Questionnaire Poland
III.1 Does the prosecution service have the same independent position as the judiciary?
No. But some explanation is needed. Generally, during dispensing his duties prescribed by law, the public prosecutor is independent with exceptions formulated in sect. 8 PSA. Those exceptions provide that the public prosecutor must perform orders, guidelines and instructions issued by the superior prosecutor. An instruction relating to a content of a given action shall be issued by the superior prosecutor in writing, and on the prosecutor’s request with reasons. In case when transmission of such an instruction in writing is hampered, it shall be permitted to issue an instruction orally and the superior prosecutor shall confirm it in writing without delay. If the public prosecutor does not agree with the instruction, he may ask for changing it or excluding him from the case. The PSA also declares that instructions relating to content of the process action issued by the superior prosecutor other than the direct superior prosecutor, may not refer to the way preparatory proceedings are concluded or to the proceedings before a court.
The public prosecutor is bound by legal opinions and recommendations expressed by the upper-level public prosecutor in decisions taken in course of an instance control.
It must be also noticed that public prosecutors are not allowed to have another functions or duties which would disturb them in performing their duties, would be contrary to their authority or would cause questioning their independence, they cannot be members of political parties or involved in political activities, prosecutors also have formal and to some extent material immunity from prosecutions (for all petty offences and insult of certain persons committed in course of dispensing his duties he is responsible only disciplinary – sect. 66 PSA);
As this above shown independence has certain limits it must be distinguished from independence of judges which is a much broader concept.
The public prosecutor is bound by legal opinions and recommendations expressed by the upper-level public prosecutor in decisions taken in course of an instance control.
It must be also noticed that public prosecutors are not allowed to have another functions or duties which would disturb them in performing their duties, would be contrary to their authority or would cause questioning their independence, they cannot be members of political parties or involved in political activities, prosecutors also have formal and to some extent material immunity from prosecutions (for all petty offences and insult of certain persons committed in course of dispensing his duties he is responsible only disciplinary – sect. 66 PSA);
As this above shown independence has certain limits it must be distinguished from independence of judges which is a much broader concept.
