Janusz Wojciechowski on the “problem of the rule of law state”. We remind you who created it

On April 29, Prime Minister Donald Tusk met with the Minister of Justice, Prosecutor General Adam Bodnar and the Coordinating Minister of Special Services, Tomasz Siemoniak. Announcing this meeting, Tusk he wrote on website X that this is an issue that is “key to state security”. That day Onet he revealed that the president of the Swiss company Orlen was Samer A. from Lebanon, suspected of contacts with the terrorist organization Hezbollah.

The next day, Prime Minister Tusk at a press conference he explained: – When we talk about European, Western Poland, we also talk about politicians' responsibility for what they do. Yesterday, I asked the Prosecutor General, the Minister of Justice and the Coordinating Minister to meet here, explaining this obvious social need, because you hear and see it more and more clearly. It means that people want to know whether we will hold those who lost on October 15 accountable for the crimes and abuses of power.

Then he added: – I don't want to reassure everyone, I want to assure everyone. Today, prosecutors and the national prosecutor will confirm it at a press conference at 1 p.m. that no one is forgetting anything here. And no one will forget the evil that happened before October 15.

Janusz Wojciechowski, from 2019, reacted to this speech commissioner European Union for Agriculture, nominated for this function by Law and Justice. “In a state ruled by law, the Minister of Justice-Prosecutor General, invited by the Prime Minister to 'visit' and asked about specific investigations, replies as follows: 1) as a minister, I know nothing about these investigations, 2) as a prosecutor, I will not say anything about these investigations” – he wrote April 30 on the X platform (original spelling of all posts).

The entry generated almost 77,000. views, sparked over 100 comments and a lively discussion among website users. “Brutal criticism of the PiS state”; “It was not necessary to combine the functions of minister and prosecutor general. PiS combined it. The prime minister has the right to invite a minister, in this case the minister of justice”; “Do you remember how, during your government in 2005-7, Ziobro, as prosecutor general, went to Kaczyński?”; “So we lived in a lawless country for 8 years? That's interesting…” commented Internet users.

And when Marek Belka replied to Wojciechowski: “From the description, it's a real Zbigniew Ziobro. No doubts” – the EU commissioner defended himself: “Would it occur to you that the discussion may be about the problem and not the names?”

So let us explain who created this “law-abiding state problem”.

The prosecutor general is the supreme authority prosecutor's office. Since 1990 – with an almost six-year break – the office of prosecutor general has been held by the Minister of Justice. These functions were divided by the PO-PSL government through changes Act on the Public Prosecutor's Office and certain other acts. This entered into force on March 31, 2010. Prosecutor General Andrzej Seremet took office at the beginning of April of the same year. The separation of these functions was an implementation of the then electoral program of the Civic Platform. PiS criticized the decision at the time, arguing that the minister should be able to influence penal policy through the prosecutor's office.

That is why the proposal to restore the merger of both functions was included in the PiS election program of 2015. “The return to the model in which the Minister of Justice is also the Prosecutor General will be consistent with the legal tradition of the Republic of Poland. The experiment of separating the two functions, motivated by the party's aversion to the rule of Law and Justice, turned out to be completely wrong and caused great damage. Today we are reaping the bad fruits of that irresponsible decision,” we read in the program with which PiS entered the parliamentary elections in 2015. After winning, on December 24, 2015, to the Sejm referred parliamentary draft of the Law on the Public Prosecutor's Office. He proposed, among others: merging the positions of the Minister of Justice and the Prosecutor General (Article 1, section 2); appointed the National Prosecutor's Office in place of the General Prosecutor's Office; liquidated the National Council of the Prosecutor's Office and the military organizational division of the prosecutor's office.

Already on January 26, 2016, the project she accepted PiS parliamentary majority (236 votes in favour209 against, 7 abstentions), and on February 12, the act was signed by President Andrzej Duda.

The new law entered into force on March 4, 2016. Thus, the then Minister of Justice Zbigniew Ziobro, a politician belonging to the United Right, also became the Prosecutor General. He held these positions for over seven years.

“These changes are intended to restore Poles' faith and trust in the justice system and give them the feeling that the state is properly fulfilling its obligation to ensure security,” argued the then Prime Minister Beata Szydło on March 3, 2016, during a joint conference with the Minister of Justice Zbigniew Ziobro. “The solutions adopted in the new Act on the Public Prosecutor's Office strengthen the depoliticization of the prosecutor's office compared to the current state,” Ziobro said (quoted in: tvn24.pl).

But the Law on the Prosecutor's Office adopted in 2016 contains one more important provision – Art. 12. section 1 – which enables the Prosecutor General or the National Prosecutor to provide the authorities with information on specific cases conducted by the prosecutor's office:

Hence the comments under Janusz Wojciechowski's post expressing outrage at his accusation after Tusk's meeting with Bodnar: because it was during the PiS government that a law was passed that created the “problem of the rule of law”. Article 12(1) 1 MPs from the Civic Coalition they criticized already during the first reading of the bill in the Sejm on January 13, 2016.

“Next, we have Article 12 of the draft bill, which allows the Prosecutor General to provide information to other persons as well. This is not specified at all. Moreover, the consent of the leading prosecutor is not required at all. This may clearly disturb the conduct of the proceedings,” she said on January 13, 2016 in the Sejm Barbara Dolniak, MP and deputy speaker of the Sejm on behalf of the Civic Coalition. “One of the controversial provisions of the new act, pointed out by various groups, is Article 12 of this act,” noted KO MP Małgorzata Pępek at the same meeting. “We remember the situation when, during the PiS government, on the order of Minister Zbigniew Ziobro, files on the fuel case were made available to Jarosław Kaczyński, then an MP and president of PiS, at the party headquarters. Therefore, I have a question: Is Article 12 of the proposed act intended to legalizing such practices? – she asked.

At the same session of the Sejm, Art. 12 was defended by Bogdan Święczkowski, then Deputy Minister of Justice (from 2022 judge Constitutional Tribunal): “Currently, the Prosecutor General does not even have the right to provide such information to the President of the Republic of Poland or the Prime Minister. And this provision has been introduced precisely for this purpose, ladies and gentlemen, so that such information can be provided in the event of a threat to state security.” He then gave a hypothetical example: the Polish prosecutor's office determined that there would be a terrorist attack on an American airlines plane. Currently, the prosecutor general has no “legal possibility” to provide such information to the FBI without violating the Act on the Prosecutor's Office, argued Święczkowski. “And this provision is being introduced, ladies and gentlemen, so that in exceptional situations this information can be provided to prevent a tragedy from occurring,” he added.

A TVN24 journalist drew attention to the fact that it was during the PiS government that the questionable law was passed. Marta Gordziewicz, who also took part in the discussion under Commissioner Wojciechowski's post: “You should ask PAD if it will agree to introduce the 'customs' that it introduced in 2016 with its signature.” In another entry, she emphasized: “However, I still consider this competence of PG, very vaguely described in the regulations, as scandalous.”

Of course, it is not known how Donald Tusk's meeting with the Minister Prosecutor General Adam Bodnar went and what Bodnar conveyed to the Prime Minister – but in the light of the changes in the law described here, we consider Janusz Wojciechowski's accusation to be manipulation.

Ph.D. Mateusz Radajewski, a constitutional expert from the Faculty of Law and Social Communication at SWPS University in Wrocław, explains in an analysis for Konkret24: “In my opinion, Article 12, paragraph 1 of the Law on the Prosecutor's Office raises doubts from the point of view of the rule of law.”

“First of all, it is worth noting that this provision does not limit the list of people to whom information from investigations can be provided. Therefore, it may be received by politicians or other people interested in influencing the work of the prosecutor's office. The conditions regulated in this provision do not protect against abuses in this area, because the phrase 'proper functioning of the state' can be interpreted very broadly. Another problematic issue is the fact that, according to this regulation, information from investigations may be provided without the consent of the prosecutor conducting the proceedings – in this way his work may be hindered, and thus the investigation itself may be negatively affected. “- explains the constitutionalist.

The promise to separate the functions of the Minister of Justice from the Prosecutor General was included in the “100 Specifics for the first 100 days of government” of the Civic Coalition. “A prosecutor cannot be a politician” – we read specifically no. 26. In ours analysis 100 specifics after 100 days of government, we assessed that this demand has been partially implemented.

On January 19, 2024, Minister of Justice Adam Bodnar presented establishing a new act on the prosecutor's office dividing the positions of the Minister of Justice and the Prosecutor General. According to the project, the latter will be appointed (by an absolute majority of votes) by the Sejm with the consent of the Senate, and his term of office will last six years without the possibility of renewal. However, there is still no draft of the new law list of legislative works government.