The verdict is the result of a dispute that arose in January this year over the appointment of the leadership of the National Prosecutor’s Office. Four questions relating to this dispute were formulated at the beginning of March by the District Court of Gdańsk-Południe.
Read also: Who is the national prosecutor? For some, Barski, for others, Korneluk
Changes at the top of the prosecutor’s office were initiated on January 12 this year. Minister of Justice and Prosecutor General Adam Bodnar. During the meeting with Barski, he handed him a document stating that his reinstatement to active service on February 16, 2022 by the previous Prosecutor General Zbigniew Ziobro “was made in violation of applicable regulations and did not produce legal effects.” By the Prime Minister’s decision, Prosecutor Jacek Bilewicz became the acting national prosecutor – until Barski’s successor was selected in the competition. The competition was won in the second half of February by prosecutor Dariusz Korneluk, who was appointed by the Prime Minister as the new national prosecutor in mid-March.
Prosecutor Barski did not agree with this course of events, and he filed a constitutional complaint to the Constitutional Tribunal regarding the provisions on the basis of which he was removed from office. President Andrzej Duda said then that he still held the position that the national prosecutor was Dariusz Barski, who “was not effectively removed from his position.” In mid-January, the President submitted a request to the Constitutional Tribunal regarding the dispute over competences between the President of the Republic of Poland, the Prime Minister and the Polish People’s Republic.
The Ministry of Justice, informing in January about the removal of Barski from the position of national prosecutor, emphasized that “all decisions taken by prosecutor Barski from March 18, 2022 to January 11, 2024, remain in force to the extent that prosecutor “Barski acted based on the authorization and on behalf of the Prosecutor General’s Office.” “However, in the case of independent decisions made by the National Prosecutor, all issues in this regard will be subject to detailed analysis and, depending on its results, further decisions will be made,” the Ministry added.
However, as the Gdańsk court noted in the justification for its questions, there were different legal views on this issue. Therefore, the court asked the Supreme Court whether the provision regarding the reinstatement of a prosecutor from retirement included in the Act containing regulations introducing the Law on the Prosecutor’s Office of 2016 was episodic in nature or not. Moreover, he asked whether the reinstatement of the prosecutor from retirement and his subsequent appointment as national prosecutor had legal effects. The court also asked a general question whether it is authorized to examine the correctness of the appointment of a prosecutor’s assistant at all.
See also: Fight for the prosecutor’s office. Here is a timeline of events and key facts
The legal issue hit to a panel of three judges of the Criminal Chamber of the Supreme Court, and the panel is chaired by the president of this Chamber, Zbigniew Kapiński. Additionally, the panel includes judges Marek Siwek and Igor Zgoliński. All three judges were appointed to the Supreme Court in procedures before the National Council of the Judiciary after the changes in 2017.
As Deputy Minister of Justice Dariusz Mazur told PAP, “if this will be decided by a panel composed of improperly appointed judges, and this is how it is to be resolved, then in accordance with the uniform and established jurisprudence of the ECtHR, there is no doubt that this is a faulty panel, because it is not an independent and impartial court established by law within the meaning of the European Convention on Human Rights.
“There are also judgments of the CJEU stating that if judgments are so deeply flawed, they can be omitted and not applied,” Mazur added. Therefore – as the deputy head of the Ministry of Justice pointed out – in his opinion, a possible resolution of the Supreme Court issued by such a composition of the Supreme Court “can be ignored” by common courts.
Several days ago, the prosecutor’s office also requested the exclusion of the entire Supreme Court judge from this case. A week ago, a judge from the Chamber of Extraordinary Control and Public Affairs of the Supreme Court left this application without consideration.
