The echoes of the unlawful attempt to dismiss Przemysław Radzik, a judge of the Court of Appeal in Warsaw, from the position of Deputy Disciplinary Prosecutor for Judges of Courts of General Jurisdiction by Minister of Justice Adam Bodnar have not yet faded away when, on 25 April, a statement was published on the Ministry’s website announcing another attempt to dismiss — this time concerning Judge Piotr Schab from his position as Disciplinary Prosecutor for Judges of Courts of General Jurisdiction.
In this announcement, as in the previous one, the Ministry once again admitted that the Law on the System of Common Courts does not confer upon the Minister of Justice the authority to dismiss either the Disciplinary Prosecutor for Judges of Courts of General Jurisdiction or his deputies. (Article 112 § 3 of the Act provides only that the Disciplinary Prosecutor for Judges of Courts of General Jurisdiction and two Deputy Disciplinary Prosecutors shall be appointed by the Minister of Justice for a four-year term, remaining silent on dismissal.) Presuming the existence of such competence is, of course, contrary to the principle of legality enshrined in Article 7 of the Constitution, which provides: Public authorities shall act on the basis of and within the limits of the law.
How, then, does the Ministry attempt to address this problem? This time, it invokes a so-called “pro-constitutional interpretation,” arguing that the power to appoint necessarily entails the power to dismiss.
However, this argument is clearly untenable. An action that contravenes one of the fundamental principles of the Constitution — namely, the principle aimed at guaranteeing the separation of powers and preventing the executive branch from arrogating powers belonging to other branches — is manifestly anti-constitutional, not pro-constitutional.
Such interpretations have already been rejected long ago by the Constitutional Tribunal, which in case W 7/94 explicitly held that a provision granting the authority to appoint a member of a body cannot be construed as simultaneously granting the authority to dismiss.
That case — once highly publicized and politically charged (it concerned President Lech Wałęsa, who, after the National Broadcasting Council rendered its first-ever decision on a terrestrial television broadcasting licence contrary to the president’s wishes, sought to dismiss some Council members on the ground that he had appointed them and therefore could dismiss them) — resulted in the Tribunal issuing a clear interpretation of the principle of legality:
In the opinion of the Constitutional Tribunal, the constitutional principle of legality and the principle of a democratic state governed by the rule of law lead to the unequivocal conclusion that, where legal norms do not expressly provide for the competence of a state authority, such competence cannot be presumed. Moreover, a legislator’s unexpressed intention cannot be inferred from the existence of other types of competences.
The Tribunal further stated:
The Constitutional Tribunal does not share the view that the appointing authority may freely, i.e., without a legal basis, dismiss an appointee on the grounds of ‘its responsibility for the manner in which the appointed body performs its functions.’
The conclusions drawn in that case are highly pertinent to Minister Bodnar’s current actions.
Concerns about the legality of these actions are being raised from many quarters. For example, Dr Marcin Szwed, associated with the Helsinki Foundation for Human Rights, who also found no legal basis for the Minister’s dismissal of disciplinary officers, requested that the Minister provide an official document evidencing the dismissal decision. Upon receiving it, it was revealed that the decision contained no justification.
Minister Bodnar’s actions, as with his previous ones, may give rise to liability before the State Tribunal for violation of the Constitution, as Dr. Bartosz Lewandowski has correctly pointed out.
Moreover, the National Council of the Judiciary has reported to the public prosecutor’s office the possibility that Minister Bodnar committed the offence of exceeding his powers, pursuant to Article 231 § 1 of the Criminal Code (A public official who, by exceeding his powers or failing to fulfil his duties, acts to the detriment of the public or private interest, shall be subject to imprisonment for up to three years).
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