Mechanisms guaranteeing the independence of judges in Poland
The Polish Constitution and the laws guarantee the independence and autonomy of judges. Poland is of the opinion that these are indisputable principles of the judicature and, at the same time, guarantees of the systemic position of the courts as organs of the third authority, which has the constitutional status of a separate and independent authority (Article 173 of the Polish Constitution). Under Polish law, the independence and autonomy of judges are fully guaranteed through instruments such as:
1) the judge is subject only to the Constitution and the law;
2) appointment for an indefinite period of time;
3) irremovability of the judge;
4) prohibition to transfer the judge without his consent;
6) material conditions of practicing the profession;
None of the reforms introduced by the United Right government violated those instruments.
Independence of the prosecutor’s office
The critical assessment of re-joining the office of the Minister of Justice with the office of the General Prosecutor lacks objectivity. The Polish Constitution does not determine the systemic position of the prosecutor’s office, and the solutions criticized by the Commission already functioned in the conditions of a democratic Polish state in 1990-2010. It should be emphasized that in democratic countries there are different models of the functioning of the prosecutor’s office. The legislator is not limited by the norms of international law, which do not introduce rigid rules that would require situating the prosecutor’s office in a specific relation to the executive, legislative or judiciary authority. Solutions in which the minister of justice has extensive powers to interfere in the activities of the prosecution office (including in individual cases) exist in a number of European countries, e.g. in Germany, France, Belgium or Luxembourg. The model in which public prosecution is subordinated to the executive power is also used in Austria, France, the Czech Republic, Spain, the Netherlands and Romania. The equivalence of the model of prosecution based on dependence on the government in relation to the model of the prosecution independent from the executive branch is provided for in the Recommendation Rec (2000) 19 of the Committee of Ministers of the Council of Europe on the role of the prosecution service in the criminal justice system.
It should be emphasized that there is only a personal union between the offices of the Minister of Justice and the Public Prosecutor General, while the powers assigned to both of these offices are autonomous. The General Prosecutor is the supreme organ of the public prosecutor’s office and while performing tasks in this area he is not subject to the guidance of any other state authority, in particular the Prime Minister. Furthermore, the activities of the public prosecutor’s office are actually managed by the Deputy General Prosecutors, who are apolitical public prosecutors. Particularly important is the position of the National Prosecutor, who, as the First Deputy of the General Prosecutor, has a number of his own competences, resulting directly from the statutes, and, moreover – like other deputies of the General Prosecutor – may only be dismissed from office with the consent of the President of the Republic of Poland.