Poland Is Purging Its Prosecutors

WARSAW—This month, Krzysztof Parchimowicz found himself in trouble—again. For the second time, the longtime Polish public prosecutor was hauled into disciplinary proceedings—he faced one set already and has three more outstanding—to answer charges of insubordination.

The hearing started late. Officials initially tried to keep members of the public from entering the court building in Warsaw and then tried to make some of them show IDs. Some refused. After a long delay, the officials relented and let people in. “I said that without the public, I would not consider this trial fully fair,” Parchimowicz said.

In recent years, Parchimowicz has made himself a thorn in the side of Poland’s right-wing government. In 2017, he helped set up Lex Super Omnia (“Law Above All” in Latin), an association of prosecutors that has pushed back on the politicization of Poland’s prosecutorial service under the ruling Law and Justice (PiS) party, which has made him the target of harassment by his new bosses. Before PiS came to power in 2015, Parchimowicz served as a public prosecutor at the highest level. He has since been demoted three rungs to a job he last held 30 years ago. “My youth was restored,” he joked.

Since 2015, PiS has waged a brazen campaign for control of Poland’s judicial system writ large. It packed the Constitutional Tribunal (which rules on the constitutionality of legislation) and the National Council of the Judiciary (which is supposed to guard judicial independence) with its own appointees and moved to do the same to the Supreme Court, lowering the mandatory retirement age for judges and subordinating those who were left to two new chambers, one of which is responsible for so-called judicial discipline. (Last year, the government reversed aspects of its Supreme Court purge following legal pressure from the European Union.)

The erosion of Polish judicial independence has elicited widespread concern from EU policymakers, as well as international human rights advocates and news outlets. The fight to control Poland’s 6,000 public prosecutors has received comparatively little attention, even though it’s been a key plank of the PiS agenda. In 2016, just months after PiS came to power, hundreds of high-level staff were ousted or demoted from prosecutors’ offices nationwide.

The same year, the roles of justice minister and prosecutor general—which had been separated in 2009—were merged in the person of Zbigniew Ziobro, a senior member of PiS. Laws passed at the same time handed Ziobro and his subordinates greatly expanded power to interfere with rank-and-file prosecutors, their decisions, and their freedoms of speech and association.

According to Parchimowicz, PiS has been even more heavy-handed with prosecutors than it has with judges. “There is stronger protection toward the rights of judges and their decisions,” he said. “In the case of the prosecutor’s office and prosecutors, the authorities have no inhibitions or scruples.”

Poland’s National Public Prosecutor’s Office did not respond to a request for comment. The Justice Ministry referred Foreign Policy to a 2019 report detailing general facts about the prosecutor system. It did not respond to a follow-up request for comment on specific points.

PiS has said its justice reforms are needed to root out corrupt officials and communist-era holdouts and to make the system more efficient. In some ways, the case for prosecutorial reform is easier to make than with judges. Prosecutors, the argument goes, are public servants, so bringing them under closer government supervision is good for democratic accountability. The same cannot be said of judges, whose independence is supposed to be rigidly guarded in democratic societies.

Parchimowicz and other prosecutors and observers told Foreign Policy that such arguments are deeply disingenuous: PiS, they say, is manipulating the building blocks of the justice system to punish rivals and protect itself. For example, the government is currently seeking criminal proceedings against Jozef Gacek, a prosecutor who, PiS claims, failed to go far enough in investigating the 2010 Smolensk airliner crash. Polish President Lech Kaczynski, the brother of PiS power broker Jaroslaw Kaczynski, was killed in the crash, conspiracy theories about which have since become a rallying point for Poland’s far-right.

The prosecutorial service was not perfectly independent before PiS took power, but it was never politicized “with such force, with such power, and on such a scale,” Parchimowicz said. “There have always been staff changes on the occasion of changes in power, there have always been some expectations toward the prosecutor’s office in matters of political context, but now the prosecutor’s office is simply a tool in the hands of the authorities.”

Even if PiS fails to retain power, its attacks on the justice system will be hard to reverse.

Poland is set to hold parliamentary elections on Oct. 13. PiS is comfortably ahead in the polls. Even if the unexpected happens and the party fails to retain power, its attacks on the justice system will be hard to reverse, according to Stanley Bill, a senior lecturer at the University of Cambridge. Countering the wholesale structural and personnel changes PiS has implemented would itself require the same illegitimate, politicized solutions, Bill said.

Still, for the prosecutors fighting to reestablish their independence, a clear PiS victory would be worse. Parchimowicz, for one, fears such an outcome. “If those who currently rule remain in power, the prosecutor’s office will be demoralized,” he said. “The prosecutor’s office is rotting morally.”

According to Lex Super Omnia, the prosecutors’ association led by Parchimowicz, after PiS won the last elections in 2015, roughly 200 prosecutors took early retirement to avoid the impending purge of the service. Their fears were not misplaced. According to a recent report by Amnesty International, in 2016 the prosecutor general ripped through Poland’s prosecutorial hierarchy, replacing all 11 leaders of regional prosecution offices, all bar one of the 45 leaders of county prosecution offices, and the vast majority of the 342 prosecutors leading district offices. By the end of 2016, as many as 500 prosecutors had been affected.

Some prosecutors, meanwhile, have found themselves transferred to work in cities far away from their previous postings, often receiving such assignments without the right to weigh in or appeal. Prosecutors who spoke with Foreign Policy said bosses typically give no formal reason for these displacements but that they are effectively wielded as punishments.

After speaking out about politicization of the judiciary, Mariusz Krason, who was responsible for large organized crimes cases in Krakow, was demoted and sent 150 miles away.

After speaking out about the politicization of the service at a meeting of prosecutors last year, Mariusz Krason, who was responsible for large organized crimes cases in Krakow, was transferred to a position with a much smaller profile in Wroclaw, a city 150 miles away. Krason’s parents, both in their 70s, are severely sick and need care. Currently, given the confines of his placement, Krason is able to travel back to Krakow only on weekends. A round trip takes about seven hours on the train.

The government, Krason said, thinks it can move prosecutors around at will. “They think prosecutors are soldiers,” he said.

Compared with other countries (including the United States), Poland’s justice system operates on a less rigid system of geographical jurisdiction—cases related to one part of Poland are commonly assigned to prosecutors elsewhere. Barbora Cernusakova, a researcher with Amnesty, said this type of setup can be beneficial in combating corruption: “Sometimes it’s done for independence purposes so [prosecutors] wouldn’t actually know the individuals involved” in a local case. PiS, however, has exploited the provision for its own ends. The case assignment system means that “they don’t even need to have 100 percent control of either courts or prosecutors,” Cernusakova said. “They can allocate it to the ones that they know are not going to be difficult.”

PiS is pulling on other levers, too. Top prosecutors have promoted lower-level colleagues under a secondment system—effectively, this amounts to a temporary pay raise. According to Jacek Bilewicz, a senior 25-year veteran of the prosecution service, this is one of a number of financial rewards bosses are wielding. “Before 2016, there were no extra financial rewards for prosecutors,” he said. Now “there is a carrot and a stick. Previously, there was only stick.”

Bilewicz reckons that about a third of Poland’s 6,000 public prosecutors are relatively happy with their lot under PiS. Lex Super Omnia, on whose board Bilewicz serves, has more than 200 members who are active in opposing what PiS is doing. Most of the rest are unhappy but unwilling to speak up, Bilewicz said. “They are afraid that they could be treated like Prosecutor Krason.”

In early October, at his disciplinary hearing in Warsaw, Parchimowicz argued that contrary to his superiors’ claims, he hadn’t been slacking at work. Rather, he said, he and his colleagues in the Warsaw Mokotow district prosecutors’ office were overworked. He offered evidence. The disciplinary court rejected it but ruled that he was telling the truth and cleared him of wrongdoing.

Nonetheless, his victory was hollow. Parchimowicz is sure that his bosses will appeal the verdict. Even if they don’t, he still faces three more procedures, all of which relate to his strident criticisms of the prosecutorial service, both personally and in his capacity as the head of Lex Super Omnia.

The specter of criminal proceedings also hangs over Parchimowicz. In 2009, after the Supreme Court issued a pair of rulings on the classification and prosecution of tax crimes, Parchimowicz, then a senior national-level prosecutor, issued fresh guidance to his subordinates. PiS is now claiming that in communicating those rulings to his staff, Parchimowicz was working to the benefit of criminals. The government has implicated him as a suspect, and he could face a 10-year prison sentence.

In a break with normal protocol, Ziobro, the justice minister and prosecutor general, and a senior deputy informed the media that they would be going after Parchimowicz over the old tax rulings. “Since then, the right-wing press has referred to me as the ‘best friend of the tax mafia,’” Parchimowicz said. “I am now going to take steps against both prosecutors for violating my personal rights. For violating my good name, my dignity.”

At the very least, Parchimowicz is certain that he will lose his job. “I am at peace with the idea that I will be fired from work, in one or another disciplinary proceeding,” he said. But the implications, in his view, extend beyond the career of any individual prosecutor. “All that PiS is doing wrong in the area of rule of law, in terms of the rule of law, takes us back to communist Poland,” he said.

The only supranational body with any teeth is the European Union—and it refused to take up a complaint related to Poland’s prosecutors.

Organizations such as Lex Super Omnia are working to prevent that outcome. So are overseas organizations. In June, Dunja Mijatovic, the Council of Europe’s human rights commissioner, criticized the purge of Poland’s prosecutors and demanded that the roles of justice minister and prosecutor general be separated to buttress prosecutorial independence.

The only supranational body with any teeth in this area, however, is the European Union—and it refused to take up a complaint related to Poland’s prosecutors, Krason said, arguing that it should be handled domestically. EU institutions have opened a number of investigations related to the justice system more broadly, but so far, the bloc’s leaders have yet to levy sanctions for Poland’s blatant violations of EU rules.

“It cannot be expected that the European Union will solve our Polish problems for us,” Parchimowicz told Foreign Policy after his hearing earlier this month, 10 days ahead of Poland’s elections. “We must mature and fight for our freedoms and lasting democracy in our country. We Poles are like that: We demand from others, not from ourselves.”