Adam Bodnar announced on Friday that Dariusz Barski had been dismissed from the position of National Prosecutor. Jacek Bilewicz, who was critical of Zbigniew Ziobro’s actions, was appointed in his place – as acting. The president and representatives of the former ruling camp do not agree with the decision of the head of the Ministry of Justice. The prosecutor’s office also issued a statement.
Jacek Bilewicz became the acting National Prosecutor. At least according to Prosecutor General Adam Bodnar. According to President Andrzej Duda, Dariusz Barski is still the National Prosecutor. – We do not have two National Prosecutors. I want us to recognize that if someone says about himself that he is still the National Prosecutor, despite the decisions of the Prosecutor General, it is not the case that he still is. No, he is not – Prime Minister Donald Tusk said on Friday about the whole situation.
On Friday evening, Adam Bodnar announced that Dariusz Barski – Zbigniew Ziobro’s man – is no longer the National Prosecutor. How is this possible? Two years ago, he was reinstated without any legal basis, says the Ministry of Justice. – When restoring prosecutor Barski from retirement, someone made a mistake by indicating that he would return on the basis of the provisions that introduced new regulations in the law on the prosecutor’s office in 2016. These are the so-called introductory provisions. They were only for a moment – explains Arkadiusz Myrcha, deputy minister of justice from the Civic Coalition.
The President does not recognize such a decision because the consent of the head of state is required for the normal procedure for dismissing the National Prosecutor.
The deputies of the Prosecutor General’s Office notify the prosecutor’s office
The deputies of the Prosecutor General are also protesting, and all of them – except one – are appointed by Zbigniew Ziobro and are reporting to the prosecutor’s office against the Prosecutor General. – We decided to report a crime committed by Adam Bodnar and Jacek Bilewicz. I have been working in the prosecutor’s office for 26 years. I never expected that I would be forced to report a suspicion of committing a crime to the Prosecutor General – says Michał Ostrowski, Deputy Prosecutor General.
The previous management of the Ministry of Justice also submits its notification. – This is a coup d’état (…) There was an attempt to change the political system in Poland – emphasizes Marcin Warchoł from Sovereign Poland.
Prime Minister Donald Tusk – when asked about the legal basis for his minister’s decision – actually has no answer. – There is some serious formal reason why the Prosecutor General decided that Mr. Barski is not the National Prosecutor – said Donald Tusk on Friday evening.
Dispute over applicable regulations
Adam Bodnar supports his decision with the opinions of three law professors. The argument is as follows: Dariusz Barski was retired until 2022, and when he was reappointed to service, the provisions of 2016 were invoked, which – according to the current ministry authorities – were only temporary and no longer effective.
“The reinstatement of prosecutor Dariusz Barski to active service on February 16, 2022 by Prosecutor General Zbigniew Ziobro was made in violation of applicable provisions, i.e. by applying the provisions of the act that were no longer in force (i.e. the Act of January 28, 2016, Introductory Provisions – Law on the prosecutor’s office) – we can read in the press release of the Ministry of Justice.
– Today, a different provision is in force, in the provisions of the Law on the Prosecutor’s Office itself. This is Article 127, which regulates returns from retirement. If prosecutor Barski returned on this basis, this provision in force today, our hands would be tied – notes Arkadiusz Myrcha. – The introductory provisions on the prosecutor’s office do not contain the content of a temporary solution. End of story. What is unclear about this? – asks PiS MEP Patryk Jaki from Sovereign Poland.
In fact, there is no time frame in the provision that the politicians of Sovereign Poland are talking about. The judgment of the Supreme Administrative Court, which PiS politicians refer to today, also states directly that most of the provisions of this act are not temporary.
“Starting from Article 25, the Provisions of the Prosecutor’s Law apply strictly to prosecutors and public prosecutor’s offices. The vast majority of these provisions do not have the nature of transitional provisions. Where a provision is intended to play such a role, the legislator clearly indicates this by using the phrase ‘until the date’, ‘as of’, ‘until the time’ – we can read in the judgment of the Supreme Administrative Court from 2019.
However, according to some lawyers, although there is no express validity period in the provision, these two months of validity will be found in subsequent provisions, because the act was created so that the PiS government could combine the function of the National Prosecutor with the Minister of Justice. – It seems to me that it is correct to interpret this act as an act introducing provisions that says “you have to assemble the prosecutor’s office within 60 days” and you cannot use it a few years later, arbitrarily, this instrument, which was basically a one-time use – argues Professor Maciej Gutowski , attorney at Adam Mickiewicz University in Poznań. We also hear that since today there is another, more complicated procedure for restoring prosecutors from retirement, the first one is no longer valid. – This special provision, which provided for a faster path for restoring prosecutors from retirement to active status at the beginning of the creation of this new prosecutor’s office, is an exceptional provision – says Dr. Witold Zontek from the Department of Criminal Law of the Jagiellonian University.
The matter is certainly not clear-cut. The head of the Left club admits with disarming honesty that the idea was to find a recipe for deconcreting the prosecutor’s office. – We train as lawyers to be able to find legal options that will bring us closer to our preferred solution – says Anna Maria Żukowska from Nowa Lewica. – I think this is an excellent move. This is where Minister Bodnar and his colleagues found a provision that can be invoked – he adds.
Just before PiS lost the elections, Prosecutor Barski was given a lot of additional powers, and since he could only be dismissed with the president’s consent, the new Prosecutor General’s hands were tied. – It’s probably an illegal option, but it doesn’t really matter because we don’t have any institution in Poland that would be able to decide on it. We are at the stage of power politics, where whoever has the power and strength to force something through simply does it – Michał Wawer from Konfederacja assesses the whole situation.
Until now, Jacek Bilewicz worked in one of the prosecutor’s offices in Warsaw. He is a member of the “Lex super omnia” Association of Prosecutors, which is critical of the changes introduced by Zbigniew Ziobro.
The president’s opinion is needed to appoint a new National Prosecutor. For now, Jacek Bilewicz is only acting.
The National Prosecutor, as the first deputy of the Prosecutor General, and the remaining deputies of the Prosecutor General, no more than 7 in number, are appointed from among the prosecutors of the National Prosecutor’s Office and dismissed from these functions by the Prime Minister at the request of the Prosecutor General. The National Prosecutor and other deputies of the Prosecutor General are appointed after obtaining the opinion of the President of the Republic of Poland, and dismissed with his written consent.
Main photo source: TVN24