordered them to perform the duties of troopers or gunners in line military units stationed in nooks and crannies of Poland.  When doing that, the prosecutors were handed in decrees signed by the Minister of Justice, Prosecutor General, of their transfer to district public prosecution services.  From then on, they operated in the realities of two mutually exclusive acts of law, i.e. the MND decision which transferred them to the personnel reserve and assigned them to the line military units, and the decree of the Prosecutor General which transferred them to the district public prosecution services.  The prosecutors reported at the district public prosecution services.  Upon resignation of the Minister of National Defence, Antoni Macierewicz, decisions were issued to transfer the prosecutors out of the Ministry, to the civil institution of the prosecution services.

The demoted prosecutors did not receive the deeds of their appointment to the then held official positions, and were deprived of the right to a higher promotion tier.  This was an additional sanction, this time of the financial nature.

The regulations adopted in the act of the Regulations enacting the Act on the Public Prosecution Service which did not define the causes of prosecutor demotions, or order providing the reasons of the decision, or confer the right to challenge the decision by appeal to the court, violated:

• Art. 2 of the Constitution which stipulates that the Republic of Poland is a democratic state under the rule of law, translating the rules of social fairness to practice,
• Art. 45(1) of the Constitution which guarantees each citizen the right to have his/her matter tried justly and publicly, without any undue delay, by the competent, independent, unbiased, and impartial court,
• Art. 77(2) of the Constitution which stipulates that no act of law can preclude anyone from claiming the violated freedoms or rights at court,
• Art. 6(1) of the Convention of 4 November 1950 for the protection of human rights

and fundamental freedoms which guarantees the right to fair trial.

In addition, violated were the principles of equal treatment and non-discrimination laid down in the Labour Code and stemming from Art. 32 of the Polish Constitution, which reads that all are equal before the law and have the right to be treated equally by the public authorities.

In this way, prosecutors were forced to resolve to take actions at court to have the substance of their employment relationship defined.

The prosecutor demotion action was the first and largest statutorily organised operation of persecuting public officials, prosecutors, consisting in imposing a sanction on them, extraordinary as it was not being defined in the catalogue of sanctions given in Art. 142 Act on the Public Prosecution Service, without holding the disciplinary procedure, and depriving them of the right of defence or of appeal from the court judgment.

Public officials acting in the name and on behalf of the Polish State were treated as things, their professional legacy ruined, their employee dignity, good name, and honour violated.

The situation of the demoted prosecutors was noted by Prof. Adam Bodnar, National Ombudsman, who filed a motion in the matter with the Constitutional Tribunal on 4 May 2016 pointing out that, e.g. a prosecutor demoted pursuant to the regulations of the Act on the Public Prosecution Service should be guaranteed the option of lodging an appeal with the court requesting verification of the potentially discriminating decision of transfer to a lower position.

The demotion decisions were also glaringly in contravention with the recommendations of the Council of Europe of 6 October 2000 on the role of public prosecution in the criminal justice system and with the opinion of the Consultative Council of European Prosecutors on the European standards and principles building the status of the prosecutor (the so-called Rome Charter) of 17 December 2014.

One should quote point XII of the document: ‘The recruitment and career of prosecutors, including promotion, mobility, disciplinary action and dismissal, should be regulated by law and governed by transparent and objective criteria, in accordance with impartial procedures, excluding any discrimination and allowing for the possibility of impartial review’.

The plans further included verification of the prosecutors of the regional public prosecution services.  To that aim, a change of the name of the regional public prosecution services to field services was considered, although the idea was abandoned.  Presumably, it was reasoned that the Act on the Public Prosecution Service contained such legal instruments which, once properly interpreted, would enable ‘flexible allocation of the predicate staff’ of the level.

The practice showed that the institution of prosecutor delegation was taken advantage of to that aim.  Pursuant to Art. 106(3) of the Act on the Public Prosecution Service, in substantiated circumstances, considering the demand for personnel of the ordinary organisational units of the prosecution service, the Prosecutor General or the National Public Prosecutor may delegate a prosecutor without seeking his/her consent for the period of 12 months in any year to the prosecution unit in the locality where the delegated person resides, or to the prosecution unit in the locality being the seat of the prosecution unit employing the delegated person.  A comprehensive analysis of Art. 106 of the quoted Act indicates that when doing so he should take into consideration the prosecutor’s qualifications specified as the basis of the decision in § 1 of the said regulation.

Ensuing from the above regulations, delegations of the kind should be exceptional and take account of the competences of the delegated prosecutor, and the reason thereof should stem from the demand for personnel.

The response to parliamentary interpellation No. 9127 of 4 January 2017 reveals that 160 prosecutors were delegated without seeking their consent to equivalent organizational units of the prosecution service and to units of lower levels after 4 March 2016; 116 prosecutors have completed their delegation.

The figures, possibly incomplete, accumulated by the Lex Super Omnia Association of Prosecutors in accordance with the Act on Access to Public Information show that in the period from 4 March 2016 to 31 December 2019 at least 60 prosecutors were transferred to units of lower levels as a peculiar disciplinary sanction for a period of more than 3 years or shorter, all being equally severe to themselves and their nearest and dearest.

To give an example, one should name Prosecutor Waldemar Osowiecki, former Regional Public Prosecutor in Płock, i.e. of the unit which laid charges against Mr Zbigniew Ziobro.  Following consecutive procedural actions, the proceedings were discontinued.  In the times of the so-called ‘good change’ in the prosecution services, Prosecutor Waldemar Osowiecki was delegated to the Częstochowa – North District Public Prosecution Service in Częstochowa for the period from 11 July 2016 to 10 January 2017.  Then, without his consent, he was delegated to the Płock District Public Prosecution Service for the period from 11 January 2017 to 10 January 2020, and since 11 January 2020 he has been delegated to the Ciechanów District Public Prosecution Service.  He is still doing the delegation now.  Noteworthy, the Prosecutor is the father of three minor children.

Delegated for a comparably long time to the Warsaw – Mokotów District Public Prosecution Service in Warsaw was also Mr Andrzej Piaseczny, prosecutor of the Warsaw Regional Public Prosecution Service.  He now serves at the Warsaw Regional Public Prosecution Service.

One should also mention the delegation of Prosecutor Sławomir Piwowarczyk from the Łódź Regional Public Prosecution Service who was delegated to the Łódź – City Centre District Public Prosecution Service as of 3 April 2016.  The duration of his delegations are extended on an on-going basis.

Mr Piotr Wójtowicz, prosecutor of the Wrocław Apellate Public Prosecution Service and former Regional Public Prosecutor in Legnica was first demoted in April 2016 from the Wrocław Apellate Public Prosecution Service to the Legnica Regional Public Prosecution Service (decision of Prosecutor General, Zbigniew Ziobro, ref. PK IX K 103.661.2016 of 11 April 2016); then by virtue of the decision issued by the Regional Public Prosecutor in Legnica, Zbigniew Harasimiuk who succeded Piotr Wójtowicz in the position of the Regional Public Prosecutor in Legnica (ref. PO IV WOS 1122.26.2017 of 26 May 2017) he was delegated to the Legnica District Public Prosecution Service for the term of 2 months.  On 6 July 2017, the delegation was extended for another 4 months by the Deputy Prosecutor General, Marek Pasionek, acting in the place of the National Public Prosecutor (ref. PK IX K 1122.2522.2017).  The causes of the delegation were not disclosed or served on the concerned.

The institution of prosecutor delegation is also employed to make prosecutors reflect on their approach inconsistent with the line binding in the prosecution services.

To give an example, one should point to the actions taken by the superiors of Mr Piotr Skiba, prosecutor at the Warsaw – City Centre District Public Prosecution Service, who commenced proceedings in the matter of insulting Prof. Małgorzata Gersdorf, the first President of the Supreme Court, by a journalist of a public TV station, Cezary Gmyz.  The case was transferred to the Warsaw Regional Public Prosecution Service and the prosecutor was instantly delegated to the Grodzisk Mazowiecki District Public Prosecution Service for 12 months.

Ms Anna Chomiczewska, now prosecutor at the Złotoryja District Public Prosecution Service, for years appreciated head of the Legnica and Złotoryja District Public Prosecution Services, was dismissed from the position of the District Public Prosecutor in Legnica in March 2016.  In May 2016, on her consent, she was delegated to the position of the Head of Investigation Division I of the Legnica Regional Public Prosecution Service where she personally conducted the investigation initiated on notification from judge Wojciech Łączewski in a stalking case (Art. 190a(2) of the Criminal Code).  On 6 October 2016, by virtue of the decision of the National Public Prosecutor (file ref. PK IX K 103.4490.2016) the Prosecutor was dismissed from the position of the division head, following which, as of 9 November 2016 she resumed performing her professional duties at the District Public Prosecution Service because of the lapse of the term of her delegation to the Regional Public Prosecution Service and no extension thereof granted.  The cause lay in her refusal to consent to the issuance of the order forbidding the judge, in his capacity of the aggrieved, to gain access to the files of the case.  The case as such was transferred from Legnica to the Kraków Divisional Public Prosecution Service where it is still in progress.

Another example concerns the stance of Prosecutor Wojciech Pełeszok.  He was delegated from the Warsaw Regional Public Prosecution Service to the Warsaw City Centre – North District Public Prosecution Service in Warsaw after he had, at a court sitting, declared he supported the request for temporary detention of a person arrested at the demonstration of 22 October 2020 following the judgment of the Constitutional Tribunal in the matter of abortion, as this was the official order he had received in writing, although personally he was against it.

Prosecutor Tomasz Nowicki of the Investigation Department, Warsaw – Praga Regional Public Prosecution Service in Warsaw, intended to commence an investigation in the matter of waived publication of a judgment of the Constitutional Tribunal.  Together with the then Head of the Investigation Department, Prosecutor Józef Gacek, he informed Paweł Blachowski, the then Regional Public Prosecutor for Warsaw – Praga of the decision.  Prosecutor Paweł Blachowski transferred prosecutor Tomasz Nowicki to the Commercial Crime Department, and as of 15 April 2016 he dismissed prosecutor Józef Gacek from the function of the Head of the Investigation Department, following which he transferred him to the Judicial Department.

Delegated too, were e.g.:

• Milan Danielewicz – prosecutor of the Ostrów Wlkp. Regional Public Prosecution Service, delegated to the Mława District Public Prosecution Service,
  • Jarosław Jaczyński – prosecutor of the Lublin Divisional Public Prosecution Service, delegated to the Lublin – South District Public Prosecution Service in Lublin,
  • Dariusz Kończyk – prosecutor of the Jelenia Góra Regional Public Prosecution Service, delegated to the Lubań District Public Prosecution Service,
  • Małgorzata Kopczyńska – prosecutor of the Jelenia Góra Regional Public Prosecution Service, delegated to the Zgorzelec District Public Prosecution Service,
  • Andrzej Litwińczuk – prosecutor of the Branch Department in Białystok to the Białystok North District Public Prosecution Service,
  • Andrzej Markowski – prosecutor of the Lublin Divisional Public Prosecution Service, delegated to the Włodawa District Public Prosecution Service,
  • Piotr Michalak – prosecutor of the Lublin Regional Public Prosecution Service, delegated to the Opole Lubelskie District Public Prosecution Service,
  • Witold Niesiołowski – prosecutor of the Gdańsk Regional Public Prosecution Service, delegated to the Gdynia District Public Prosecution Service,
  • Andrzej Padała – prosecutor of the Lublin Divisional Public Prosecution Service, delegated to the Kraśnik District Public Prosecution Service.
  • Maciej Prabucki – prosecutor of the Jelenia Góra Regional Public Prosecution Service, delegated to the Lubań District Public Prosecution Service,
  • Marcin Śliwiński – prosecutor of the Jelenia Góra Regional Public Prosecution Service, delegated to the Zgorzelec District Public Prosecution Service,
  • Urszula Turzyńska – Schultz – prosecutor of the Gdańsk Regional Public Prosecution Service, delegated to the Gdynia District Public Prosecution Service,
  • Henryk Żochowski – prosecutor of the Białystok Divisional Public Prosecution Service, delegated to the Wysokie Mazowieckie District Public Prosecution Service.

Still serving their delegations are, e.g.:

• Hanna Borkowska – prosecutor of the Gdańsk Regional Public Prosecution Service, delegated to the Gdańsk-City Centre District Public Prosecution Service in Gdańsk since 28 November 2016.
  • Wojciech Łuniewski – prosecutor of the Warsaw Regional Public Prosecution Service, delegated to the Piaseczno District Public Prosecution Service,
  • Dariusz Różycki – prosecutor of the Gdańsk Regional Public Prosecution Service, delegated to the Gdańsk – Oliwa District Public Prosecution Service since 10 December 2016.
  • Dariusz Witek – Pogorzelski – prosecutor of the Gdańsk Regional Public Prosecution Service, delegated to the Gdynia District Public Prosecution Service.

One should note that the list of the prosecutors delegated in the disciplinary fashion is incomplete, since not all prosecution units provided their data; some of them declared that the requested information had been processed.  Moreover, some prosecutors did not consent to having their personal data quoted in the report.

Another form of a quasi disciplinary sanction consists in delegation to another organisational unit of the prosecution service away from the place of work or residence for a period of up to 6 months without the prosecutor’s consent.

To provide and example, delegation of the kind affected Mr Mariusz Krasoń, prosecutor of the Kraków Divisional Public Prosecution Service, delegated to the Wrocław – Krzyki West District Public Prosecution Service located 300 km away from his residence for the period of 6 months, i.e. from 8 July 2019 to 7 January 2020, even though he was taking care of his elderly parents.

A tragedy accompanied the delegation of prosecutor Dariusz Wituszko from the prosecutor services in Szczecin to Rzeszów 600 km away; the delegation ended in his death.

Delegated away from the place of his abode was Mr Zbigniew Szpiczko, prosecutor of the Białystok Regional Public Prosecution Service (member of the Lex Super Omnia Association of Prosecutors).  Despite his very demanding family status which required ensuring care over his next of kin, he was delegated to the Suwałki District Public Prosecution Service away from his residence for the period from 11 December 2017 to 10 February 2018.  Back in 2017, prosecutor Zbigniew Szpiczko was holding a multi-thread investigation connected with irregularities discovered in the local school complex.  One of the side threads of the case concerned the legal counsel of the city police headquarters in Białystok, suspected of overstepping his authority.  In December 2017, prosecutor Zbigniew Szpiczko applied to the court for conditional dismissal of the charges against the counsel.  Meanwhile, he continued the main investigation.  The management of the prosecution services did not agree with the motion, as they anticipated he would lodge an indictment against the counsel and that the latter would be put on trial.  The prosecutor did not comply and requested that he would be given an amended order or excluded from the case; his request was not granted.  Zbigniew Szpiczko was, already at the time, a member of the Lex Super Omnia Association of Prosecutors and the defence counsel in one of the first disciplinary cases laid against Krzysztof Parchimowicz, President of Lex Super Omnia.  In the period, the prosecutor was also on the team dealing with an investigation into forging signatures on the letters of support for the candidates of the National Movement before the elections to the local governments in 2014.  The decision imposing delegation for two months was issued on 8 December 2017 by Elżbieta Pieniążek from the Białystok Divisional Public Prosecution Service.  Despite the Prosecutor’s request for amending the decision, prosecutor Elżbieta Pieniążek did not change it; later, the delegation was extended by another 4 months by the National Public Prosecutor, Bogdan Święczkowski.

Delegated on the same terms was also Mr Zbigniew Pustelnik, prosecutor of the Katowice Divisional Public Prosecution Service who, having found no reasons to continue the application of the temporary detention measure in one of his cases in December 2018, was delegated to the Zabrze District Public Prosecution Service for 6 months.  Upon the lapse of the period, the National Public Prosecutor, Bogdan Święczkowski, delegated him again to the same unit, which violated the regulations of the Act on the Public Prosecution Service (Art. 106(1) and 106(2) of the cited act).  Several days later, the National Public Prosecutor changed his delegation decision pointing to Art. 106(3) as the grounds for continuing the delegation at the Katowice District Public Prosecution Service.

The management board of the Lex Super Omnia Association of Prosecutors turned to the National Council of Prosecutors stating specific incidents of delegation and reporting them as a form of retorsion and infringement on the prosecutors’ independence.  In the letter of 23 May 2017, the National Council of Prosecutors at the Prosecutor General informed that it would only deal with the matter of infringing on prosecutors’ independence on request from the specific person concerned.  However, when a request of the kind was lodged by prosecutor Zbigniew Szpiczko, his delegation away from the place of his abode for the period of 6 months was not found to constitute an infringement on his independence as a prosecutor.

On 18 January 2021, seven prosecutors, members of the Lex Super Omnia Association of Prosecutors, were delegated without their consent to prosecution units away from the place of their usual abode:

1. Prosecutor Katarzyna Kwiatkowska from the Warsaw – Praga Regional Public Prosecution Service in Warsaw to the Golub – Dobrzyń District Public Prosecution Service (more than 180 km away from her residence),
2. Prosecutor Katarzyna Szeska from the Warsaw – Wola District Public Prosecution Service in Warsaw to the Jarosław District Public Prosecution Service (324 km away from her residence),
3. Prosecutor Ewa Wrzosek from the Warsaw – Mokotów District Public Prosecution Service in Warsaw to the Śrem District Public Prosecution Service (310 km away from her residence),
4. Prosecutor Jarosław Onyszczuk from the Warsaw – Mokotów District Public Prosecution Service in Warsaw to the Lidzbark Warmiński District Public Prosecution Service (260 km away from his residence),
5. Prosecutor Mariusz Krasoń to the Kraków – Podgórze District Public Prosecution Service,
6. Prosecutor Daniel Drapała from the Wrocław Regional Public Prosecution Service to the Goleniów District Public Prosecution Service (411 km away from his residence),
7. Prosecutor Artur Matkowski from the Poznań – Grunwald District Public Prosecution Service to the Rzeszów District Public Prosecution Service (620 km away from his residence).

The information shared by prosecutor Jacek Skała, of the allegedly higher number, i.e. 18 delegated prosecutors, has not been corroborated so far, and the Prosecutor has not disclosed the personal data of the persons to the public.  No such information can be provided either by the National Public Prosecutor, Mr Bogdan Święczkowski.

In reply to the interpellation from Kamila Gasiuk – Pichowicz, MP, dated 19 January 2021, in his letter of 4 May 2021, Mr Bogdan Święczkowski wrote that the requested information had been processed, and, quote: ‘its compilation would require a review of the documentation covering the indicated period and an analysis of the personal files from across the country.  One should add that the right to delegate prosecutors to take up work at other organisational units also rests with the divisional and regional public prosecutors’.  It would be hard to understand that interpretation of the act on access to public information, were it not for the heretofore experience the Lex Super Omnia Association of Prosecutors has accumulated in addressing requests under the act at e.g. the National Public Prosecution Service, and similarity of the arguments used, not to go as far as claiming their identity.  Nevertheless, it was surprising in view of the fact that the requested information concerned 19 days in the year 2021.

Hence, nobody knows how information on 18 prosecutors delegated away from their usual residence on 15 January 2021 made its way to the media.  Is this, perhaps, the case of the left hand not knowing what the right hand is doing, or perhaps stating the number is impossible considering that only 7 prosecutors of the Lex Super Omnia Association of Prosecutors were delegated?

The legal basis of the decisions to delegate 7 members of the Lex Super Omnia Association of Prosecutors away from their place of abode was Art. 106(2) of the Act on the Public Prosecution Service.  The gist of the regulation has to date formed the basis for the so-called promotion delegations, as suggested by its correlation to Art. 108 of the above-cited act.  Pursuant to the reading of the Article, the prosecutor delegated to another organisational unit of the prosecution services (where the text semantically corresponds to Art. 106(2) of the act) is paid an increased remuneration following 6 months of the delegation, at the base tier prescribed for the unit, and if the prosecutor has already reached the level, at the next higher tier.  The above regulation does not open the option of delegating a prosecutor away from his/her residence to a unit of equivalent or lower level.  This is because if upon the lapse of the 6 months the prosecutor consented to the delegation based on the regulation of Art. 106(2) of the act, this would not carry the effect of his/her earning his/her salary at any higher tier.  In this context, the decision of the National Public Prosecutor is unlawful in its essence and infringes on the act.  This is because if one were to assume that the motivation behind the actions of the National Public Prosecutor is honest, namely the reason lies in supporting the units with personnel shortages, he should apply the regulation of Art. 106(3) of the Act on the Public Prosecution Service, which reads that in particularly well-grounded cases, if the personnel status requires so, he can delegate a prosecutor, though to a unit located farthest within the district where the unit employing him/her has its main offices.  The reason is that the regulation, being a lex specialis, imposes major restrictions on delegating prosecutors for manning reasons, which is connected with a deviation from the general rule laid down in Art. 121(1) of the Act on the Public Prosecution Service and in its essence is intended to exclude the extraordinary hardship of delegation away from the place of abode, if not connected with promotion.

Art. 106(8) of the Act on the Public Prosecution Service indicates the clearly repressive nature of the regulation, not substantiated by the actual need for potential relocation of the prosecutor Staff; the Article stipulates that the delegation period is not inclusive of the time over which the delegated prosecutor did not perform his official duties because of an illness.  Hence, in actual fact the reasons substantiating delegation of up to six months a year to another organisational unit of the prosecution services do not lie in the organisational needs of the prosecution services in view of the fact that the decision is not dependent on the organisational needs of the services (the legislator did not indicate any reason which would give the grounds for making the delegation decision).  Pointing to the repressive nature of the institution too is the fact that there is no need to consider further desirability of delegation of the prosecutor who did not perform his official duties in the delegation period because of an illness.

Mis Ewa Bialik, press spokesperson of the National Public Prosecution Service, in her answers to the questions from journalists about delegation of the above listed prosecutors, given on 18 January 2021, voiced a position which also referred to Art. 106(3) of the Act on the Public Prosecution Service:

‘The National Public Prosecution Service has made the decision to back those prosecution units which have suffered the gravest staffing problems due to the COVID 19 pandemic we are going through.  The decision is meant to facilitate the proceedings of the smallest and most overworked prosecution units all over Poland.  They will be aided by temporarily delegated prosecutors from larger units, also of higher levels.  Their experience is anticipated to improve the efficiency of the understaffed units swiftly and effectively’.

In addition, one should note, to quote after the reply provided by Mr Bogdan Święczkowski, National Public Prosecutor, of 4 May 2021 to the interpellation from Ms Kamila Gasiuk – Pichowicz, MP: ‘the decisions to delegate prosecutors were dictated by the understaffing of the indicated district public prosecution units.  The decisions were preceded with an analysis of the staffing level versus post numbers of the units the analysis covered, and were guided by the actual number of staff and the case workload per predicate’.

The reply provided by the National Ombudsman on 7 April 2021 explains that the delegations were based on the need to ensure unperturbed operations of those organisational units of the prosecution which, quote: ‘were most severely hit by staffing problems due to the current pandemic of the SARS-COV-2 virus’.

The data obtained based on the Act on access to public information show that as at 15 January 2021, the Kraków – Podgórze District Public Prosecution Service in Kraków had 33 predicate posts assigned, including 28 available to prosecutors and 5 to assistant prosecutors, where the official duties were actually performed by 23 prosecutors and 3 assistant prosecutors.  The same data also show that 4 prosecutors were delegated from that unit to the Kraków Regional Public Prosecution Service.  Had it not been done, there would have been one prosecutor’s job vacant.  The situation was similar at the City of Rzeszów District Public Prosecution Service where, as at 15 January 2021, official duties were actually performed by 21 prosecutors out of 29 existing predicate jobs, provided that a dozen or so prosecutors had been delegated to the Regional Public Prosecution Service in 2020.

The reply provided by the Golub – Dobrzyń District Public Prosecution Service to the request from the Lex Super Omnia Association of Prosecutors filed under the Act on access to public information shows that the unit was allocated three predicate jobs, with two staffed.  At the time prosecutor Katarzyna Kwiatkowska began her delegation, one of the prosecutors took a 6 months’ medical leave.  Thus, the delegation did not alleviate the allegedly tough situation of the unit in terms of its staffing level which remains unchanged.  A similar situation was recorded for the Lidzbark Warmiński District Public Prosecution Service.  The information obtained indicates that the unit has 4 predicate jobs at its disposal with 3 manned as at 15 January 2021.

Other district public prosecution units had single predicate jobs vacant; however the management of the units did not apply to the regional public prosecution services for staffing support considering that the predicate staffing was sufficient to ensure stable work organisation at the units.  As goes for the Jarosław District Public Prosecution Service, on the other hand, the unit was fully staffed, the fact corroborated with the information obtained based on the Act on access to public information, which reveals that the Jarosław unit was allocated 9 predicate jobs and all were manned.  The same was confirmed by prosecutor Marta Pętkowska, Regional Public Prosecutor in Przemyśl.

Moreover, one should point out that the heads of the units to which the 7 prosecutors were delegated had not applied to the Regional Public Prosecutor for staffing support, nor the Regional Public Prosecutors had filed any such requests with the National Public Prosecutor, the fact confirmed with the information obtained based on the Act on access to public information.

The reply of the National Public Prosecutor, Bogdan Święczkowski, of 2 May 2021 to the interpellation from Ms Kamila Gasiuk – Pichowicz, MP, further indicates that delegated away from their place of abode were prosecutors based in those units where, quote: ‘the staffing level was stable.  Before making the delegation decisions the epidemiological situation in the country had been taken into account’.

The data obtained based on the Act on access to public information reveal that delegated from the Warsaw – Wola District Public Prosecution Service in Warsaw in 2020, i.e. the unit from which prosecutor Katarzyna Szeska had been delegated, were: 3 prosecutors to the Warsaw Regional Public Prosecution Service, 1 prosecutor to the Warsaw Ochota District Public Prosecution Service, and 1 to the Warsaw City Centre District Public Prosecution Service.  As at 15 January 2021, the actual employment level was: 36 prosecutors and 5 assistant prosecutors out of 45 allocated predicate jobs.

The Warsaw – Mokotów District Public Prosecution Service in Warsaw has 37 predicate jobs at its disposal.  In the year 2020, three prosecutors were delegated to the Warsaw Regional Public Prosecution Service and one to the Warsaw Ursynów District Public Prosecution Service.  In addition, two delegations to the Warsaw Regional Public Prosecution Service were extended, and the same concerns one delegation to the Warsaw Divisional Public Prosecution Service and one to the National Public Prosecution Service.  Back in 2020, 4 prosecutors were delegated to the Warsaw Mokotów District Public Prosecution Service.  As at 15 January 2021, the actual staffing was 26 prosecutors and assistant prosecutors.  Once prosecutors Ewa Wrzosek and Jarosław Onyszczuk had been delegated, the understaffing aggravated and stood at 13 vacant predicate jobs as at 18 January 2021.

The military departments of the Poznań district public prosecution services had 2 vacant predicate jobs.  What is important, though, the data provided by the Poznań Regional Public Prosecution Service reveals that as at 15 January 2021 out of the 269 full time jobs allocated to the region 29 prosecutors were on delegations to units of higher levels.  Actually staffed were 240 jobs.

With all certainty, it also needs to be stated that in most cases the cause of minor vacancies, compared e.g. to the Warsaw units, did not lie in the COVID 19 pandemic, and using it to provide reasons to the decisions of the National Public Prosecutor was unbecoming, to say the least.

Untrue too was found yet another argument raised in the statement of the press spokesperson of the National Public Prosecutor, which concerned the delegation of 7 prosecutors to the units, quote: ‘more burdened with workload’.  The same argument was repeated in the reply provided to the National Ombudsman by Bogdan Święczkowski, National Public Prosecutor.

For instance, the work results in statistical figures for the Golub – Dobrzyń District Public Prosecution Service where prosecutor Katarzyna Kwiatkowska was delegated, are very good, unlike those of the Commercial Crime Department of the Warsaw – Praga Regional Public Prosecution Service in Warsaw from which she was delegated.  An analysis of the data obtained based on the Act on access to public information from the Golub – Dobrzyń District Public Prosecution Service for the year 2020 shows that a minor number of cases were outstanding and in arrears from the previous reporting period (31 cases), they had no long-term proceedings in progress (i.e. any proceedings which would take more than 1 year and up to 5 years), a modest number of new cases the unit would open (1082 cases), inquest being the dominating form of the preparatory proceedings (380 cases), and a large number of decisions refusing to initiate an inquest (608).

The situation is similar at the Lidzbark Warmiński District Public Prosecution Service.  Their statistical data for 2020 show few outstanding cases in arrears from the previous reporting period (66 cases), no long-term proceedings (between 1 and 5 years), few new cases taken up by the unit (1312 cases), inquest being the dominating form of the conducted preparatory proceedings (568 cases), and a large number of decisions to refuse opening an inquest (646 cases).

The Szczecin Regional Public Prosecution Service refused to provide the requested information stating it had been processed.

The National Public Prosecutor considered it irrelevant that the temporarily delegated prosecutors left their sections, which would require the new officer to study a high number of cases or volumes of documentation of preparatory proceedings involving numerous people, often complex in terms of the factual and legal status.  As it turns out, the good of the case, swiftness and efficiency of the preparatory proceedings in progress are of no significance, despite the highest number of long-term proceedings taking more than 6 months recorded since 2014 (increase by 270%) and older ones (increase by 370 to 390%) whilst the rate of new cases remains comparable.  Forgotten too, is the right of the rank and file citizen to have the case considered within a reasonable time frame, as ensuing from Art. 45(1) of the Constitution, and the right to have the case tried within a reasonable time, as proclaimed in Art. 6(1) of the European Convention on Human Rights and Fundamental Freedoms.

The actual cause of staffing shortfalls suffered e.g. by the Warsaw units or the units in other large cities, lies in the irrational staffing policy pursued by the management of the Prosecution Services.  ‘Delegatiosis’ is the phenomenon commonly known among the prosecution services, consisting in delegating prosecutors to units of higher levels with disregard of numerous parameters, to name e.g. the number of cases in progress at the district public prosecution services, the criteria of promotion, the number of potentially available delegations considering the predicate staff resources in place.  As at 31 December 2017, out of 4,077 manned prosecutor and assistant prosecutor jobs at the district public prosecution services, 646 prosecutors of the units were delegated to units of higher levels, including 31 to the National Public Prosecution Service, 68 to the divisional public prosecution services, and 547 to the regional public prosecution services.  In the year 2018, the number increased by at least 286 prosecutors, and in 2019 by at least 270 prosecutors.  Even if one assumes that some of those persons have returned back to their home prosecution units from their delegations, or have been promoted, the number of prosecutors delegated from the district public prosecution services to units of higher levels still triggers serious reservations, particularly that more than 98% new cases undertaken by the prosecution services in 2018, i.e. 1,067,764 cases, were registered with the district public prosecution services; the corresponding figure for 2019  stood at 1,109,608 cases.

This is a way to create staffing shortfalls then intended to substantiate delegation of other prosecutors to units of lower or the same level.  One can observe it in the district public prosecution services where prosecutors from one unit within the specific region are delegated to another unit, most often for a statistical period of half a year or one year.  It is them who bear the consequences of the irrational personnel policy which could be improved through nothing more than e.g. radical reduction of promoting delegations and adoption of the rule that the prosecutor’s place of work is consistent with his/her official title.

Doubtlessly, rational administrators of budgetary funds, where both the Prosecutor General, and the National Public Prosecutor are ones, should take into consideration the financial costs of the personnel decisions they make, and actually they expend considerable funds on prosecutors delegated in the promotion mode.  After 6 months of delegation a prosecutor delegated to a higher level acquires the right to a much higher salary in accordance with the rules laid down in Art. 108 of the Act on the Public Prosecution Service; the same term for prosecutors delegated to two departments of the National Public Prosecution Service, including its field branches, is 3 months.  In extreme cases, a prosecutor of the district public prosecution service may in this way progress from tier 1 to tier 7.

The National Public Prosecution Service also pays the prosecutors delegated away from their residence in the mode of the quasi disciplinary sanction.  This aspect is regulated in the Act on the Public Prosecution Service and the Regulation of the Minister of Justice of 1 March 2019 on delegating prosecutors to the National Public Prosecution Service or the Minister of Justice, and the National School of Judiciary and Public Prosecution; the regulations cover the benefits owing to the prosecutors delegated away from their regular place of service (Journal of Laws 2019, it. 509).  Applicable too is the Regulation of the Minister of Labour and Social Policy of 29 January 2013 on the amounts due to employees of state or local government budgetary units for business travels (Journal of Laws 2013, it. 167).  Ensuing from the above regulations, a prosecutor is eligible for a monthly lump sum to cover the costs of accommodation, reimbursement of the costs of travel to his/her place of abode, a lump sum to cover the costs of commuting by public transport, and per diems.

In the situation, it would be cheaper and more rational to have at least some of the delegated prosecutors return to their home units, especially when the persons live in the nearest vicinity.

All delegation decisions are extremely brief, devoid of reasons, or the right to appeal from them, just as in the case of demotion decisions.  Although, admittedly, the regulations of the Act on the Public Prosecution Service do not require any such element, no reasons of the delegation decisions, provided to the delegated prosecutors prevents them from verifying their reasonableness and, hence, their legality.  Contrary to what the legislator intended, another aspect of the institution, namely the prosecutor’s qualifications which should be taken into account when making a decision of the kind is forgotten or consciously neglected.

In the reply provided by Bogdan Święczkowski, National Public Prosecutor, to the National Ombudsman, the respondent said that the decisions to delegate prosecutors fall, quote: ‘within the discretional authority of their superiors’.  If we were to adopt this concept of the employer – prosecutor relationship, we would be left to conclude that the Polish law, including the superiority line pragmatics contained in the Act on the Public Prosecution Service, enables reducing employees to mere objects and disregard their reasonable interests and rights.  This, however, would come down to negating the fundamental principles which underly the labour law applicable to prosecutors (Art. 130 of the Act on the Public Prosecution Service), as they are employees in the sense of the Labour Code.  The principles are: equal treatment and non-discrimination, respect for the employee dignity, and personal rights of each prosecutor.

On 19 January 2021, Prof. Adam Bodnar, National Ombudsman, filed an inquiry with the Prosecutor General, Zbigniew Ziobro, and the National Public Prosecution Service concerning unexpected delegation of prosecutors, members of the Lex Super Omnia Association of Prosecutors, to organisational units of the prosecution services located hundreds of kilometres away from the home addresses of the delegated prosecutors.  The Ombudsman pointed out that the Prosecutor General was obliged to respect the dignity and other personal rights of the employees and could not use his authority for purposes contradictory to the principles of social coexistence.  He also raised the argument of the epidemic which hinders taking the most basic actions, to name e.g. a search for temporary accommodation.  He noted that: ‘the decisions of the Prosecutor General made with respect to the board members of the Lex Super Omnia Association of Prosecutors which has expressed critical opinions on the management of the prosecution services trigger even more doubt and can be perceived as retortion for their legal activities in the Association’.

Beyond doubt too is the fact that the regulations of Art. 106 of the Act on the Public Prosecution Service applicable to delegations without the prosecutor’s consent do not meet international standards, and their practical application has proved that the concerns expressed by the international institutions in the creation of the deeds were more than substantiated.

The acts of international law require special transparency and following objective rules when delegating a prosecutor to perform his/her duties in another unit.

The Guide on the Status and Role of Prosecutors published by the United Nations Office on Drugs and Crime, and International Association of Prosecutors in 2014 (https://www.unodc.org/documents/justice-andprison-reform/HB_role_and_status_prosecutors_14-05222_Ebook.pdf) notes that decisions to transfer a prosecutor to another unit can impinge on his/her independence and carry a negative effect on his/her morale, which may result in a negative effect on the operational effectiveness of the entire prosecution service.  It further notes that delegations must not be tantamount to professional demotion, since any such actions may only be taken by disciplinary courts, whereas permitting any such actions paves the way to far reaching misuse and intrudes on the prosecutors’ internal independence.

That is why, Recommendation Rec. (2000)19 of the Council of Europe on the role of public prosecution in the criminal justice system of 6 October 2000 (https://rm.coe.int/16804be55a) requires that delegation of a prosecutor to another unit must be carried out according to fair and impartial procedures based on objective criteria.  The Recommendations of the Council of Europe on the role of public prosecution in the criminal justice system of 6 October 2000, as well as the opinion of the Consultative Council of European Prosecutors on the European standards and rules which build the status of the prosecutor (the so-called Rome Charter) of 17 December 2014, point XII, note that, quote: ‘The recruitment and career of prosecutors, including promotion, mobility, disciplinary action and dismissal, should be regulated by law and governed by transparent and objective criteria, in accordance with impartial procedures, excluding any discrimination and allowing for the possibility of impartial review’.  The Explanatory Note points out that the possibility to transfer a prosecutor without his/her consent should be regulated by law and limited to exceptional circumstances such as the urgent need of the service and taking into account the prosecutor’s current position, specialisation, and family situation, with the possibility to appeal from the decision to an independent body.

International institutions pay special attention to prosecutor delegations without consent of the concerned, since this carries the risk of using delegation as an instrument of lawless pressure on prosecutors (European Commission for Democracy through Law, or the so—called Venice Commission, Report on the independence of the judicial and prosecutions systems: Part II – Prosecution, of 3 January 2011, https://rm.coe.int/1680700a60).  According to the opinion of the Venice Commission, if the act of law permits delegating a prosecutor without his/her consent, it should also provide for appropriate guarantees so as to make sure that decisions of the kind do not turn into an implied disciplinary sanction imposed without disciplinary proceedings, especially when the delegation is to a unit lower in the hierarchy (M. Szeroczyńska, Międzynarodowy standard statusu i organizacji prokuratury a najnowsze zmiany polskiego porządku prawnego, Czasopismo Prawa Karnego i Nauk Penalnych 2017, No. 2, pp. 125-126).

In addition, one should point to the ECHR’s judgment in the case of Laura Kövesi v. Romania, which made reference to the growing importance of the instruments promulgated by the Council of Europe and the European Union concerning the need to ensure that prosecutors removed from their offices are guaranteed a fair court procedure independent of the executive or legislative authorities.

It was an extraordinary disciplining measure for the attorney of the National Public Prosecution Service to file an action with the court against prosecutor Katarzyna Kwiatkowska for an alleged infringement on the unit’s rights, claiming the payment of PLN 250,000.  The lodged statement of claim represented a typical legal action of the SLAPP type (Strategic Lawsuit Against Public Participation) aimed at hushing criticism by creating the so-called ‘chilling effect’ rather than winning the case.

One should note that the practice of SLAPP type actions was, on 25 November 2020, condemned by the European Parliament in its resolution.

Another problem which became apparent in the times of the ‘good change’ in the prosecution services affects the prosecutors on sick leaves for any period of up to one year, where the medical leave is then followed by the ZUS [Social Insurance Institution] decision pronouncing the concerned not permanently unable to work.  In addition, on order from the National Public Prosecutor of 27 April 2017, all divisional and regional public prosecutors were obliged to lodge protests with the ZUS medical commission against the statements of the ZUS predicate physician of permanent incapacity to perform the service.  As a consequence of the above, the Prosecutor General issued decisions refusing consent to retire prosecutors for health reasons without a detailed analysis of each and every case.  Over the time, the prosecutors were deprived of their livehood and of the possibility to avail themselves to health insurance (e.g. Katarzyna Bosiakowska, prosecutor of the Warsaw Regional Public Prosecution Service delegated to the Warsaw – Żoliborz District Public Prosecution Service in Warsaw).  Their health did not allow them to return to work, whilst at the same time, according to the Prosecutor General, it did not substantiate their retirement.  In this way, retirement was hindered for prosecutor Mirosław Tracz; the lawsuit took almost 2 years following the moment he became eligible.  In 3 cases, the Supreme Court granted the appeals from prosecutors and ordered reconsideration of their cases by the Prosecutor General.  Late in 2018, the Prosecutor General restated his original decisions.  Noteworthy is the decision of the Prosecutor General, dated 15 November 2018, issued with respect to prosecutor Andrzej Tańcula.  In the decision, we read that granting the request would be disadvantageous since the prosecutor could not return to active service.  This position is in glaring contradiction with the reading of the binding Act on the Public Prosecution Service.  The legal regulations binding today stipulate that prosecutors in such a situation are eligible for 50% of the remuneration owing.

As concerns delegations, it also needs to be noted that the list of the delegated prosecutors incorporated in this report is not exhaustive, since individual units of the prosecution services refuse to provide data, and some prosecutors refused to have their personal data disclosed in apprehension of further repercussions from their superiors.

This study omits typical forms of persecution such as burdening prosecutors with disproportionate workloads, assigning duties which require prompt actions, changing their scopes of duties, calling off and changing their assistants, allocating them with premises which insult the dignity of the office, or other forms of impeding day-to-day dignified performance of duties, etc.

Yet another instrument of the group of prescriptive regulations which create an opportunity to affect the prosecutor’s independence indirectly, is the adopted model of the disciplinary procedure, including the appointment of prosecutors to the functions of Deputy Disciplinary Ombudspersons, the issue discussed in the next chapter.

III LEGAL DEFECTIVENESS OF THE APPOINTMENT OF PROSECUTORS TO THE FUNCTIONS OF DEPUTY DISCIPLINARY OMBUDSPERSONS BY THE PUBLIC PROSECUTOR GENERAL AND NATIONAL PUBLIC PROSECUTOR IN THE YEARS 2016-2020, WHICH RESULTED IN ILLEGALITY OF THE ACTIONS TAKEN IN THE DISCIPLINARY SYSTEM

The regulations introduced by the legislator in the Act of 26 January 2016 on the Public Prosecution Service and applying to disciplinary liability of prosecutors and their liability under the terms of service put the sole authority to ‘appoint’ prosecutors to the functions in the Prosecution Services both new and previously unprovided for in the law, to name e.g. Deputy Disciplinary Ombudspersons for divisional districts in the hand of the Public Prosecutor General (Art. 153(1) of the Act on the Public Prosecution Service).  In § 1 of the said regulation, the legislator stipulates that the Public Prosecutor General appoints the ombudspersons ‘for the term of office’, and in § 2 sets the duration of the term of office for 4 years.  Equally important is the fact that in Art. 153(3), the legislator ensured independence to the persons performing the functions of the Disciplinary Ombudspersons with respect to their initiating and conducting explanatory proceedings and conferred onto them the authority to appear before the Disciplinary Court in the capacity of the accusers enjoying the right to file applications and declarations, and to apply for and support appeal measures.  The legislator’s intention to ensure independence to the Ombudspersons in their offices finds confirmation in Art. 153(4) of the Act on the Public Prosecution Service which introduces the general proscription of dismissing the ombudspersons before the lapse of their term of office, except for specific cases specified in the Act.

Meanwhile, the practice of appointing prosecutors to the prosecution functions of prosecutor Deputy Disciplinary Ombudspersons, as evolved in the years 2016 – 2020, blatantly infringes on the above statutory requirements.

The legal defectiveness of the reviewed practice stems from:

• the Public Prosecutor General’s failure to comply with the statutory obligation of appointing prosecutor Deputy Disciplinary Ombudspersons for divisional districts for the 4-year term of office,
• the National Public Prosecutor’s overstepping of his authority by impinging on the statutorily sole authority of the Public Prosecutor General to appoint and dismiss prosecutors, Deputy Disciplinary Ombudspersons for divisional districts and issuing deeds of temporary ‘entrustment of the functions’ non-existent in the act of law, and ‘extensions of the term of office in the function’ again irrespective of the law.

The text of the documents obtained by the Lex Super Omnia Association of Prosecutors based on the Act of 6 September 2001 on access to public information reveals that as concerns the prosecutors appointed to the functions of Deputy Disciplinary Ombudspersons for divisional districts, the Public Prosecutor General and the National Public Prosecutor did not issue deeds of ‘appointment’ for the statutorily prescribed 4-year term of office; they merely ‘entrusted’ ‘the function’ temporarily (usually for the period of 6 months), thus deviating from the 4-year term set by the act of law.

In the Public Prosecutor General’s ordinance No. 7 of 7 March 2016 on delegation of the authority to appoint prosecutors to functions in ordinary organisational units of the prosecution services: ‘the Public Prosecutor General, Zbigniew Ziobro, authorised the National Public Prosecutor, Bogdan Święczkowski, to make and sign decisions appointing prosecutors to the functions in the ordinary organisational units of the prosecution services, except for the functions of the divisional public prosecutor, deputy divisional public prosecutor, regional public prosecutor, and deputy regional public prosecutor’.  One should pay attention to the reading of the authorisation, as it is detailed and precise.  It repeats the statutory regulation of Art. 15(4) of the Act on the Public Prosecution Service.  So, the National Public Prosecutor can ‘appoint’ a prosecutor to a function, but cannot ‘dismiss’ him/her from his/her function.  The above ordinance came into force and effect as of the day it was signed.

An analysis thereof indicates that the authority of the National Public Prosecutor covered only the right to ‘appoint’ to the function for the term of office, applicable to Deputy Disciplinary Ombudspersons for divisional districts.  On the other hand, it did not cover ‘entrustment of the functions’ or dismissal from the functions.  Hence, one must state that the Public Prosecutor General could not have conferred onto the National Public Prosecutor the authority to ‘entrust the functions’ of the Deputy Disciplinary Ombudspersons for divisional districts, since both in the then state of the law he was not, and in the current state of the law he is not competent to ‘entrust the functions’.  The exclusive authority of the Public Prosecutor General to ‘appoint’ and ‘dismiss’ disciplinary ombudspersons, as ensuing from Art. 153(1) of the Act of 26 January 2016 on the Public Prosecution Service, was corroborated in § 1(8) of Ordinance No. 4/16 (as well as in No. 21/17 and No. 23/18) of the Public Prosecutor General, dated 8 March 2016 (and correspondingly, dated 28 March 2017 and 30 July 2018) on determination of the scope of duties of the Public Prosecutor General, National Public Prosecutor, and the other deputies of the Public Prosecutor General. The same competence-setting deeds, in their § 2(1) and 2(4), authorise the First Deputy Public Prosecutor General, i.e. the National Public Prosecutor, Bogdan Święczkowski, to ‘substitute for the Public Prosecutor General over the time of his absence or temporary inability to perform his duties’, and to ‘make and sign decisions related to appointments to the functions of deputy divisional public prosecutors, deputy regional public prosecutors, and deputy district public prosecutors, as well as decisions related to appointments to other functions in the prosecution services’.  Ensuing from the above, the National Public Prosecutor, Bogdan Święczkowski, was not conferred the authority to make, ‘in substitution for the Public Prosecutor General’ any decisions with respect to Deputy Disciplinary Ombudspersons other than their ‘appointment’ to the function for the term of office.

To recapitulate the above, one must state that the letters ‘entrusting’ specific prosecutors with the ‘functions’ of Deputy Disciplinary Ombudspersons for individual divisional districts have no content which might carry the effect of legal effectiveness of the sovereign acts issued by the National Public Prosecutor.  The revealed legal defectiveness of the above-indicated deeds carries the effect that the named prosecutors have no status of Deputy Disciplinary Ombudspersons for the specific divisional districts.  Consequently, all actions taken by the persons named as Deputy Disciplinary Ombudspersons for individual divisional districts are made by persons with no authority, and in effect they must be found illegal.

The case of prosecutor Waldemar Moncarzewski from the Lublin Divisional Public Prosecution Service can serve an example and illustration of the defective procedure of entrusting the function of the Deputy Disciplinary Ombudsperson.  Initially, in the letter of 19 May 2016 (ref. PK IX K 103.2478.2016) signed by the National Public Prosecutor, prosecutor Waldemar Moncarzewski ‘was entrusted with the function’ of the Deputy Disciplinary Ombudsperson for the Lublin divisional district for the period from 25 May 2016 to 24 November 2016.  The text of the said document indicates that the author, National Public Prosecutor, Bogdan Święczkowski, was acting ‘on authority’ from the Public Prosecutor General.  In the following letter of 17 November 2016 (ref. PK IX K 103.5349.2016), prosecutor Waldemar Moncarzewski was ‘extended the term of his entrusted function’ of the Deputy Disciplinary Ombudsperson for the Lublin divisional district for the period from 25 November 2016 to 24 May 2017.  The said document was signed by the Public Prosecutor General.  The letter of 15 May 2017 (ref. PK IX K 1122.1954.2017) ‘extended the term of the entrusted function’ of the Deputy Disciplinary Ombudsperson for the Lublin divisional district, as held by prosecutor Waldemar Moncarzewski for the period from 25 May 2017 to 24 November 2017.  The text of the said document reveals that the author, National Public Prosecutor, Bogdan Święczkowski, acted ‘in substitution for’ the Public Prosecutor General.  Subsequently, in the letter of 7 November 2017 (ref. PK IX K 1122.3680.2017) the ‘term of the function’ of the Deputy Disciplinary Ombudsperson for the Lublin divisional district, entrusted to prosecutor Waldemar Moncarzewski ‘was extended’ for the period from 25 November 2017 to 24 May 2018.  The text of the said document reveals that the author, National Public Prosecutor, Bogdan Święczkowski, acted ‘in substitution for’ the Public Prosecutor General.  Yet another letter of 8 May 2018 (ref. PK IX K 1122.1212.2018) ‘extended the term of the function’ of the Deputy Disciplinary Ombudsperson for the Lublin divisional district, entrusted to prosecutor Waldemar Moncarzewski for the period from 25 May 2018 to 24 November 2018. The text of the said document reveals that the author, National Public Prosecutor, Bogdan Święczkowski, acted ‘on authority from’ the Public Prosecutor General.  The further letter of 6 November 2018 (ref. PK IX K 1122.954.2018) ‘extended the term of the function of’ the Deputy Disciplinary Ombudsperson for the Lublin divisional district entrusted to prosecutor Waldemar Moncarzewski for the period from 25 November 2018 to 24 May 2019.  The text of the said document reveals that the author, National Public Prosecutor, Bogdan Święczkowski, acted ‘in substitution for’ the Public Prosecutor General.  In the letter of 9 May 2019 (ref. PK IX K 1122.1200.2019) the ‘term of the function’ of the Deputy Disciplinary Ombudsperson for the Lublin divisional district, entrusted to prosecutor Waldemar Moncarzewski ‘was extended’ for the period from 25 May 2019 to 24 November 2019.  The text of the said document reveals that the author, National Public Prosecutor, Bogdan Święczkowski, acted ‘in substitution for’ the Public Prosecutor General.  Yet another letter of 31 October 2019 (ref. PK IX K 1122.3032.2019) ‘extended’ the ‘term of the function’ of the Deputy Disciplinary Ombudsperson for the Lublin divisional district, entrusted to prosecutor Waldemar Moncarzewski for the period from 25 November 2019 to 24 May 2020.  The text of the said document reveals that the author, National Public Prosecutor, Bogdan Święczkowski, acted ‘in substitution for’ the Public Prosecutor General.

At this point, we need to remember that the ordinances issued based on Art. 13(3) of the Act on the Public Prosecution Service did not transfer the authority to ‘entrust the functions’ of Deputy Disciplinary Ombudspersons for divisional districts onto the National Public Prosecutor.  In addition, an analysis of Ordinance No. 7/16 of 7 March 2016 on delegation of the authority to appoint prosecutors to functions in ordinary organisational units of the prosecution services leads to the conclusion that the Public Prosecutor General delegated onto the National Public Prosecutor only the authority to ‘appoint’ to the functions of e.g. Deputy Disciplinary Ombudspersons for divisional districts and only for the term set in Art. 53(1) of the Act of 28 January 2016: Regulations enacting the Act on the Public Prosecution Service, namely:

– 60 days following the date the act comes into force and effect.  With the act coming into force and effect as of 4 March 2016, the considered authority delegated to the National Public Prosecutor expired on 4 May 2016.  Meanwhile, the content of the above-specified documents reveals that in the case of prosecutor Waldemar Moncarzewski the National Public Prosecutor did not ‘appoint him’, but only ‘entrusted him with the function’, moreover, he did so upon the lapse of the law-defined term of 60 days, i.e. only on 19 May 2016.  It further needs to be highlighted that in both the initial deed, and in the subsequent deeds ‘extending the term of the function’, the set term was shorter than the 4-year term ensuing from the act of law.

One should note that in the letter of 23 April 2020, ref. PK IX K 1122.1239.2020, the National Public Prosecutor, Bogdan Święczkowski, ‘appointed’ prosecutor Waldemar Moncarzewski ‘to the function’ of the Deputy Disciplinary Ombudsperson for the Lublin divisional district as of 25 May 2020.  The text of the said document shows that the author (National Public Prosecutor, Bogdan Święczkowski) acted ‘in substitution’ for the Public Prosecutor General.  One needs to state that the above sovereign act of 23 April 2020 made an unsuccessful attempt to amend the earlier defective procedure of appointing to the function of the Deputy Disciplinary Ombudsperson for a divisional district.  Even though the deed of ‘appointment’ issued by the National Public Prosecutor does not contain the phrase of ‘entrusting the function’ used in the earlier deeds, obviously wrong as it was because not stipulated in the law, and even though it does not set the time limit of the function term (shorter than 4 years), this time too, the National Public Prosecutor infringed on the exclusive authority of the Public Prosecutor General to appoint Deputy Disciplinary Ombudspersons for divisional districts, as conferred in Art. 153(1) of the Act of 28 January 2016 on the Public Prosecution Service.

The above infringements on the regulations enjoying the status of statutory acts of law result in legal ineffectiveness of the acts of ‘entrusting (extending) the function’ and of ‘appointing’, and in consequence carry further effects of legal defectiveness of all actions taken by the prosecutor (in the capacity of the Deputy Disciplinary Ombudsperson) the act concerns.

The data obtained by the Lex Super Omnia Association of Prosecutors indicate that over the validity period of the Act of 28 January 2016 on the Public Prosecution Service and up to this date, the Public Prosecutor General, Zbigniew Ziobro, and the National Public Prosecutor, Bogdan Święczkowski, issued legally defective acts ‘temporarily entrusting the function’ or ‘extending the function term’ to other Deputy Disciplinary Ombudspersons too.

Major legal doubts arise in connection with the suspected non-performance of duties by the Public Prosecutor General, consisting in appointing prosecutors for periods other than the law-required 4-year term of office, and with the suspected overstepping of authority by the National Public Prosecutor, consisting in ‘temporary entrustment of function’ and ‘extension of the function term’, both non-existent in the act of law, in the case of the prosecutors listed below:

• for the Łódź divisional district, this concerns: Marek  Smus, Jadwiga Bissinger-Kopania, and Rafał Sławnikowski,
• for the Poznań divisional district, this concerns: Romuald Grzybek, Karolina Niemczyk, and Joanna Komolka,
• for the Szczecin divisional district, this concerns:  Gabriela Stefaniak, Marcin Lorenc, and Magdalena Blank,
• for the Warsaw divisional district, this concerns prosecutor Małgorzata Ziółkowska-Siwczyk.

As concerns the Wrocław divisional district, major legal doubts arise in the case of prosecutors Artur Jończyk and Krystyna Zarzecka, consisting in the suspected non-performance of duties by the Public Prosecutor General considering that the prosecutors were not appointed for the law-required 4-year term of office, and in ‘dismissal from function’ of prosecutor Artur Jończyk with the statutory reasons infringed upon, as well as the suspected overstepping of authority by the National Public Prosecutor through ‘interim entrustment of function’ and ‘extension of the function term’.  As concerns the Rzeszów divisional district, major legal doubts arise in the case of prosecutors Jaromir Rybczak and Maciej Jaskulski, consisting in the suspected non-performance of duties by the Public Prosecutor General considering that the prosecutors were not appointed for the law-required 4-year term of office, and the suspected overstepping of authority by the National Public Prosecutor through ‘extension of the function term’ not provided for in the act of law and ‘dismissal from function’ of prosecutor Jaromir Rybczak with the statutory reasons and the sole authority of the Public Prosecutor General infringed upon.

The Lex Super Omnia Association of Prosecutors was not disclosed the text of the deeds appointing prosecutors to the function of Deputy Disciplinary Ombudspersons for the Divisional Public Prosecution Services: in Białystok – prosecutor Marek Suchocki, Gdańsk – prosecutor Katarzyna Brzezińska, Katowice – prosecutor Mariusz Gózd, and Kraków – prosecutor Małgorzata Ciężkowska-Gabryś.

Noteworthy, the correctness of the appointments of the prosecutor Deputy Disciplinary Ombudspersons was an issue pondered by the National Ombudsman and the media.  In the letter of 6 May 2020 (ref. PK IX K 071.43.2020), the National Ombudsman, Adam Bodnar, turned to the Public Prosecutor General, Zbigniew Ziobro, with a request for information on the issue and for copies of the resolutions appointing prosecutors to the function.  The National Ombudsman expressed the view that: ‘it is reasonable to appoint disciplinary ombudspersons for full terms of office so that they are guaranteed full independence in the actions taken and that no apprehension arises that they may be dismissed the moment their actions are not accepted by their superiors’.  Expressing concern about the prosecutors against whom disciplinary proceedings and explanatory procedures are initiated by the Disciplinary Ombudsperson of the Public Prosecutor General and his deputies, and in the interests of the very Disciplinary Ombudsperson of the Public Prosecutor General and his deputies who actively engage in the performance of the duties entrusted to them, the National Ombudsman formulated the following view: ‘if disciplinary ombudspersons take actions without being properly appointed, one must conclude that they act overstepping their competences and the actions they take come down to abuse of power’.

As the National Ombudsman sees it: ‘if disciplinary ombudspersons take actions without statutorily conferred authority, one must find their appointments defective in legal terms, and the prosecutor appointed to the office takes explanatory and disciplinary actions without the required legal grounds.  Consequently, all those actions will be scarred with a legal defect, and this inevitably questions the correctness of the proceedings held and completed to date’.

In his presented line of argument, the National Ombudsman invoked the need to protect civil rights and respect the fundamental rules of a democratic state of law, as ensuing from the Constitution of the Republic of Poland.

In reply to the above inquiry, in his letter of 17 June 2020 the National Public Prosecutor, Bogdan Święczkowski, informed the National Ombudsman that: ‘the procedure of appointing prosecutor disciplinary ombudspersons complies with the formal requirements laid down in the respective regulations of the law and is transparent’.  The National Public Prosecutor expresses the view that the Public Prosecutor General holds the authority to appoint disciplinary ombudspersons ‘for the term of office’, as well as to ‘temporarily entrust them with the duties of the disciplinary ombudsperson’, which, as he sees it, stems ‘not only from the regulations of the law, but also from years-long practice’.  One should note that the National Public Prosecutor did not provide the National Ombudsman access to copies of the deeds appointing prosecutors to the function of prosecutor disciplinary ombudspersons.

The Lex Super Omnia Association of Prosecutors shares the doubts of the National Ombudsman about the suspected infringement on the law in the procedure of appointing prosecutor disciplinary ombudspersons.

Pursuant to the principle of legalism (rule of law) laid down in Art. 7 of the Constitution of the Republic of Poland, public authorities act based on the law and within the boundaries of the law.  The doctrine of the constitutional law and the body of judgments of the Constitutional Tribunal contain repeatedly formulated thesis that presuming competencies of state authorities is forbidden.  It has been pointed out that any actions of the authorities taken without their legal basis and outside the law or with the law boundaries infringed upon are always illegal.

In addition, one should point to the institutional (of special significance) and guarantee-carrying nature of the set term of office, an attribute of the statutorily guaranteed independence of the prosecutors performing the functions.  In a substantial number of the analysed cases, the ‘incorrectly appointed’ Deputy Disciplinary Ombudspersons for individual divisional districts held their function for a time shorter than the law-stipulated 4-year term of office, and their appointment to the function did not end in the way specified in Art. 153(4) of the Act on the Public Prosecution Service, i.e. upon the lapse of the 4-year term of office or dismissal in the particular cases specified in the Act of law.  In other words, the duration of holding the function was, in contradiction with the regulations of the Act, made dependent solely on the will of the person who appointed the prosecutor to the function of the Deputy Disciplinary Ombudsperson.

It needs to be stressed that the statutorily-stipulated term of office must not be subject to arbitrary and discretionary restrictions and become the object of its instrumental perception and treatment by the persons managing the Prosecuting Services.  The time of appointment to an independent function held for a term of office should doubtlessly be defined in the way specified in the deed of appointment to the function and in such a way as to enable its performance in absolute independence.  Obviously, the revealed contra legem actions and the attempts made to ‘evade’ the essence of the term of office result in delegitimisation of the actions and consequently finding no authority to hold the function by the appointees.

The after-effect of the above appears to consist in the arisen substantiated suspicion that the illegally appointed Deputy Disciplinary Ombudspersons acted in overstepping their authority and to the detriment of the public interests and the private interests of the prosecutors subject to disciplinary actions they took.

Irrespective of the above comments on the illicit actions of the Public Prosecutor General and National Public Prosecutor in pursuance of their obligation to appoint prosecutor Deputy Disciplinary Ombudspersons for divisional districts, stemming from Art. 153(1) of the Act on the Public Prosecution Service, one should note the suspected infringement on the law, consisting in lawless allocation of duty allowance of at least 0.4 the base salary to the prosecutors appointed in the period from May 2016 to May 2019.

Noteworthy, the relevant Regulation of the Council of Ministers which defined the size of the duty allowance owing to prosecutors, Deputy Disciplinary Ombudspersons, was first issued as late as on 28 February 2019 and came into force and effect as of 1 May 2019.

IV THOSE ‘EQAUAL AND MORE EQUAL’ APPLICABLE TO DEPUTY DISCIPLINARY OMBUDSPERSONS – THE PRINCIPLE OF EQUAL TREATMENT OF PROSECUTORS.

One of the basic obligations of every prosecutor, also the one performing the duties of the disciplinary ombudsperson, are those of impartiality and equal treatment.  This stems directly from the Act on the Public Prosecution Service where the regulation of Art. 6 reads: ‘The prosecutor is obliged to take actions specified in acts of law being guided by the principle of impartiality and equal treatment of all citizens’.  The obligation originates from the right of each and every citizen, guaranteed in Art. 32(1) of the Constitution which states that: ‘Everyone is equal in law.  Everyone has the right to be treated equally by the public authorities’.

Are the prosecution services today, including deputy disciplinary ombudspersons, guided by the principle of impartiality and equal treatment of the citizens, prosecutors being citizens too?

On 11 January 2020, the streets of Warsaw witnessed a March of a Thousand Robes.  In this way all legal circles, the fact adding to its impact and value, protested against the threat to independence of the Polish courts, expressing commitment to the trias politica principle and protest against the threat that a rank and file citizen will have no access to an independent court.  As the organisers of the protest wrote in the first lines of their invitation to the event, the purpose was to give expression to the protest against gagging the lawyers and to express respect for the national and European laws.  The Lex Super Omnia Association of Prosecutors was a co-organiser of the event.  Many prosecutors took part in the March of a Thousand Robes.  The meeting they took part in had no political patrons.

Symptomatically, the prosecutors marching in their red sashes arm in arm with lawyers in attires draped in violet, green, blue, as well as white-and-red, were greeted with words of special recognition.  The nice words, though, reminded of the sad truth of the actual margin of independence of the prosecutor.

The reaction of the management of the prosecuting services, or at least some of the superiors of those prosecutors who decided to take part in the protest, came soon.  At this point, it must be stated clearly that the latter decided to exercise one of the fundamental civil rights in our country: the freedom of assembly.

The Deputy Disciplinary Ombudsperson of the Public Prosecutor General for the Warsaw divisional district, prosecutor Małgorzata Ziółkowska – Siwczyk, commenced explanatory proceeding provided for in Art. 154(1) of the Act on the Public Prosecution Service as early as in January 2020; the procedure aimed at identifying the circumstances prerequisite for declaring features of a disciplinary offence perpetrated by prosecutor Katarzyna Gembalczyk from the Warsaw Regional Public Prosecution Service in connection with her participation in the March of One Thousand Robes of 11 January 2020 in the her official attire.  In the letter of 21 January 2020, prosecutor Małgorzata Ziółkowska – Siwczyk notified prosecutor Katarzyna Gembalczyk of the possibility for her to file a written declaration or explanation in connection with the initiated preliminary actions, quote: ‘aimed at identifying the circumstances prerequisite for declaring features of a disciplinary offence consisting in the prosecutor’s wearing, during the public meeting in Warsaw on 11 January 2020, the prosecutor’s official attire, namely the robe, in contravention of its designation ensuing from the regulations of Art. 36 (6) of the above-cited act and of § 1(1) of the Regulation of the Minister of Justice, dated 7 July 2016 concerning determination of the official attire of prosecutors participating in court trials…’. The statement of the Lex Super Omnia Association of Prosecutors in reply to the actions of the disciplinary ombudsperson taken in connection with the prosecutors’ participation in the March of One Thousand Robes notes that the letter did not specify what the impropriety (abuse) came down to.  That was the first formal call of the type addressed at a prosecutor participating in the March of One Thousand Robes.  Later, it turned out it was not the only one.  Letters of similar content were received by further prosecutors of the Warsaw Regional Public Prosecution Service: Elżbieta Gielo and Dariusz Ślepokura.

It turned out that an urgent need to clarify the legality of prosecutors’ participation in the March of One Thousand Robes was noticed not only by the disciplinary ombudspersons, but their superiors too.  The superiors, being also superior in the disciplinary reporting line of the prosecutors, also took actions, though perhaps less formal.  Prosecutor Damian Gałek from the Nowa Sól District Public Prosecution Service received an oral call to provide explanation of his use of the robe during the March of One Thousand Robes.  The order to provide the explanation by prosecutor Damian Gałek came from the Zielona Góra Regional Public Prosecution Service.  This was not the end of the story, though, since in the letter of 23 January 2020 prosecutor Damian Gałek, just like the prosecutors from Warsaw, was summoned to give a statement by the Deputy Disciplinary Ombudsperson of the Public Prosecutor General for the Poznań divisional district, Ms Joanna Komolka.

Explanatory proceedings, as decribed above, were initiated not only by the Deputy Disciplinary Ombudspersons of the Public Prosecutor General for the Warsaw and Poznań divisional districts.  The Deputy Disciplinary Ombudsperson of the Public Prosecutor General for the Kraków divisional district, Ms Małgorzata Ciężkowska-Gabryś, sent a call similar to those described above to prosecutor Mariusz Krasoń from the Kraków Divisional Public Prosecution Service.

The ombudspersons for discipline named above proved exceptionally active and engaged in prosecuting, not to go as far as to say ‘hunting’, the prosecutors who took part in the March of One Thousand Robes.  The word ‘hunting’ is not used here accidentally, since calls addressed to specific prosecutors must have been preceded with analysis of the film and photographic documentation of the March.  In the context, one faces the question whether determination of the kind was born out of their own ponderings, or on inspiration by others.

Perhaps the answer should be looked for in the statement made by the National Public Prosecutor, Bogdan Święczkowski, in the programme entitled ‘The Journalist Poker’ broadcast on the Republica TV [Telewizja Republika] on 29 January 2020.

Bogdan Świeczkowski stated, quote: ‘The actions of the Lex Super Omnia Association of Prosecutors are getting more and more serious, and we have to consider certain matters in the category of offences.  What I mean is e.g. the misuse of objects being the state property, i.e. the robes, since some members of the Association wore them during the protest.  We are now in the course of analysing whether perhaps it already was an element of appropriation’.

Can the position of the National Public Prosecutor be defended in terms of the arguments of law?

The features of the offence or misdemeanour of appropriation (the robe prices ranging from PLN 339 to PLN 689, which is of significance for a lawyer in the context of a prohibited act of bi-type nature) are absolutely clear in the context of the considered facts.  The quoted words of the National Public Prosecutor, even if reflecting his first reaction, do not stand criticism in legal terms.  The impression they left is that they came as expression of emotion and irritation, a negative attitude towards independent prosecutors, and the actions taken must be perceived as attack on prosecutors’ independence, where the independence is also construed as the right to express an assessment of the way the law enforcement system or the bodies of the prosecution services function, even if the assessment is as different as day and night from the views presented even by the top superiors.

At this point, it is worth remembering the causes of the March of One Thousand Robes.  Its organisers wrote: ‘In December 2019 we witnessed an unprecedented intensity of actions taken by disciplinary ombudspersons, escalation of a campaign of slander against judges, unprecedented attacks from representatives of the executive powers agaist the First President of the Supreme Court and Judges of the Supreme Court, and finally the Sejm’s adoption of the so-called muzzle act intended to restrict the freedom of speech of the judges and penalise them severely in a highly discretionary manner.’  In this particular context it is worth putting side by side the words of the National Public Prosecutor and the position of the disciplinary ombudsperson of the judges of common courts, Judge Piotr Schab who, when asked on the radio (RMF FM) whether any disciplinary proceedings would be initiated against the judges who had participated in the ‘March of One Thousand Robes’, said: ‘At the moment I can see no grounds for taking any actions of the disciplinary nature in connection with the event’.  Asked further by the reporter, he stated as follows: ‘one needs to have clear causes to find that a judge’s behaviour could have constituted a grave violation of the law or an offence against the dignity of the office’.  At the moment, he said, ‘no such causes exist’.

For the sake of comparison, let us present the incident of October 2020 which also took place in Warsaw with its prime figure, prosecutor Marta Choromańska from the Warsaw Divisional Public Prosecution Service.  According to the reports in the media, on 20 October 2020 prosecutor Marta Choromańska took part in the meeting of the National Guard on the stairs leading to St Andrew Church in Plac Trzech Krzyży in Warsaw, organised by Robert Bąkiewicz, chief of the March of Independence association.  Robert Bąkiewicz explained to the media that the idea was to protect shrines from mass protests.  What needs to be emphasised is the fact that the formation of the National Guard came as a response to the public appeal from a politician, the person heading the political party currently in power in Poland.  Just to remind you, the March of One Thousand Robes was an initiative of the lawyer circles, and the organisers appealed: ‘Please, do not bring any banners, placards, or slogans.  Just flags.’  The prosecutor apparently took part in the public meeting on 27 October 2020, and it was already on 28 October 2020 that the National Public Prosecutor distributed a letter among all divisional public prosecution services country-wide concerning the participants of the then current protests stressing that: ‘any behaviour of anyone organising an illegal demonstration, or instigating one, or calling for participation therein, should be assessed primarily in the context of exhausting the features of an act prohibited by Art. 165(1)(1) of the Criminal Code in terms of bringing danger to the lives and health of many by causing an epidemiological risk’.  Now, one should contrast the above with the fact that prosecutor Marta Choromańska did not suffer any consequences of her activity.  In reply to parliamentary enquiry No. 1897 concerning participation of the prosecutor from the Warsaw Divisional Public Prosecution Service in the public meeting initiated by an organisation of political nature, the National Public Prosecutor Bogdan Święczkowski replied in his letter of 19 January 2021 that: ‘activities of a prosecutor in the sphere of freedom of conscience and religion are not activities of political nature, and as such are not subject to appraisal by the superiors’.  The National Public Prosecutor did not find the behaviour of prosecutor Marta Choromańska in violation of the regulations.  Similarly, in reply to parliamentary interpellation No. 15116 lodged with the Minister of Justice in the matter of prosecutors’ participation in events of political nature, as exemplified by the prosecutor’s participation in the defence of the church in Warsaw, the National Public Prosecutor, Bogdan Święczkowski, stated as follows in the letter of 29 December 2020: ‘the spheres of freedom of conscience and religion do not classify as political activity’, and in this way found the interpellation objectless.

Noteworthy, the described cases are not the only ones where prosecutors are summoned in disciplinary procedures for participation in public meetings.  In July 2017, prosecutor Piotr Wójtowicz from the Legnica District Public Prosecution Service took part in a protest held in front of the Regional Court in Legnica in defence of independence of courts.  The Deputy Disciplinary Ombudsperson of the Public Prosecutor General for the Poznań divisional district discontinued the proceedings initiated in the case concluding that a prosecutor may participate in peaceful meetings, and participation in an assembly of the kind is not the same as political activity.  As concerns the prosecutor’s words spoken at the meeting, the Deputy Ombudsperson found them sarcastic and out of place, though at the same time found their social harmfulness marginal.  However, the National Public Prosecutor, Bogdan Święczkowski, appealed from the decision.  Noteworthy, an appeal from it was also lodged by prosecutor Piotr Wójtowicz who negated the correctness of the legal basis of discontinuance of the proceedings.  What deserves noting is the fact that the defence counsels of prosecutor Piotr Wójtowicz before the disciplinary court pointed to double standards of the Prosecution Services and claimed they served as an instrument of repression against prosecutors.  To avoid groundlessness, one should mention the specific facts referred to by the defence counsels of prosecutor Piotr Wójtowicz who accused the National Public Prosecutor claiming he was prosecuting a prosecutor for participation in a peaceful meeting while he himself had actively been involved in backing the governing party and called directly for voting for the party, and run for the elections to the regional assembly and parliamentary elections, his candidature on the lists of the party.  Ultimately, the disciplinary court did not grant the appeal from Bogdan Święczkowski but the one lodged by the prosecutor finding his participation in the manifestation in defence of free courts devoid of any features of a disciplinary offence.  However, the National Public Prosecutor, Bogdan Święczkowski, has filed a cassation appeal in the matter which remains uncognised as yet.

As concerns compliance with the equal treatment obligation (or rather non-compliance therewith), one can present further examples.

The so-called ‘case of two towers’ gained wide coverage in public opinion.  The verification proceedings in the case, following the filing of the offence notification, lasted almost 9 months.  The specificity of the case consisted in the fact that the notification concerned the person heading the political party which governs Poland.  On the background of the case one should present the regulation of the Code of Criminal Procedure relating to the duration of the verification procedure.  Speaking of the procedure we mean proceedings the purpose of which is to find out whether the data provided in the notification of the offence give grounds to initiation of the preparatory proceedings, i.e. an investigation or inquest.  To that aim, as the regulation of Art. 307(1) of the Code of Criminal Procedure stipulates, one can require supplementary data to those provided in the offence notification within the set term, or verify the facts in this respect.  In the verification proceedings no evidence of expert opinion is taken, or any actions requiring the taking of a record, except for reception of oral notification of offence or request for prosecution.  It is a rule that witnesses are not interviewed in the verification proceedings.  The only exception is that the data provided in the notification of offence may be supplemented in the form of taking the witness’ statement, though only from the person reporting the offence.  The decision as to the initiation of an nvestigation or refusal to initiate it should be issued no later than within 30 days following the receipt of the notification.

Obviously, the literature on the topic commonly assumes that the procedural term set in Art. 307(1) of the Code of Criminal Procedure is instructional in nature.  This means that if the time limit is exceeded, no procedural consequences follow, although one should mention the regulation of Art. 306(3) of the Code of Criminal Procedure which reads that if the natural person or institution who/which filed a notification of an offence is not notified of initiation or refusal to initiate an investigation within 6 weeks, he/she/it can lodge a complaint with the prosecutor superior or appointed to supervise the unit with which the notification was first filed.

The fact that no procedural decision was made in the described case for the period of nearly 9 months was broadly commented on in the public space.  The commentators, frequently lawyers, formulated a number of critical comments thereon.  The purpose of the authors of this ‘Report’ is not to address the comments, but to draw attention to a different aspect of the case.  In that particular instance, the management of the Prosecution Services saw no irregularity in the duration of the verification proceedings which evidently and strikingly exceeded the time limit prescribed for proceedings of the kind (which, as admitted above, is instructional in nature), or at least the management of the prosecution services did not express any criticism or even ‘regret’ because of the delay in the public space.  Furthermore, in reply to the interpellation from Krzysztof Brejza, MP of 14 May 2019, prosecutor Agata Gałuszko – Górska, Deputy National Public Prosecutor, remarked, quote: ‘the decision to initiate preparatory proceedings, as stipulated in Art. 303 of the Code of Criminal Procedure, is issued, if a substantiated suspicion arises that an offence was actually perpetrated.  In the case of the notification from Gerard Birgfellner no such facts have to date been found.  This makes continued verification procedure necessary.  The deadline set in Art. 307(1) of the Code of Criminal Procedure is instructional in nature’.

The above should be contrasted with the fact that in other cases when the instructional deadline set for the verification procedure was exceeded, the prosecutors were burdened with disciplinary consequences.

Prosecutor Krzysztof Parchimowicz was penalised with the disciplinary sanction of admonition imposed by the Regional Public Prosecutor in Warsaw on 20 March 2019 for ill efficiency of the proceedings given the reference number PR 1 DS 679.2016, conducted by the Warsaw Mokotów District Public Prosecution Service in Warsaw.  The sanction of admonition was imposed for the disciplinary fault consisting in obvious and gross infringement on the law the prosecutor was said to have committed in such a way that being the lead prosecutor in case ref. PR 1 Ds 679.2016 at the Warsaw Mokotów District Public Prosecution Service in Warsaw, in contravention of § 119(2) of the Regulation of the Minister of Justice of 7 April 2016, i.e. the Rules of internal procedure of common organisational units of the prosecution services, and of Art. 307 of the Code of Criminal Procedure, he started the proceedings in the notification of an offence which reached the Prosecution Office on 5 August 2016 as late as on 12 December 2016, where the period of idleness he was found guilty of was assumed to start running on 2 September 2016.  The prosecutor ordered taking measures under the verification proceedings the deadline for which elapsed on 4 September 2016, and doing so he simultaneously infringed on the obligation to resolve the matter within a reasonable time, as expressed in Art. 2(1)(4) of the Code of Criminal procedure.  This added up to the offence contemplated in Art. 137(1) of the Act on the Public Prosecution Service.  In the decision of 3 October 2019, the Disciplinary Court granted the objection filed by prosecutor Krzysztof Parchimowicz and discontinued the proceedings in the case.  The Court found that prosecutor Krzysztof Parchimowicz had not committed any major or blatant infringement on the efficiency of supervising and conducting the proceedings of the reference No. PR 1 Ds 679.2016.  The Court argued that there were no reasons to find the prosecutor guilty considering the prosecutor’s annual leave, medical leaves, and his performance of other duties.

Nevertheless, the Deputy Disciplinary Ombudsperson of the Public Prosecutor General for the Warsaw divisional district found it proper to file an appeal in the case against prosecutor Krzysztof Parchimowicz.

Here is the question which arises: was it of any significance for the decision and if so how significant was the fact that at the time prosecutor Krzysztof Parchimowicz was the president of the board of the Lex Super Omnia Association of Prosecutors and his critical remarks on the management of the Prosecution Services appeared in the public space?

In contrast to the above, one should mention another case (which alongside the one described above lingers in the public space as the case of ‘two towers’), where exceeded instructional deadline prescribed for the verification procedure did not carry any negative consequences from the management of the Prosecution Services or the disciplinary ombudsperson, and where several months’ long verification proceedings seem to be deemed a standard not infringing on the regulations of the criminal procedure.

Here, we mean the notification of an offence filed with the Prosecution Services in July 2020 by the President of the Supreme Audit Office who accused his deputy of overstepping his authority.  Asked by a journalist of progress in the case about 6 months following the filing of the notification, the press spokeswoman of the Warsaw Regional Public Prosecution Service answered that ‘verification operations are being taken in the case’.  Further into her statement, she reasoned that ‘the term referred to in Art. 307(1) is instructional in nature.  The decision as to further course of the proceedings shall be made upon completion of the verification operations regulated by the previously cited regulation’.  Hence, the prosecution authorities ponder the question of a reasonable term in one case, and do not do so in another case.

Upon presentation of the two cases, it is worth stating that in the event a disciplinary superior prosecutes or reviews the files of one prosecutor or a selected group of prosecutors, he/she should be able to name the criteria he/she is guided by when initiating explanatory and disciplinary proceedings with respect to some prosecutors, and not taking any steps with respect to others, and should be able to name them today.

The answer had better be convincing, since such questions are already asked and more likely than not one should anticipate them ever more often in the future.

Deputy disciplinary ombudspersons demonstrate fairly high activity and engagement in initiating explanatory and disciplinary proceedings with respect to the prosecutors, members of the Lex Super Omnia Association of Prosecutors, who speak constructively but critically of the effects of the so-called good change in the prosecution services.  In the interview of 24 January 2016 for the Gazeta Prawna daily, Mr Bogdan Święczkowski claimed that the new legal regulation of Art. 137(2) of the Act on the Public Prosecution Service introduced to the Act, was to apply e.g. to prosecutors speaking critically of, quote: ‘their own firm’.  He added that earlier on the grounds could be found in infringement on the dignity of the office.  One can only complement Mr Bogdan Świeczkowski’s statement saying that despite the lapse of 5 years from the interview, the regulation does not apply to situations as indicated above.

The management of the Prosecution Services and Deputy Disciplinary Ombudspersons should be reminded that according to the Constitution of the Republic of Poland and the Associations Law, prosecutors, just like all other citizens, enjoy freedom of expression and association.  These are the fundamental rights ensuing from the European Convention of Human Rights and Fundamental Freedoms.  Opinion No. 9 (2014) of the Consultative Council of European Prosecutors, dated 17 December 2014, on the standards and principles building the status of the prosecutor, as well as Recommendation Rec. (2000) of the Council of Europe of 6 October 2000 on the role of public prosecution in the criminal justice system explicitly state that prosecutors have the right to participate in public debates on topics concerning the law, judicial system, and protection of human rights.  The above was confirmed by the ECHR in the judgment of 5 May 2020 in the case of Laura Kovesi versus Romania.  Regretfully, one can see that the above arguments are of no significance to Bogdan Święczkowski, National Public Prosecutor, who might have forgotten or is unaware that Polish prosecutors are also European prosecutors.  He prefers the simple method of the ‘stick’ he hurls at random aiming at subjugating the defiant prosecutors.

The current National Public Prosecutor, Bogdan Święczkowski, when ordering his disciplinary ombudspersons to take specific actions, seems reluctant to see that his activities outside the prosecution services have become a reference for assessing whether a specific activity of a prosecutor represents an infringement on the dignity of the prosecutor’s office in informal relations.

The profuse activity of the current superior officer of the prosecution services, in which he engaged in the years 2008 – 2015 and which, in line with the principle, remained outside the matters of interest to the disciplinary ombudsperson, exemplifies all kinds of extra-professional actions of the public prosecutor.

The best examples in this respect seem the activities of the current National Public Prosecutor who (as publications in the media indicate), when running for the regional assembly of the Śląskie Voivodship and the Parliament supported by the ‘Prawo i Sprawiedliwość’ political party, being a retired prosecutor, participated in election meetings and gave support to another candidate of the same political group, aspiring to the function of an MP.

During one of such election meetings, Bogdan Święczkowski apparently expressed his views on voting for the political party of ‘Prawo i Sprawiedliwość’.  When running for a mandate of a councilor of the regional assembly of the Śląskie Voivodship, he took part in a press conference organised in Będzin in November 2010.  Information on the event was posted on one of the Internet portals.  The photograph intended to document its course shows the current National Public Prosecutor presenting himself against the logotype of the political party.

Another publication posted on the swidnica24.pl Internet portal reports that Bogdan Święczkowski allegedly told a journalist of the medium that ‘he had been unrightfully retired as a prosecutor’.  Allegedly too, he said that ‘political ambitions are more important, the question of a real impact on the judicial system’.  He pointed to the postulates of his campaign such as dismissal of the then current ‘officers of Platforma Obywatelska’, depriving judges of their immunities and supervising their work.  The publication was illustrated with a photo of the current National Public Prosecutor who presented himself wearing a T-shirt with the following inscription: ‘Tusk Vision Network; I DO NOT WATCH IT; I DO NOT READ SH…T.

During the elections to the Sejm, in the early October 2011 the current National Public Prosecutor is said to have taken part in a meeting of the campaign nature organised in Kędzierzyn Koźle by Patryk Jaki running for the elections from the list of the ‘Prawo i Sprawiedliwość’ party.  The meeting is said to have begun with Bogdan Święczkowski supporting the candidature of the politician, where both posed against election materials bearing the logotype of the political party of ‘Prawo i Sprawiedliwość’, and a respective photograph illustrating the event was published on the website of the ‘Nowa Trybuna Opolska’ daily.

Moreover, on the website of one of the national TV stations a journalist publication was uploaded with a recorded fragment of the meeting of Bogdan Święczkowski as a councilor of the regional assembly of the Śląskie Voivodship, which took place in Częstochowa in July 2010.  During the meeting, asked how the Prawo i Sprawiedliwość party intended to convince its electors to back its programme, the current National Public Prosecutor is said to have replied: ‘I urge taking the vote; vote for this sole and only power which will let Poland survive’.

In the light of the presented examples of the activity of the National Public Prosecutor which, to an extent define the peculiarly construed ‘standard’ of the prosecutor’s behaviour out of office, the disciplinary proceedings against other prosecutors, as presented in this study, may be perceived as embodiment of the prosecutor’s double behavioural standards not only by the prosecutor circles, but by the general public as well.

Presenting the described facts, the authors of this ‘Report’ submit it to the readers’ review so as to arrive at an answer to the following question: is the current management of the prosecution services guided by the principle of impartiality and equal treatment of the citizens who join the ranks of the very services?  The answer is of non-trivial significance.  After all, compliance with the principle of impartiality and equal treatment is the obligation of each and every prosecutor.  Hence, one should ask the following question: how should a lawyer assess failure to perform the duty, if it occurs?

RECAPITULATION

This Report comes as the first attempt to provide a comprehensive picture of all issues related to persecution of independent prosecutors by the political power heading the prosecution services, and to present the sequence of consecutive actions whilst naming the repressed and indicating the intensity of the phenomenon, its methods and forms of execution.

This is of extreme significance, since the actions were intended by the Public Prosecutor General, Zbigniew Ziobro, and his First Deputy National Public Prosecutor, Bogdan Święczkowski, to marginalise those prosecutors whom they found defiant and not bowing before the authorities due to their independence.

At this point, one should remember that back in 2016 the management of the prosecution services proudly signing under the slogan of ‘a good change in prosecution services’ actually succeeded in triggering a peculiar earthquake, demoting 114 experienced prosecutors to organisational units of lower levels in the procedure raising constitutional doubts.  This was an action by all means unparalleled and unprecedented, since for the sake of individual interests of the power in authority ruling via controllable prosecution services many prosecutors were deprived of their professional achievements and employee dignity.

Later years revealed clearly that the main purpose of the so-called reform in the prosecution services was to rotate the personnel.  Over a brief period the prosecution services were totally restructured with promotions to high positions of the nearest acquaintances and young prosecutors prevailingly lacking ideology to whom quick promotion, power, and the resulting personal profits were more important than the content of the prosecutor oath.  Indeed, one of the main assumptions underlying the alleged reform of the prosecution services came down to using functional changes for the creation of a group of people who would take actions and decisions consistent with the expectations of their political patrons without any reservations.

Thus, making the degradation decisions the management of the prosecution services was certain that the impact of that restrictive personnel decisions would be strong enough to marginalise the prosecutors who did not inspire confidence and wipe out any thought of independence.  A message of the kind came straight from the lips of the prominent activists of the ‘good change’.

It turned out, however, that their way of thinking was ungrounded, since attempts at hushing the circles of independent prosecutors have proved unsuccessful.  The prosecutors grouped around the association registered in 2017 under the name Lex Super Omnia (law above all). The association engaged in very difficult but open struggle to retain certain operating standards of the prosecution services, all explicitly stated in the statute-defined goals ensuing from the EU recommendations or the opinion of the Venice Commission on the currently binding Act on the Public Prosecution Service.

The Management of the National Public Prosecution Service noted in disbelief the lawsuits filed by several prosecutors with the common courts and the substantive positions they presented, which undermined the arguments of the prosecution management concerning the possibility and effectiveness of questioning the demotion or delegation decisions.

As a surprise too, came the presentation of substantive and extremely diligent reports of the Association, which revealed superficiality of the introduced changes and most of all no success of the so-called good change in the prosecution services.  Even more surprising was the appearance of prosecutors in the public space and open criticism of representatives of the good change in the prosecution services and the actions they took.

Our astonishment, on the other hand, is caused by the fact that the management of the prosecution services, having an immense body of officers at their disposal, has been unable to address the accusations formulated and the errors and irregularities pointed to in a substantive manner.  This inability has frustrated the management of the National Public Prosecution Service and after a period of belittling the Lex Super Omnia Association of Prosecutors the time has come for reflection and taking actions of the retortion and chicane nature, connected with initiation of official proceedings, first explanatory, then disciplinary against the prosecutors actively engaged in the association.  One of the first proceedings of the kind were the ones concerning the posting of a critical message on the Lex Super Omnia website; the message criticised the actions of the prosecution services, and specifically of the Divisional Public Prosecutor in Katowice who, in an official communication, condemned the judge presiding over a criminal case of particular interest to the Minister of Justice, Public Prosecutor General.  Shortly afterwards, repressive actions were taken with respect to those prosecutors who became the faces of the independent organisation, most of all prosecutor Krzysztof Parchimowicz against whom many disciplinary charges were pressed, some of them absurd, in connection with his public statements.  In consequence, he has become a person doing the so-called ‘disciplinary tourism’ which forces him to participate in the measures of disciplinary ombudspersons all over the country, and then engage in disciplinary trials.  Chicanes of the kind have affected many prosecutors, although one cannot claim they are symptoms of any system-based line of action; instead, they rather represent irrational and emotional behaviours.  All of them have been presented in this report.

The report also gives us an opportunity to show the prosecutor circles that there are equal and more equal when it comes to bearing disciplinary responsibility, including support from the National Public Prosecutor, Bogdan Święczkowski, or his Deputy, prosecutor Agata Gałuszko – Górska.

Irrespective of the above, in specific cases politically important for those in rule, criminal proceedings have been initiated against prosecutors making procedural decisions accused of white-collar crime and succeeding in waiving their immunity through judgments of the body called the Disciplinary Chamber.  Of course, cases of the kind come as yet another signal indicating that any action discordant with the political expectations can be anticipated to trigger similar repercussions.  Actions of the kind, violating prosecutors’ independence, have been intended to carry a chilling effect, just like many other measures such as delegations, also away from the usual place of abode.

Well known is the fact that the prosecution services have one instrument which enables swift execution of the penalty imposed, without the need to wait for the judgment of the disciplinary court and the accompanying procedures.  It is the individual decision of the Public Prosecutor General or National Public Prosecutor to delegate a prosecutor to a unit of a lower level, and by far the most powerful ‘gun’, namely the decision to delegate a prosecutor without his/her consent kilometres away from his/her usual place of abode.  Initially, the measure was used sparingly and discretionally, however helplessness of the management of the prosecution services in cases of independent prosecutors has encouraged the National Public Prosecutor, Bogdan Święczkowski, to make yet another unprecedented decision to delegate seven prosecutors to distant organisational units without stating any reasons and all at the same time, i.e. in January 2021.  Curiously, the delegations have affected the lead representatives of the Lex Super Omnia Association of Prosecutors.

The decisions, however, did not manifest the power of the rulers; on the contrary, they came as a specific symptom of helplessness with respect to independent prosecutors.  They did not achieve their intended goal, since in the meantime further prosecutors joined the association.

Probably one of the actions of the National Public Prosecutor ranking next to last and his attempts to wipe out independent prosecutors consisted in bringing an action of the SLAPP type (strategic lawsuit against public participation) against the acting president of the management board of the Lex Super Omnia Association of Prosecutors, Ms Katarzyna Kwiatkowska, and claiming compensation of PLN 250 000 from her for alleged damage to the reputation of the prosecution services.  The goal of the action is not to win the court case, but to silence criticism by creating the so-called ‘chilling effect’.  In actual fact, however, this is an expression of weakness of the management of the prosecution services represented by Zbigniew Ziobro and Bogdan Święczkowski, and of the falling myth of their strong characters.

The years of their rule show that they are unable to engage in discussion with the opponents and their authority is built only on fear and institutional bribery.  Their ‘courage’ ends in the at the threshold of their study, since they never find time to appear before the Labour Court and name the criteria which guided them in their demotion decisions.

The array of repressive measures presented in this study, as well as the number of individuals (incomplete as it is) affected with retortions of various kinds visualise the scale of the phenomenon and at the same time make the reader realise that the persecution affects primarily those who are the name persons of the Lex Super Omnia Association of Prosecutors and are not afraid to stand up openly to confront Zbigniew Ziobro and Bogdan Święczkowski.

In other words, this report is more than a chronicle picturing the nature and the scope of the chicanes employed with respect to the few independent prosecutors, it also appeals to the prosecutor circles, our peers aware of the misdeeds happening in the prosecution services, of violation of prosecutor’s independence, to actively join and support the prosecutors fighting for law and order in Poland and for modern and independent prosecution services.

This is because the more opposing voices and open protest, the greater hope for stopping chicanes and retortions, so easily targeted at a specific group of people.

We should all hope that the chicanes described in this report will not prove an element demotivating decent individuals in the prosecution circles from joining the effort aimed at achieving independent and politics-free prosecution services; we should hope that they will trigger the opposite effect proving that despite negative consequences it is worth to contribute to the building of a new institution.

The prosecutors who respect the content of their oath will not be broken by retortions and chicanes!

‘Honour is a luxury which can only be afforded by a free man’

Lois McMaster Bujold