The Ministry of Justice has announced that the President of the Council of Ministers, Donald Tusk, has appointed Prosecutor Dariusz Korneluk to the position of the National Prosecutor. Independently of the fact that the position is still occupied by prosecutor Dariusz Barski, it should be emphasized that, under the current Polish law, the appointment of the National Prosecutor cannot be effectively performed without the opinion of the President of Poland. The law is clear in this respect. According to Article 14(1) of the Act of 28.01.2016. Law on the Public Prosecutor’s Office:
“The National Prosecutor, as the first deputy of the Prosecutor General, and the other deputies of the Prosecutor General shall be appointed in the number not exceeding 7, from among the prosecutors of the National Prosecutor’s Office, and dismissed from these functions by the President of the Council of Ministers at the request of the Prosecutor General. The National Prosecutor and the other deputies of the Prosecutor General shall be appointed AFTER having obtained the OPINION of the President of the Republic of Poland, and dismissed upon his written consent”.
Moreover, in the opinion of specialists and experts in the Law of 28.01.2016. – Law on the Public Prosecutor’s Office, the opinion of the President of the Republic of Poland MUST be positive in order for the President of the Council of Ministers to appoint the National Prosecutor. Naturally, this refers to a situation when the position is already vacated, which did not happen in this case.
This view is contained, for example, in the following publications: “Law on public prosecution. Commentary”, 2nd edition, Warsaw 2021 by prosecutor dr Andrzej Kiełtyk – Deputy Appellate Prosecutor in Rzeszów during the term of office of Prosecutor General Andrzej Seremet, in publications of a well-known expert Wojciech Kotowski – secretary of the editorial board of the monthly publication Prosecutor’s Office and Law and author of over 100 publications (including commentaries), as well as attorney Prof. Andrzej Ważny – member of the Scientific Council of the monthly Appellate Courts Jurisprudence and the quarterly Enterprise and Law.
In summary, under the Polish law, the President of the Republic of Poland plays an active role in the appointment of the National Prosecutor and the deputies of the Prosecutor General. For the appointment to be effective, not only is the Presidents opinion required but it must be a POSITIVE opinion on the candidacy as well.
