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Analysis 21/2016: Yet another changes under the PiS rule that increase the power of the prosecutor over the court

Analysis 21/2016: Yet another changes under the PiS rule that increase the power of the prosecutor over the court


  • On November 4, 2016, The Sejm passed a law amending the Law on the Common Courts System  and certain other acts. This legal act contains another regulation  that increases the power of the prosecutor over the court.
  • It contains a provision amending Article. 5 of the Act of June 10, 2016 on the amendment of the Act - Criminal Procedure Code, the Medical Profession Act, the Act on Patients' Rights, and the Health Service Ombudsman. It envisages the prosecutor's right - throughout the proceedings before the court of first instance, and thus after the indictment has been sent to that court – to make a  request for the case to be returned to complete the investigation or inquiry.  In such a case, the court is to be bound by the prosecutor's position.
  • The Act of 4 November 2016, in its original wording,  contained another far more restrictive regulation. The submission of the same request by the prosecutor was also possible on the stage of the appeal proceedings, ie after the judgment of the first instance. Furthermore, the filing of such an application was to have an automatic effect requiring the court of appeal to set aside the judgment of the court of first instance.  The controversial regulation described above was, however, removed by amendment adopted by the Senate in its resolution of 15 November 2016. This has reduced the scope of negative changes, though not completely eliminated them. The Sejm accepted the position of the Senate at its meeting of 30 November 2016.
  • This regulation, as finally adopted, raises doubts from the perspective of a number of constitutional principles, in particular the rule of law (Article 175 para.1 of the Constitution of the Republic of Poland) and   the right to the court   (Article 45 para.1 of the Constitution of the Republic of Poland), in particular its part, the principle of equal treatment of the parties to the proceedings (the prosecutor and the accused). The Sejm's regulation also limits the right of the accused of having committed a crime to obtain an acquittal (definitive decision on criminal liability).
  • The above raises the risk of arbitrariness of the prosecutor's activities. There is a danger that requests to hand over a case to a prosecutor to complete the investigation or inquiry will not be motivated by merit, but  by the desire to avoid "losing" before the court. Changes also open the door to unreasonable opportunism (actual or procedural) , ie the will to step down from prosecution (support of indictment) despite the existence of legitimate grounds for prosecution.
  • What is important, the application of the regulation will cover all cases initiated before 5 August 2016, ie before the Act of 10 June 2016 entered into force.

Full analysis (in Polish) is aviliable here.

You are welcome to contact our expert:

Michał Magdziak, Lawyer
e-mail: [email protected]

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