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"Wyborcza" recently revealed a shocking case of withdrawal of an indictment by the District Prosecutor's Office in Gdynia against Zbigniew K., a former Law and Justice MP, and his business partners. The case concerned extortion of 2 million PLN from EU funds under a loan from the Polish Agency for Enterprise Development.

According to the prosecutor's office, in order to obtain the loan, the men misled the Agency by informing it that their company had PLN 1 million of its own contribution that was a necessary condition to greenlight the investment. Before the release of each subsequent tranche of the loan, they submitted false - according to the investigators - contracts and invoices. In the end, they did not repay the debt.

First the indictment was withdrawn, and then the withdrawal was withdrawn

Our journalistic investigation verified that the indictment in this case was withdrawn from the court. This step was not taken by the prosecutor who originally brought the indictment, but by her superior, the head of the district prosecutor's office in Gdynia, Anna Piórkowska. Piórkowska used an exceptional procedure that resulted in a definitive closing of the investigation by the Prosecutor’s Office, which meant that it would not be possible to bring any future charges related to the case against those involved in the original indictment.

After we published several articles on the matter, the Regional Prosecution Office in Gdańsk distanced itself from the decision of the district prosecution, considering it a mistake. It ordered the district prosecutor's office to withdraw its withdrawal and to ask instead to have the case returned to it so that it can fill in the evidential gaps. Whether the case returns to the prosecutor's office and whether the former Law and Justice MP faces an indictment will become clear in May, when the prosecution's motions are to be considered by the court. Time will also show whether the Regional Prosecution Office actually wants to strengthen the case through more evidence or rather to play the delay game in order to bury the controversy. 

This raises an important question. Was the withdrawal of the indictment against Zbigniew K., the former MP of the Law and Justice party, an autonomous call made by the head of the Gdynia district office and did she resort to using the special procedure of definite withdrawal of the indictment  out of her own overzealousness? I sincerely doubt it. 

Since 2016, in Poland, the Prosecutor’s Office has been under direct political influence. The post of Prosecutor General is held by the Minister of Justice himself, Zbigniew Ziobro. He has unlimited influence over the fate of every investigation and the career of every prosecutor. The principle of prosecutorial independence, guaranteed by the Polish law, is pure fiction. The prosecutor's office is a hierarchical and politicized institution, acting like an army, under orders. Formalized written commands are avoided in sensitive cases so as not to leave traces of political pressure.

As prosecutors from the Lex Super Omnia association point out, the current legal regime concerning the prosecutor's office is characterized by:

- no rules related to the assignment of a case to a particular prosecutor (cases can be taken away from prosecutors and handed over to others, investigations can be moved around the country in search for prosecutors who will make the expected decision);

- an elaborate system of supervision (on the model of the Soviet prosecutor's office), under which superiors, as well as supervisors, can have unlimited access to the investigation files. They should also be "consulted" on draft final decisions in sensitive cases (informal approval);

- a system of rewards (promotions, delegations to a higher instance, cash rewards) for prosecutors who make trial decisions in accordance with the expectations of the leadership and punishments for those who act differently (demotions, delegations to locations far from where they live, initiation of disciplinary and criminal proceedings in connection with substantially correct but inconvenient decisions for those in power).

All this causes me to have little faith that the head of the Gdynia district simply made an error of judgment.

However, the matter has a broader context. The example of Gdynia shows that the prosecutor's office, which is directly controlled and completely subordinated to a politician from the ruling party, is not able to effectively prosecute and issue charges in cases of suspected embezzlement of EU funds when those at fault are connected to the Law and Justice party.

This is an important conclusion in the context of how Poland could distribute and disburse money from the EU’s Reconstruction Fund. In case of irregularities, the Polish prosecution will not be up to the task. It will pursue the interests of the party, not the state. 

Who could do it better? EU’s own prosecutors.

Would the European Prosecutor's Office withdraw the indictment?

In 2017, an EU legislation was passed that enabled the creation of the European Public Prosecutor's Office, an independent EU body to combat crimes against the EU's financial interests. Beginning in 2021, European prosecutors actually started prosecuting frauds hitting the EU budget and the Reconstruction Fund. However, Poland - alongside Hungary and four other EU member states - does not recognize the authority of the European Public Prosecutor's Office and did not join the EU’s enhanced cooperation procedure that was used to establish the judicial body. 

According to politicians from the ruling party, official recognition of the Office’s legal prerogatives would conflict with the sovereignty of the Polish state. At the same time, it is fair to wonder whether the actual concern of the Law and Justice government has more to do with protecting particular interests of its party members and their business dealings rather than with the lofty principle of sovereignty. 

Let us take the case of the former Law and Justice MP Zbigniew K. and the accusations concerning his potential embezzlement of 2 million PLN from the EU funds If Poland belonged to the European Public Prosecutor's Office, the proceedings could be taken over by the EU prosecutors, who would be independent from the influence of Polish authorities and politicians, including from the heads of Polish prosecution office. This would leave the ruling camp with very little leeway when it comes to shaping the course of investigation. 

Could the EU investigators be counted upon to withdraw their indictment? It appears that the Polish government is too afraid to find out.

***

Every day, 400 journalists at Gazeta Wyborcza write verified, fact-checked stories about Polish politics and society, keeping a critical eye on the ruling camp’s persistent assault on democratic values and the rule of law; the growing cultural tension between religious fundamentalism and human rights; and the ongoing COVID-19 epidemic. Our journalists are on the front lines in 25 Polish cities, reporting from the streets, hospitals, and courtrooms about issues that move public opinion.

We decided to make our service available to everyone free of charge in order to provide access to high quality journalism for expats and English speakers interested in Polish affairs.

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