This post contains an excerpt from the report “A year of devastation of the rule of law”, published by the Ordo Iuris Institute on December 13, 2024. The full report can be found at https://en.ordoiuris.pl/civil-liberties/year-of-devastation-of-rule-of-law-in-poland
Main theses:
Donald Tusk’s government decided to take over the prosecutor’s office bypassing the provisions of the current Law on the Public Prosecutor’s Office.
The government ignored the procedure required for the dismissal of the National Prosecutor in the person of Dariusz Barski, for which the written consent of the President of the Republic of Poland was necessary for effective execution.
In place of the National Prosecutor, the institution of an “acting national prosecutor,” unknown to the law, was established, giving the position to Jacek Bilewicz.
In the end, Prime Minister Donald Tusk appointed Dariusz Korneluk as National Prosecutor, without obtaining the opinion of the President of the Republic of Poland, as required by law.
1. Introduction
The background of the events surrounding the takeover of the National Prosecutor’s Office by representatives of the current ruling team in January 2024 are essentially two issues: the debate that has been going on since the political transition (the fall of communism) regarding the model of the public prosecution system, and the actions of the Civic Coalition (KO) – Third Way (PSL – Poland 2050) – Left coalition government after the change of power in December 2023.
The first of these, the dispute over the shape and position of the prosecutor’s office, centers around the application of two different concepts of its functioning. This state of affairs is due, among other things, to the lack of empowerment of the prosecuting authorities in the provisions of the 1997 Constitution of the Republic of Poland[1]. As a result, the issues of normalizing the rules of operation and functioning of this institution were left within the scope of statutory matters (ordinary legislation), making it susceptible to frequent changes[2].
In Europe, two models of prosecutorial system can be distinguished. In the former, the prosecutor’s office is independent of the parliament and the government; in the latter, it is subordinate to either of these authorities, but enjoys a certain degree of independence in its actions[3]. In particular, a manifestation of the latter model is the merger of the offices of Minister of Justice and Prosecutor General so that the holder of the former office holds the latter position ex officio.
In the Polish legal system, the second model, according to which the positions of Minister of Justice and Prosecutor General are intertwined, has been in place for most of the time. The change was decided only in 2009, when, declaring a desire to increase the independence of the prosecutor’s office, the then authorities reformed the rules of this institution (the function of the prosecutor general and the minister of justice was separated)[4].
However, the prosecutor’s office is now operating under new legislation from 2016, when the then-conservative government passed a new law on the public prosecutor’s office[5], strengthening the position of the Prosecutor General and reconnecting this function with that of the Minister of Justice. In addition, the National Prosecutor has returned to the structure of the prosecutor’s office. Influence on the filling of this position was obtained by the President of the Republic. Indeed, the National Prosecutor, as well as his deputies, are appointed by the Prime Minister on the proposal of the Prosecutor General, after obtaining the opinion of the President of the Republic. In turn, the dismissal of these bodies no longer requires just an opinion, but the consent of the President. The 2023 amendment[6] clarified that this consent must be granted in writing[7]. This factor was intended to move in the direction of reducing political influence on the prosecutor’s office by requiring consensus between the two state bodies.
At the same time, with the same amendment, the powers of the Minister of Justice (Prosecutor General) were significantly curtailed, granting de facto powers to direct the activities of the prosecutor’s office and conduct personnel policy within this framework to the National Prosecutor. In addition, the National Prosecutor was given the authority to undertake covert actions by, among others, the Police, the Internal Security Agency (ABW), the Central Anti-Corruption Bureau (CBA), the Border Guard or the Military Police.
The effect of the aforementioned changes, therefore, was to significantly strengthen the position of the National Prosecutor, whom the Prime Minister (acting at the request of the Prosecutor General) cannot dismiss without the written consent of the President of the Republic.
2. New government illegally seizes control of prosecutor’s office
In the prevailing legal and factual state of affairs, the new government, with Donald Tusk as Prime Minister and Adam Bodnar as Minister of Justice and Prosecutor General, did not have the capacity to direct the prosecutor’s activities on its own. Indeed, gaining significant influence over its operation would require the appointment of a new National Prosecutor.
As already mentioned, the change of the tenure of this position should be initiated by a motion of the Minister of Justice – Prosecutor General, and carried out by the Prime Minister with the written consent of the President of the Republic of Poland. In practice, the appointment of a new National Prosecutor by the current ruling coalition could prove problematic because the position was filled by the previous conservative government, while Andrzej Duda became President with the votes of the conservative part of society.
A second eventuality, theoretically enabling political influence over the prosecutor’s office, would be to amend the provisions of the Law on the Public Prosecutor’s Office as to the rules for the appointment and dismissal of the National Prosecutor. In such a case, however, the government coalition would have to reckon with a presidential veto, for which it does not have a sufficient majority (qualified majority of 3/5 votes in the presence of at least half of the statutory number of deputies). As a result, the Prime Minister and the Minister of Justice decided to use extra-legal solutions aimed at taking actual control of the office of the National Prosecutor.
On January 12, 2024, the Minister of Justice – Prosecutor General Adam Bodnar, without indicating the legal basis for his action, handed National Prosecutor Dariusz Barski a document stating that his reinstatement to active duty, on February 16, 2022, by the previous Prosecutor General Zbigniew Ziobro, was carried out in violation of the current legislation and had no legal effect. This is because Barski’s reinstatement was carried out on the basis of Article 47 of the Law of January 26, 2016. Introductory provisions of the Law on the Public Prosecutor’s Office[8] (hereinafter: PWPoP), which, according to the Minister of Justice, was no longer in effect at the time[9]. At the same time, on the same day, Prime Minister Donald Tusk entrusted the duties of First Deputy Prosecutor General of the National Prosecutor’s Office to prosecutor of the National Prosecutor’s Office, Jacek Bilewicz[10] (despite the fact that the Law on the Public Prosecutor’s Office does not recognize the institution of “entrusting the duties” of the National Prosecutor to any other prosecutor).
At this point, it is important to note the reasoning of the Minister of Justice – Prosecutor General, Adam Bodnar, who stated that the reinstatement of prosecutor Dariusz Barski had no legal effect. Consequently, it would have to be concluded that Dariusz Barski did not become the National Prosecutor in 2022. This, in turn, would lead to the conclusion that all actions taken by Dariusz Barski as National Prosecutor (which he should not have become) are ineffective. One such action must have been the request for the appointment of prosecutor Jacek Bilewicz to the National Prosecutor’s Office. Indeed, according to Article 74 § 1 of the Law – Law on the Public Prosecutor’s Office, prosecutors of common organizational units of the public prosecutor’s office (as is clear from Article 16, one such unit is the National Public Prosecutor’s Office) are appointed to a prosecutorial position by the Prosecutor General on the proposal of the National Prosecutor. Jacek Bilewicz was appointed as a prosecutor of the National Prosecutor’s Office by the Prosecutor General on January 12, 2024.[11], i.e. on the same day that the same Prosecutor General stated that Dariusz Barski (whose application was necessary for the appointment of Jacek Bilewicz) was not a National Prosecutor, as he had not been effectively reinstated to active duty on February 16, 2022. Consequently, recognizing the argumentation presented by the Minister of Justice – Prosecutor General Adam Bodnar as accurate, would imply that the appointment of prosecutor Jacek Bilewicz to the National Prosecutor’s Office was ineffective, since it was carried out without the legally required motion of the National Prosecutor.
Another contradiction in Adam Bodnar’s position handed to Dariusz Barski, which is worth noting, is the statement that Dariusz Barski is not a prosecutor on active duty as of January 12, 2024, making him “ineligible to be a National Prosecutor, which means that as of January 12, 2024, he does not hold this position.” Meanwhile, since the reinstatement of Dariusz Barski by the previous Prosecutor General – Zbigniew Ziobra on February 16, 2022 was “ineffective,” the question arises – on what basis would Dariusz Barski, until January 12, 2024, be a prosecutor on active duty and serve as National Prosecutor?
In addition to their quasi-formal actions, representatives of Donald Tusk’s government also took steps to actually take control of the Prosecutor’s Office. On January 24, 2024, the Minister of Justice – Prosecutor General Adam Bodnar and the “acting” National Prosecutor Jacek Bilewicz, assisted by Prison Service officers, entered the headquarters of the National Prosecutor’s Office and occupied the office of then absent prosecutor Dariusz Barski[12]. During the action of the uniformed law enforcement agencies, Minister Bodnar allegedly ordered Barski’s belongings to be packed up, which, however, was not ultimately done. The actions of the current ruling team have been strongly criticized by opposition politicians, who have described them as a “creeping coup”[13].
It is impossible to ignore the consequences of the unlawful actions of the current ruling team on the daily functioning of the judiciary and citizens seeking justice before the courts. This is because the position presented by the Minister of Justice creates the possibility of undermining the status of other prosecutors, too, who were appointed at the request of Dariusz Barski, or who were restored to active duty under Article 47 of the PWPoP (after the expiration of 60 days from the date of promulgation of this law). Challenging the effectiveness of the appointment of a prosecutor signed to the indictment filed with a court may even result in the discontinuation of criminal proceedings due to the lack of a complaint from a legitimate accuser[14]. All of this leads to unimaginable chaos in the administration of justice, undermines the confidence of citizens in the organs of the state, and undermines the constitutional right of everyone to a fair and public hearing without undue delay by a competent, independent, impartial and independent court of law[15].
In this context, it should also be noted that there have been media reports of “punitive” postings of prosecutors from regional prosecutors’ offices to district prosecutors’ offices (two levels below)[16]. The Commissioner for Human Rights, Prof. Marcin Wiącek[17], pointed out that the sudden removal of a prosecutor from an assignment could lead to a violation of his right to respect for private and family life (Article 47 of the Constitution, Article 8 of the ECHR), such as by requiring an immediate move, which could involve, for example, a change in the school his children attend. Such removal may also adversely affect the efficiency and thoroughness of the investigations conducted and supervised by the transferred prosecutor.
3. Untrue claims by government representatives
At the heart of the current ruling team’s actions in the prosecutor’s office is the claim that prosecutor Dariusz Barski was not reinstated from retirement, and thus was not effectively appointed to the position of National Prosecutor – First Deputy Prosecutor General. In 2007, he served as Deputy Prosecutor General to Justice Minister Zbigniew Ziobro and as National Prosecutor. In 2010, after the liquidation of the National Prosecutor’s Office carried out under the PO-PSL coalition, prosecutor Dariusz Barski retired. This was due to the amendment of the Law on the Public Prosecutor’s Office by the Law of October 9, 2009 amending the Law on the Public Prosecutor’s Office and certain other laws[18]. Article 19 (1-5) of that amendment provided that the Prosecutor General may transfer prosecutors of the former National Prosecutor’s Office (in connection with the reorganization) who were not appointed to the General Prosecutor’s Office to other official positions in the appellate or regional prosecutor’s office, with retention of the right to the salary received in the position previously held. According to Article 19(3), a prosecutor of the former National Prosecutor’s Office could file an objection to such a decision with the Prosecutor General, which meant retiring within a month of filing the objection. Prosecutor Dariusz Barski took advantage of this privilege.
The arguments of the government representatives essentially boiled down to the claim that the provision under which prosecutor Dariusz Barski was reinstated in 2022 was episodic in nature, limited in time in terms of its applicability to two months from its entry into force, i.e. from March 4, 2016 to May 4, 2016. Meanwhile, the Prosecutor General reinstated prosecutor Dariusz Barski to active service nearly six years after the entry into force of the said provision, which results (in the opinion of the Ministry of Justice) in the ineffectiveness of the decision taken[19].
The above position, according to which Article 47 of the PWPoP was episodic, can hardly be considered correct. This is because the provision had no specific time limit, which is typical of this type of norms[20]. A linguistic interpretation here leads to the unequivocal conclusion that Article 47 of the PWPoP was in effect on the date of Dariusz Barski’s reinstatement to active service in the prosecutor’s office and is still in effect, as it has not been repealed or found to be unconstitutional.
A departure from the application of linguistic interpretation can be made only in exceptional situations, which did not occur in the case at hand. Moreover, the adoption of the position presented by the Minister of Justice would lead to a violation of the principle of protection of vested rights with respect to prosecutors who have acquired a specific subjective right by law, as well as the principle of citizens’ trust in the state and the law created by it, which stems from Article 2 of the Polish Constitution.
It is impossible not to mention that the handing of a letter by Prosecutor General Adam Bodnar to Dariusz Barski, who was holding the position of National Prosecutor, stating that henceforth he is no longer the National Prosecutor, without any legal basis for such action, blatantly violates Article 7 of the Polish Constitution, according to which public authorities act on the basis and within the limits of the law.
The above was confirmed by the Supreme Court in a resolution dated September 27, 2024[21], ruling that the provisions serving as the basis for the reinstatement of prosecutor Dariusz Barski to service in the prosecutor’s office and his appointment as National Prosecutor were not episodic in nature and did not contain a temporal limitation on their validity, and therefore the appointment of Dariusz Barski to the position of National Prosecutor was a legally effective appointment.
4. Summary
The actions of the current ruling coalition described above and the cited legal acts indicate that the new ruling camp has decided to take over the prosecutor’s office in disregard of the provisions of the current law – the Law on the Public Prosecutor’s Office. These changes had a political dimension, as they were intended to lead to the removal from the office of National Prosecutor of the person appointed to this position in the previous term of the Sejm, and to the assumption of this position by a person designated by the current governing coalition.
Donald Tusk’s government ignored the procedure required for the dismissal of the National Prosecutor in the person of Dariusz Barski, for which the written consent of the President of the Republic of Poland was necessary for effective execution. In place of the National Prosecutor, the institution of an “acting national prosecutor,” unknown to the law, was established, giving the position to Jacek Bilewicz. In the end, Prime Minister Donald Tusk appointed Dariusz Korneluk as National Prosecutor, without obtaining the opinion of the President of the Republic of Poland, as required by law.
Patryk Ignaszczak, Marek Puzio
[1] Constitution of the Republic of Poland of April 2, 1997 (OJ 1997, No. 78, item 483, as amended).
[2] The 1997 Constitution of the Republic of Poland does not generally refer to the constitutional position of the prosecutor’s office, mentioning only in Article 191(1)(1) the competence of the Prosecutor General to submit applications to the Constitutional Tribunal.
[3] H. Suchocka, W poszukiwaniu modelu ustrojowego prokuratury (w świetle prac Komisji Rady Europy “Demokracja poprzez prawo”), “RUCH PRAWNICZY, EKONOMICZNY AND SOCJOLOGICZNY”, 2014, p. 160.
[4] See the Law of October 9, 2009 amending the Law on the Public Prosecutor’s Office and certain other laws (OJ 2009, No. 178, item 1375).
[5] Law of January 28, 2016. Law on the Public Prosecutor’s Office (OJ 2016, item 177, hereinafter referred to as the: “Law on the Public Prosecutor’s Office”).
[6] See the Law of July 7, 2023 on Amendments to the Law – Code of Civil Procedure, to the Law – Law on the System of Common Courts, to the Law – Code of Criminal Procedure, and to Some Other Laws (OJ U. of 2023, item 1860).
[7] See Article 14 § 1 of the Law on the Public Prosecutor’s Office.
[8] OJ 2016, item 178.
[9] Information on the recognition of the reinstatement of prosecutor Dariusz Barski to active duty as an act done in violation of the regulations, https://www.gov.pl/web/sprawiedliwosc/informacja-o-uznaniu-przywrocenia-prokuratora-dariusza-barskiego-do-sluzby-czynnej-za-akt-dokonany-z-naruszeniem-przepisow, accessed: October 31, 2024.
[10] Prosecutor of the National Prosecutor’s Office Jacek Bilewicz Acting National Prosecutor, https://www.gov.pl/web/sprawiedliwosc/prokurator-prokuratury-krajowej-jacek-bilewicz-pelniacym-obowiazki-prokuratora-krajowego, accessed: October 31, 2024.
[11] See National Prosecutor’s Office, Position of the Deputy Prosecutors General on the attempt to illegally deprive the National Prosecutor of his position and to fill this position in a manner unknown to the law, https://www.gov.pl/web/prokuratura-krajowa/stanowisko-zastepcow-prokuratora-generalnego-dotyczace-proby-bezprawnego-pozbawienia-funkcji-prokuratora-krajowego-i-obsadzenia-tej-funkcji-w-trybie-nieznanym-ustawie, accessed: December 06, 2024.
[12] M. Sławiński, Pilna konferencja Kaczyńskiego i Błaszczaka. An attempted forceful takeover of the National Prosecutor’s Office is underway, https://www.polsatnews.pl/wiadomosc/2024-01-24/trwa-proba-silowego-przejecia-prokuratury-krajowej-pilna-konferencja-pis/, accessed: October 31, 2024.
[13] M. Zaborowska, Law and Justice party speaks of “forceful takeover of the National Prosecutor’s Office.” Justice Ministry denies it, https://www.rmf24.pl/polityka/news-pis-mowi-o-silowym-przejeciu-prokuratury-krajowej-resort-spr,nId,7289490#crp_state=1, accessed: October 31, 2024.
[14] See Decision of the Regional Court in Szczecin of February 9, 2024, ref. III K 348/22 (decision later reversed by decision of the Court of Appeals in Szczecin of April 10, 2024, II AKz 106/24).
[15] See Article 45 of the Polish Constitution.
[16] Delegacje – zemsta na niewygodnych prokuratorach? – Obserwator Praworządności, accessed: November 06, 2024.
[17] Biuletyn Informacji Publicznej RPO, The case of prosecutors recalled from delegations. Clarification issued by the Minister of Justice and Procurator General], https://bip.brpo.gov.pl/pl/content/rpo-prokuratorzy-delegacje-odwolania-ms-odpowiedz, accessed: November 06, 2024.
[18] OJ No. 178, item 1375.
[19] Legal opinions on the change in the position of National Prosecutor, https://www.gov.pl/web/sprawiedliwosc/opinie-prawne-dot-zmiany-na-stanowisku-prokuratora-krajowego, accessed: November 06, 2024.
[20] See. § 29a of the decree of the Prime Minister of June 20, 2002 on “Principles of Legislative Techniques” (OJ U. of 2016, item 283).
[21] Supreme Court resolution of September 27, 2024, I KZP 3/24.
