The Criminal Chamber of the Supreme Court ruled that the reinstatement and appointment of Dariusz Barski as national prosecutor in 2022 had a binding legal and constitutional basis and were legally effective. The resolution was adopted by judges selected with the participation of the neo-National Council of the Judiciary, in response to a question from the Gdańsk district court. Representatives of the National Prosecutor's Office wanted to exclude the judges, assessing that this panel “does not create an independent, impartial and impartial court.”
The resolution was adopted by a panel of three judges of the Criminal Chamber of the Supreme Court, chaired by the president of this Chamber, Zbigniew Kapiński. Additionally, the panel included judges Marek Siwek and Igor Zgoliński. All three were appointed to the Supreme Court in procedures before the National Council of the Judiciary after the changes in 2017, the so-called neo-KRS.
The resolution was adopted in response to a question submitted to the Supreme Court in March this year by the Gdańsk district court.
The decision was preceded by a battle regarding the exclusion of the Supreme Court judges deciding the case. Representatives of the National Prosecutor's Office submitted another request to exclude them, arguing that this panel “does not create an independent, impartial and impartial court.” The first such PK application was submitted several days ago. A week ago, a judge from the Chamber of Extraordinary Control and Public Affairs of the Supreme Court – also appointed to the Supreme Court after 2017 – left this application without consideration. On Friday, the Supreme Court found that the next application of the National Prosecutor's Office is identical to the previous one and also left it unexamined.
Questions from the Gdańsk court
The question about the interpretation of the provisions under which prosecutor Barski was reinstated from retirement in 2022 – and therefore about his legal status as a national prosecutor at that time – was asked by the Gdańsk court while considering a complaint against the decision of the prosecutor's assessor from June 2023 discontinuing the investigation. regarding evasion of paying alimony. The problem is that – as this court pointed out – the assessor who decided to discontinue the case was appointed by Barski as the national prosecutor, acting under the authority of the prosecutor general.
“Since a retired prosecutor was not effectively restored to active status, (…) he could not become a holder of the authority of the National Prosecutor, and therefore the actions taken by him should not produce any legal effects. This means that that Dariusz Barski was not entitled to appoint prosecutor's assessors, even acting under the authority of the Prosecutor General,” the district court wrote in the justification for the questions. As he added, “therefore, the persons appointed by him cannot perform the functions of prosecutor's assessor and perform the tasks entrusted to them.”
Changes in the National Prosecutor's Office
Changes at the top of the prosecutor's office were initiated on January 12 this year. Minister of Justice, Attorney General Adam Bodnar during a meeting with Barski then 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 head of government as the new national prosecutor in mid-March.
Barski did not agree with this course of events and sent a constitutional complaint to the Constitutional Tribunal regarding the provisions on the basis of which he was removed from office. President Andrzej Duda he 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 function 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 Barski acted on the basis of 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.
Bodnar on Barski's decisions as national prosecutor: they remain in forceTVN24
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.
Who is Dariusz Barski?
Dariusz Barski is called an eminence grise by commentators on the political scene PIS. He is a trusted person of former Minister of Justice Zbigniew Ziobro. Even before the elections, Barski gained extensive powers as a national prosecutor.
Who is prosecutor Dariusz Barski? His profile is presented by a TVN24 reporterTVN24
– When it turned out that the election was going to be lost, it was decided that the prosecutor general should be deprived of all powers to do anything and these powers were transferred to the national prosecutor – commented former Minister of Justice, Prof. on TVN24. Zbigniew Ćwiąkalski. – Of course it is unconstitutional – he adds.
– After the changes introduced by PiS, the national prosecutor cannot be dismissed because this requires the consent of the president. – At the end of the government, a system was built to provide a lonely island that the new government would not be able to recall – explained Prof. Maciej Gutowski from Adam Mickiewicz University in Poznań.
Barski was not only Zbigniew Ziobro's subordinate, but also has social ties with him. – He was a witness at his (Zbigniew Ziobro's – ed.) wedding. We are dealing not only with official subordination, but also with a certain social and friendly dependence – recalled the former national prosecutor and former head of Ministry of Interior and Administration Janusz Kaczmarek.
Main photo source: Radek Pietruszka/PAP