The takeover of the prosecutor’s office, conducted by the politicians, who after the election to the Sejm and the Senate in 2023, took over the government in Poland, started on the day of the 12th January 2024. Then the General Prosecutor – Adam Bodnar informed the National Prosecutor- Dariusz Barski that he is being shifted from performing his duties due to inefficiency in restoring him to active duty from the retirement in 2022, apropos he can no longer perform the role of the National Prosecutor.[1] Simultaneously as a consequence of actions made by the General Prosecutor and the Prime Minister new people were designated to act as a National Prosecutor – first it was the prosecutor Jacek Bilewicz and then the prosecutor Dariusz Korneluk.[2]
Not long after these disturbances, on the day of 15th January 2024, the legal National Prosecutor- Dariusz Barski made a complaint to the Constitutional Tribunal with the motion requesting interim measures.[3] He demands an ascertainment that he was rightly brought to active duty. It will equal that he still acts as the National Prosecutor and that designation of other people was illegitimate.[4]
By interim measures resolution from the 15th January 2024 given by the Constitutional Tribunal ordered all public authorities to stop taking actions in order to prevent Dariusz Barski from exercising his privileges, tasks and competences appertain to the prosecutor of the National Prosecutor’s Office in active duty as well as performing the function of the National Prosecutor and to stop a resolution brought in by the Prime Minister on the 12thJanuray 2024 which presumed an appointment of Jacek Bilewicz to perform the function of the National Prosecutor and forbid taking actions being execution of privileges, tasks and competences of the National Prosecutor by a person appointed to be a National Prosecutor with no legal foundation.[5]
Nearly simultaneously the President of the Republic of Poland submitted to the Constitutional Tribunal a motion to settle disputes over authority between the President of the Republic of Poland and the Prime Minister and the Public Prosecutor General. This case started by the President concerns the ability to decide who become a National Prosecutor: who can decide about this, is it acceptable for the General Prosecutor to make this decision on his own omitting the competences of the Prime Minister and the President and the existence of created but not mentioned in any law act competence of General Prosecutor to retire the National Prosecutor as well as to the legal potential of making a decision consisting of commending by the Prime Minister on the motion of the General Prosecutor to act as a National Prosecutor.[6]
The very content of these both motions submitted to the Constitutional Tribunal and the interim measures made by the Tribunal should have induced governing to the above-average temperance in accomplishing factual actions made by disputed people acting as a National Prosecutor. Considering all the arguments, in particular effects of the interim measures from the day of 15th January 2024, to the discussed issue it should be added that the decisions made to cast the function of the National Prosecutor and decisions given by these persons must be treated us as ineffective due to being made in contradiction to the provisions given by the Constitutional Tribunal.
The same goes with human resource decisions made after the 12th January 2024 by people performing the function of the National Prosecutor[7] in reference to executives of departments, executives of offices, directors of the departments of the National Prosecutor’s Office as well as commending of performing duties on those fields. Ineffective are also, made after the 12th January 2024 by people performing the function of the National Prosecutor, appointments of Provincial Prosecutors, Regional Prosecutors and District Prosecutors. It should be stressed that all those appointments were made by people with no legal force coming from currently valid regulations.
Unfortunately in the practice of the Prosecutor’s office since the 12th January 2024 there has been a staff exchange of functional prosecutors which are Provincial Prosecutors, Regional Prosecutors and District Prosecutors virtually in every entity.[8] Due to the law Provincial, Regional and Districts can be appointed, after presenting nomination to the proper assembly of prosecutors, and recalled by the National Prosecutor.[9] Lack of structural anchor of the person performing factual duties of the National Prosecutor results in the fact that all human resources decisions made by him after the 12thJanuary 2024 have a legal defect and are null.
The consequences of invalid human resource decisions may directly affect trail affairs. Currently ruling law acts give determined trial competences for prosecutors performing several functions in the prosecutor’s office.
As an example the investigation should be finished in 3 months. On justified occasions the period of investigation can be prolonged by the prosecutor supervising the investigation or by a direct supervisor of the prosecutor leading the investigation. On justified occasions the proper superior prosecutor to the prosecutor in charge of the investigation can prolong the investigation for a designated period of time.[10] As it can be seen, the law reserves the ability to prolong the investigation only to the competences of prosecutors’ supervisors and directly superior prosecutors.
The legal definitions of the supervisor prosecutor and superior prosecutor are included in The Law on the Prosecutor’s Office Act.[11] So for a prosecutor of the District Prosecutor’s Office a supervisor is the District Prosecutor or their deputy (within deputed doings). For a prosecutor of the Regional Prosecutor’s Office a supervisor is the Regional Prosecutor or their deputy (also within deputed doings). For a prosecutor of the National Prosecutor’s Office a supervisor is the National Prosecutor and other deputies of the National Prosecutor within deputed doings.
The superior prosecutor is a prosecutor who runs the structural entity of the Prosecutor’s Office of higher level, as well as a prosecutor of this entity or a prosecutor delegated to it within deputed doings. In actions taken by the prosecutor in the National Prosecutor’s Office the superior prosecutor is the First Deputy of the General Prosecutor that is the National Prosecutor.
If indicated functions had been cast in a way that they are invalid then decisions to prolong investigations have legal defects. Furthermore, if investigations are not properly prolonged, the Prosecutor’s Office loses the opportunity to continue preparatory proceedings like an ability to conduct evidences, take preventive measures, press charges and formulate the bill of indictment.
Presented issue connected with prolonging the investigations is just a one example of problems that are a consequence of the prevention of performing the function of the National Prosecutor by a person eligible to and attempts of designating other people to perform this function. It should also be presented that the National Prosecutor has exclusive powers to apply operational control[12] such as giving permission to the police and other services relying on reaching and perpetuating the content of conversations taken by technical devices; reaching and perpetuating image or audio in rooms, vehicles or in other non-public spaces; reaching and perpetuating the content of correspondence as well as reaching and controlling packages. Performing the function of the National Prosecutor by an unauthorized person may result in the invalidity of the whole procedure of operational control and the inadmissibility of using evidence sourced in such a way.
Finally, it is important to mention that the Supreme Court, in its newest judicial decision, decided that the debarment of Dariusz Barski from the position of the National Prosecutor was not in accordance with the law. According to the judicial resolution of the Supreme Court from the 27th September 2024 acts, on the basis of which the prosecutor Dariusz Barski in 2022 was brought back to active duty, had and still have a legal force.[13] Thereby, he was effectively appointed to the office of the National Prosecutor and could not been shifted from performing his duties.
[1] Announcement of the Ministry of Justice of 12 January 2024 – information on the recognition of the reinstatement of prosecutor Dariusz Barski to active service as an act committed in violation of the provisions of law; www.gov.pl/web/sprawiedliwosc/informacja-o-uznaniu-przywrocenia-prokuratora-dariusza-barskiego-do-sluzby-czynnej-za-akt-dokonany-z-naruszeniem-przepisow.
[2] i.e. Jacek Bilewicz was appointed on 12 January 2024 as acting National Prosecutor (www.gov.pl/web/sprawiedliwosc/prokurator-prokuratury-krajowej-jacek-bilewicz-pelniacym-obowiazki-prokuratora-krajowego), and Dariusz Korneluk was appointed on 14 March 2024 as National Prosecutor (www.gov.pl/web/sprawiedliwosc/dariusz-korneluk-nowym-prokuratorem-krajowym).
[3] documentation of the case SK 13/24 on the website of the Constitutional Tribunal: trybunal.gov.pl; in this case, the date of the hearing is scheduled for 22.11.2024.
[4] The complainant requested a declaration that Article 47 §§ 1 and 2 of the Act of 28 January 2016. Provisions introducing the Law on the Bar (Journal of Laws of 2016, item 178) in connection with Article 19(3) of the Act of 9 October 2009 amending the Act on the Public Prosecutor’s Office and certain other acts (Journal of Laws of 2009, No. 178, item 1375), construed as meaning that a prosecutor remaining on the date of entry into force of the Act of 28 January 2016. The provisions introducing the Act – the Law on the Retired Public Prosecutor’s Office may return to service at their request to the last position held or an equivalent position only within a period of two months from the date of entry into force of the said Act, i.e. in the period from 4 March 2016 to 4 May 2016 – is inconsistent with Article 60 of the Constitution of the Republic of Poland in conjunction with Article 31(3) of the Constitution of the Republic of Poland.
[5] Announcement of the National Prosecutor’s Office of 15 January 2024; www.gov.pl/web/prokuratura-krajowa/postanowienie-tymczasowe-trybunalu-konstytucyjnego.
[6] documentation of the case Kpt 1/24 on the website of the Constitutional Tribunal trybunal.gov.pl.
[7] Look at endnote 2.
[8] www.prawnicydla.pl/publikacja/raport-o-naruszeniu-prawa-przez-rzad-polski/; e.g. the appointment of a new provincial prosecutor in Krakow Piotr Niezgoda (www.gov.pl/web/pr-krakow/19022024-informacja-o-powolaniu-prokuratora-regionalnego-w-krakowie), the appointment of a new provincial prosecutor in Wrocław Piotr Wójtowicz (www.gov.pl/web/prokuratura-krajowa/informacja-o-powolaniu-prokuratora-regionalnego-we-wroclawiu); the appointment of a new provincial prosecutor in Białystok Tadeusz Marek (www.gov.pl/web/prokuratura-krajowa/informacja-o-powolaniu-prokuratora-regionalnego-w-bialymstoku); the appointment of a new provincial prosecutor in Gdańsk Paweł Pik (www.gov.pl/web/prokuratura-krajowa/informacja-o-powolaniu-prokuratora-regionalnego-w-gdansku).
[9] Article 15 § 1 of the Act of 28 January 2016. Law on the Public Prosecutor’s Office Act (Journal of Laws No. 2024, item 390).
[10] Article 310 §§ 1 and 2 of the Act of 6 June 1997. Code of Criminal Procedure (Journal of Laws of 2024, item 37).
[11] Article 31 § 1 and Article 33 § 1 of the Act of 28 January 2016. Law on the Public Prosecutor’s Office Act (Journal of Laws No. 2024, item 390).
[12] e.g. Article 19 of the Act of 6 April 1990 on the Police (Journal of Laws No. 2024, item 145); Article 17 of the Act of 9 June 2006. on the Central Anti-Corruption Bureau (Journal of Laws of 2024, item 184); Article 27 of the Act of 24 May 2002 on the Internal Security Agency and the Foreign Intelligence Agency (Journal of Laws of 2024, item 812); Article 9e of the Act of 12 October 1990 on the Border Guard (Journal of Laws of 2024, item 915); Article 42 of the Act of 8 December 2017 on the State Protection Service (Journal of Laws of 2024, item 325).
[13] Resolution of the Supreme Court of 27 September 2024, I KZP 3/24; www.sn.pl/orzecznictwo/SitePages/Najnowsze_orzeczenia.aspx?ItemSID=1933-301f4741-66aa-4980-b9fa-873e90506a11&ListName=Zagadnienia_prawne. Subsequent hearings on other matters related to the same issue (I KZP 6/24 and I KZP 7/24) were set by the Supreme Court for 27 November 2024.