Independence of the prosecutor’s Office

Critical assessment of the system solution consisting in the reconnection of the office of the Minister of Justice with the office of the Prosecutor General is also deprived of objectivity (this assessment is presented in point 32 of the Project).

The Polish Constitution does not prejudge the systemic location of the prosecutor’s office, and the solutions criticized by the Commission were already functioning in the conditions of a democratic Polish state in the years 1990-2010.

It should be emphasized that there are different models for the functioning of the prosecutor’s office in democratic countries. The legislator is not limited here by the norms of international law, which do not introduce rigid rules ordering the location of the prosecutor’s office in a specific relationship with the executive, legislative or judicial authority. Solutions in which the Minister of Justice has extensive powers to interfere in the activities of the prosecutor’s office (including in individual cases) operate in a number of European countries, e.g. in Germany, France, Belgium or Luxembourg).

The model of the prosecutor’s office subordinated to the executive branch also functions in Austria, France, Czechia, Spain, the Netherlands and Romania. The equivalence of the prosecutor’s office model based on government dependence over the model of the prosecutor’s office independent of the executive authority is provided for in the Rec Recommendation (2000) 19 of the Committee of Ministers of the Council of Europe on the role of the prosecutor’s office in criminal justice.
It should be emphasized that there is only a personnel union between the offices of the Minister of Justice and the Prosecutor General, and the competences assigned to both these offices are autonomous with each other.

The Prosecutor General is the supreme body of the prosecutor’s office and, while performing tasks in this area, he is not subject to the leadership of any other state body, in particular the Prime Minister. Furthermore, the prosecutor’s office is in fact managed by deputy prosecutors general who are apolitical prosecutors.

Of particular importance here is the position of the National Prosecutor, who, as the First Deputy of the Prosecutor General, has a number of his own powers, resulting directly from laws, and in addition – like other deputies of the Prosecutor General – can be removed from office only with the consent of the President of the Republic of Poland.

The solutions presented above are important and effective system guarantees of the independence of Polish prosecutors.