Foundations of the Draft Amendment to the Act on the Public
Prosecutor’s Office
The Draft Amendment of 7 February 2008 to the Act on the Public Prosecutor’s Office
and several other Acts
The purpose of the Draft Amendment to the Act on the Public Prosecutor’s Office is to reform the organization of the public prosecutor’s office in Poland. The main purpose is to establish independence of the public prosecutor’s office from the executive branch. This project is also aimed at assuring independence of public prosecutors. According to the draft, public prosecutors shall make their decisions independently and individually.
Facing the need for apolitical public prosecutor’s office, it was essential to ensure the concrete guarantees of independence for public prosecutors within the exercise of their competencies. Moreover, it was necessary to outline the principal rules of the structure of the public prosecutor’s office.
In order to meet the demands set in the acts of international organizations, this draft is setting the public prosecutor’s office a new task - improving a cooperation with international partners.
The most important amendment is the separation the function of Minister of Justice from the function of General Prosecutor. According to the draft, the General Prosecutor is being appointed by the President for a 7-year term of office from two candidates proposed by the Minister of Justice. The candidates are proposed – one by the National Council of Public Prosecutors and one by the National Council of the Judiciary.
In the event that the General Prosecutor has not been appointed in 2 months term since the motion, the Marshal of the Sejm (Lower House of the Polish Parliament) shall appoint the General Prosecutor from above mentioned candidates. The General Prosecutor may not be chosen for more than one term of office and he has the right to retirement without attaining retirement years. The provisions of termination of office are very strict in the draft.
The National Council of Public Prosecutors composed of representatives of public prosecutors, legislative and executive branch is a new organ foreseen in the draft. The Council will have the right to elect the candidate for the General Prosecutor and to propose the motion to recall him from the function by the President.
Under the provisions of the draft, the function of Regional Public Prosecutor is performed for a 6-year term of office and the function of District Public Prosecutor for a 4-year term of office. Only the District Public Prosecutor shall have the right to perform the function for more than one term of office.
Additionally, in place of the National Public Prosecutor’s Office will be created the General Public Prosecutor’s Office. The Appellate Public Prosecutor’s Office is intended to liquidation, whereas the Local Departments of the Organized Crime Office will be situated in the structure of the General Public Prosecutor’s Office.
However, the new structure organized on three levels:
- The General Public Prosecutor’s Office
- The Regional Public Prosecutor’s Offices
- The District Public Prosecutor’s Offices
doesn’t mean the deprivation public prosecutors of possibility of increasing their salaries, because of a proposition of the new financial status scheme.
Last but not least, a plan for a budget autonomy of public prosecutor’s office like in the Law on the Organization of Courts. The financial autonomy should ensure the effectiveness of reforms to the organization of the public prosecutor’s service in Poland.
The guarantees projected for the independence of the public prosecutors within the exercise of their competencies are as follows:
- the higher-ranking public prosecutor may not issue the lower-ranking public prosecutor the instructions to the content of the decisions
- the directly superior public prosecutor is the only authority entitled to change or overrule the decision of the lower-ranking public prosecutor
- the public prosecutor may be transferred to another public prosecutor’s office without his consent only for a maximum of 6 months a year (an article 50 paragraph 1a of the Act on the Public Prosecutor’s Office giving the right to transfer for a maximum of 12 months without the consent shall be abrogated)
- the right to go into retirement in case of reorganization of the structure of the public prosecutor’s office (the provisions of the Law on the Organization of Courts shall be applicable to such situation)
The Draft of Amendment is the next step towards better cooperation in exchange and gathering of information with the international organizations, the supranational organizations and the bodies of the European Union. The scope of duties of the public prosecutor’s office will be extended in this area.
The obligation to cooperation in exchange of information was set in the following Acts:
- Council Decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (2002/187/JHA)
- Council Decision of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences (2005/671/JHA)
- The United Nations Security Council Resolution 1373 against terrorism and other resolutions concerning serious crime.
*This text has been based on the Draft Amendment of 7 February 2007 to the Act on the Public Prosecutor’s Office and several other Acts, explanatory statement of the draft, Act on the Public Prosecutor’s Office of 20 June 1985.