Legal opinions and independency of the prosecutor

We live in a very complicated legal world. Complicated for lawyers as well as for all others who have for a long time no longer understood whether the law applies at all, and if so what. The letter of legal acts has ceased to count, subjective interpretations of regulations, separate sentences, positions of larger or smaller authorities, various and frequently ordered, under circumstantial thesis, legal opinions. Each other, most conflicting but authoritarianally emphasizing the only right view of their authors.

The average Pole present does not know how to read regulations, how to apply them, or even whether to apply them... It is not clear to him whether the court that judges him is simply a court or non-court, whether the judgement concerning him is simply a judgement or not, or whether the authority that orders him is legal or illegal...

Moreover, the typically legal discourse went to the media and social platforms and gained populist color, so as not to say frequently gutter, full of indecent words and behaviour. Unpretty first of all for justice.

Twenty years ago, I besides found in my private legal opinions, most frequently contradictory, due to the fact that the conflicted parties who wanted to prove their point, although they sometimes signed by the same author, sometimes unfortunately a specialist from a very different area of law than the 1 whose opinions were concerned. However, at the time, these opinions were only part of the file material that I analysed in the privacy of my cabinet, as was any another paper in these files. I myself examined and verified the correctness of the people who were preaching besides to either base on them erstwhile I felt it was right or to reject them erstwhile they did not actually convince me. And I had to justify my position anyway, whether it was in the bail order or in the indictment, not based on these opinions but on the law.

Today, he throws his legal opinions to my face in public, demanding that they be respected, due to the fact that the giving opinion is right, his right, the only right. And it is expected that I will face this argument publicly, preferably in the media, before the end of the proceedings, and preferably that I will admit to them the right and give in to the wisdom of the opinioner.

I will not tell you what was the content of the legal opinion that he submitted to me in the case file of Marshal Holovnia, refusing to appear at the hearing. I won't, due to the fact that it's a secret of investigation. I will not even comment on whether, without being a organization to the proceedings, he had the right to make specified a private opinion to the file. Let me just say this: I do not intend with this private opinion, nor with any another which I have many in my affairs, to do differently than before – in the privacy of my cabinet, to measure on the basis of the letter of law, whether they are convincing or not, whether they are an improvement in explanation of the rules or not, whether they justify the behaviour of the people who make them up or not. due to the fact that this is the task of the prosecutor: independently, autonomously, regardless of external pressures and in accordance with the rule of free assessment of evidence, measure the full evidence, and treat the legal opinion only as its element, not more crucial than others. There is no legal opinion in this country if the conduct it has permitted was not legal. And it is up to the prosecutor to measure the legality of these behaviours and the correctness of their legal opinions. To the prosecutor and to an independent court that will decide whether it is simply a complaint against the prosecutor's decision to discontinue the proceedings or to refuse to initiate it, or to conviction him in connection with his complaint to the court. Only the court has the right to verify whether the prosecutor’s assessment of the evidence collected, including all submitted to the legal file, was correct.

This verification should not be carried out by any head of the prosecutor. Of course, the prosecution is simply a hierarchical institution in which, in accordance with the applicable Law on the Prosecutor's Office, the Chief Prosecutor may issue a service order, including concerning the content of the legal act (including the direction and content of each procedural decision), but I am of the opinion that if the differences in the views of the prosecutor conducting the proceedings and of the prosecutor exercising the external auditor's office arise only from a different explanation of the rules they have made, from conflicting legal views, from conviction to different positions or from legal opinions, specified an order cannot be issued.

They say a good lawyer will prove all thesis. That's actual and that's where the conflicting legal opinions signed by the same legal authorities come from – this is paradoxically proof that they were produced by large lawyers. However, this fact alone indicates that there is no single legal truth, there is no 1 always right view, and so there is no reason for the superior’s position, his individual legal opinion, to be regarded as simply right. In particular, this reservation concerns the lawyer General, who, being a politician, as he has never been a prosecutor so far, and, as a rule, taking his position only for a fewer months, cannot require prosecutors conducting proceedings to profess his ‘only right’ views on how to interpret the existing rules.

I had the honour and pleasance to co-create the LSO's D.A.'s Law project, and I have the honor and the effort to co-create the Public Prosecutor's Law task in the Codification Commission of the Judiciary and Public Prosecutor's Office. Regardless of how different these 2 projects differ, this 1 thing has in common – they form the legal basis for the full independency of the referee's prosecutor without the ability to give him instructions on the content of legal acts, on decisions in his cases. It is to be a power, but above all, the individual work of the prosecutor for how he conducts the case, for how he will end it, for how he will defend it in court. No 1 should have the right to impose his opinion on this matter, in peculiar no 1 who does not know the act and who is guided solely by his own subjective explanation of rules and facts, or even by a temporary political cyclicality.

Such a solution brings us even closer to the judges, and well, it is the only right direction to build a just and liable justice system. I never understood, and I inactive don't realize why judges have the quality of independence, and prosecutors gotta servilely follow orders. We are precisely as educated, we have the same cognition and the same sense of work for our cases. We should be equally independent and be subject only to organization control, that is, judicial control.

I am presently working with a number of prosecutors who, in their professional lives, have received orders from their superiors to lead the case and how to end it, that they are expected to surrender it erstwhile they have seen the crime there, or on the contrary, that they are expected to direct the indictment erstwhile they have seen no evidence that they are expected to revoke the indictment or appeal, or on the contrary, that they are expected to bring the remedy. The arguments for the advice were different, unfortunately mostly not based on the collected evidence. any of these prosecutors gave in, any resisted. Both were broken. In the eyes of those who have surrendered, I see sadness, a sense of helplessness, a deficiency of trust, sometimes even fear. Their roots were cut, their assurance was taken, their decision-making autonomy was trampled. Paradoxically, sadness and a sense of helplessness can besides be seen in the eyes of those who persisted and refused to follow their instructions wrongly, which usually resulted in taking their case away. They are accompanied by grief, disbelief, frequently confusion, and enmity - filled stubbornness. They were cut off branches, branches that reached to heaven, which were to change the prosecutor's office for the better, bring it to a higher level, make it more effective and independent. They've got nothing to go up to, nothing to do. Both were taken from the passion of being a prosecutor. any stay and proceed their professional cart without this passion, any – usually the best ones in substance – leave the profession, with relief, taking distant further valuable human resources from our company, which hurts me personally.

The conclusion is for me 1 – giving a business order on the content of the legal act, imposing a substance of your opinion on the referent, is always profoundly devastating. I've never personally done it. I can discuss with prosecutors from my unit, I can disagree with them, I can show them mistakes, but I require them to take my comments into account only if my signature has, for procedural reasons, to appear under a given letter or motion, in another cases I usually accept their decision humbly, due to the fact that they are liable for it, they will defend it in court.

I'm not going to hide that it happened to me as a superior to the prosecutors that I didn't truly agree with, but I've always done it myself, and I've written these provisions myself, and I've always taken over these matters for my own conduct, and I've personally made the final decisions. Recently, I even overturned the plea order, although it cost me quite a few sleepless nights. However, I have assessed that the good of the individual to whom an incorrect substantive message of charges has been issued does not let the ad personam procedure to be dismissed, even without announcing it. Of course, I took the lead. However, I have never recommended to anyone that he conduct the case in a way different from his own imagination of conduct, that he end it the way I did and not the referee wanted. I do not think that I was or am a worse boss, on the contrary – I value this attitude in myself.

A fewer years ago, I wrote in an article to “Gazeta Wyborcza” that “the prosecution should be like Caesar’s wife—without blemish or suspicion.” This conviction became celebrated adequate that I was given a disciplinary procedure for this article, which continues to this day, and prosecutor Katarzyna Kwiatkowska quoted them in her presentation in the competition for the position of National Prosecutor. Although more than six years have passed since this article, I have not changed my conviction and I inactive hope (because hope dies last) that before the remainder of the day – despite the logs thrown at our feet – I will inactive see an independent prosecutorship full of independent prosecutors.

Finally, I would like to leave you with another quote, this time with a fellow prosecutor who designed the LSO calendar for 2026: “Independence is in the heart”. Let it be in the heart of all prosecutor, regardless of any and anyone's legal opinion. This is our individual legal opinion on the substance we are conducting and which we know best of all, to be the most important, let us be certain of it and let us not be afraid to defend it!

Margaret Szeroczyńska