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Prosecutors Office. How to change the national prosecutor? “Logical defect” in the act

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Restoring the rule of law after the rule of the United Right is one of the most important tasks that the democratic majority set itself after the elections. The changes would also apply to the management of the prosecutor’s office, including the position of the national prosecutor. But wasn’t it “concreted in concrete” after the amendment to the Act? Lawyers agree on a certain flawed provision, but they are divided on how to circumvent it.

In the coalition agreement signed on November 10 by the leaders of the Civic Coalition, Third Way and New Left, it was announced: “We will restore the legal order, shaken by the actions of our predecessors. The courts will be free from political pressure, the prosecutor’s office will be independent and apolitical.” Although it was not included in the agreement, the coalition parties support separating the positions of the Minister of Justice and the Prosecutor General, which PiS combined in 2016.

Separating these positions, as former Ombudsman Adam Bodnar said on TVN24 on November 20 in “Rozmowa Piaseckiego”, is an “absolute priority”. However, this requires changes to the Law on the Prosecutor’s Office – and these may be vetoed by President Andrzej Duda. The current majority coalition does not have enough votes in the Sejm to reject the president’s objection.

The second problem is the management of the National Prosecutor’s Office. It is headed by Dariusz Barski, a trusted man of Zbigniew Ziobro. December 14, as recalled by “Rzeczpospolita”, statutory changes regarding the Central Anticorruption Bureau, the Internal Security Agency and the Foreign Intelligence Agency will enter into force. They assume that the powers to control surveillance conducted by the secret services will be taken over from the prosecutor general – currently Zbigniew Ziobro – by the first deputy prosecutor general, i.e. the national prosecutor, Dariusz Barski. PiS passed this provision on July 7, and on August 17 – during the election campaign – it rejected the Senate’s veto on this bill at the last session of the Sejm of the 9th term. Moreover, it was also decided that the national prosecutor would have full personnel decisions in the prosecutor’s office: only he had the right to supervise investigations into corruption or organized crime. According to prosecutor Aleksandra Antoniak-Drożdż from the Lex Super Omnia Prosecutors’ Association thanks to these changes in the “management of the prosecutor’s office by PG” act [prokuratora generalnego] will be of an apparent nature, because the actual supervision over the activities of this body will be exercised by PK [prokurator krajowy]”.

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Can you crush “concrete” in the National Prosecutor’s Office? Professor Chmaj’s expertise

How we explained in Konkret24, The National Prosecutor’s Office is one of several state institutions “concreted” by the outgoing government. To dismiss the national prosecutor and his deputies, the Prime Minister requires the consent of the President. This provision has been in force only since 2016, i.e. since the beginning of the United Right government. In July 2023, an additional requirement was introduced: the president’s consent to dismiss the national prosecutor must be in writing. Therefore, Minister Ziobro’s transfer of some of the powers of the prosecutor general to his man (Dariusz Barski), who holds the position of national prosecutor, while securing Barski’s position by requiring the president’s consent to his removal, is perceived as “concreting” the National Prosecutor’s Office. “These changes clearly indicate the intention to perpetuate the management staff in the current personnel composition” – rated Lex Super Omnia prosecutors association.

Ziobro’s move to transfer some of the powers to Barski seems to have effectively “consolidated the management team” that supports PiS. However, on November 17, prosecutor Ewa Wrzosek (she was the one who initiated the investigation into the correspondence presidential elections in 2020) posted the following quote on the “National Act will take place upon issuance of the act by the Prime Minister. For its validity and effectiveness, no act of another public authority, including the President of the Republic of Poland, is required.”

These are the words from the document prepared for the Senate in November expert opinion by constitutional expert prof. Marek Chmaja – analyzes the constitutionality of Art. 14 pairs 1 of the Act on the Public Prosecutor’s Office. This article, adopted during the United Right government, reads:

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.

Prof.’s conclusions Chmaja are as follows: – The Constitution of the Republic of Poland does not grant the president any powers in the sphere of shaping the staff of the offices of either the prosecutor general or the national prosecutor; – for all official acts of the president to be effective, they require the countersignature of the Prime Minister, and exceptions are included in Art. 144 section 3 of the Constitution – and this catalog is closed (these acts produce legal effects only after being approved by the Prime Minister); – the president’s refusal to consent to the dismissal of the national prosecutor – to be effective – would have to be conditional on the prime minister’s countersignature; “the provision is therefore burdened with a logical defect (loop) that prevents its correct and rational application” – analyzes prof. Chmaj; – art. 14 pairs 1 in the discussed scope “is in blatant and obvious contradiction with the division of competences between the bodies of the executive power provided for in the Constitution of the Republic of Poland”; according to prof. Chmaja, the Prime Minister should omit this provision and directly apply the provisions of the constitution.

Therefore, the constitutionalist believes: “Granting consent, refusing to grant consent or the failure of the President of the Republic of Poland to take a position on the dismissal of the National Prosecutor has no legal significance. The act of dismissing the National Prosecutor will be effective upon its adoption by the President of the Prime Minister.”

There are over two hundred comments under prosecutor Wrzosek’s post, many of them mocking Zbigniew Ziobro’s maneuver: “Oh well, Zbyszek wasn’t at those classes after all”; “You mean, it’s a johnny of concreting?”; “Zero doubts”; “I have read this opinion and it is completely understandable to an ordinary engineer”; “Barski will not be pleased…” (original spelling of posts).

So is changing the position of national prosecutor really that simple?

The provision “reverses the relationship” between the president and the prime minister as defined in the Constitution of the Republic of Poland

Konkret24 asked three other law experts what they thought about Professor Chmaj’s conclusions. In a similar way to him, Dr. Hab. Joanna Juchniewicz from the Department of Constitutional Law and State Science at the Faculty of Law and Administration of the University of Warmia and Mazury in Olsztyn. In an opinion for Konkret24, he writes that the requirement for the president’s consent to dismiss the national prosecutor violates “the division of tasks between the president and the Council of Ministers resulting from the Constitution.” And he analyzes: “Article 126 of the constitution clearly defines the tasks of the head of state: ensuring compliance with the constitution, guarding sovereignty and external security, inviolability and indivisibility of the state territory (and this is where the president’s competences go).”

As Dr. Juchniewicz notes, the president has no constitutional competences with respect to prosecutors. Therefore, in her opinion, making the dismissal of the national prosecutor dependent on the president’s consent “is too far-reaching a power that encroaches on the scope of tasks entrusted to the Council of Ministers.”

Just like prof. Chmaj, Dr. Juchniewicz believes that, from a logical point of view, the solution contained in the amended version of the Law on the Public Prosecutor’s Office is questionable due to the requirement for the Prime Minister’s countersignature for the president’s consent to dismiss the national prosecutor. Moreover, as Dr. Juchniewicz points out, “the date within which the president should give his consent has not been specified, so the president’s omission blocks the possibility of making changes to the position of the national prosecutor.” The expert reminds that the national prosecutor is the first deputy of the prosecutor general, hence “enabling the president to actually block the dismissal of the national prosecutor is simply irrational, because it prevents the prosecutor general from cooperating with whomever he wants and whom he trusts.”

Dr. Marcin Krzemiński from the Department of Constitutional Law at the Faculty of Law and Administration of the Jagiellonian University in Krakow also supports the accusation of Prof. Chmaja regarding the unconstitutionality of the above-mentioned article. 14. “The constitutional principle is that the President must have the consent of the Prime Minister for his official act, with the exception of competences expressly exempt from this requirement by the constitution. The act reverses this relationship, so the accusation of unconstitutionality seems to be correct,” he writes in an opinion for Konkret24. Dr. Krzemiński shares the opinion of prof. Chmaja that “direct application of the Constitution means the possibility of bypassing unconstitutional statutory regulation by any type of body or entity (not only courts).”

As for the issue of omission by prof. Chmaja of the principle of the presumption of constitutionality of a statute (i.e. that an act should be applied, even if it is obvious that it is unconstitutional, until it is effectively challenged before the Constitutional Tribunal), Dr. Krzemiński believes: “Such an objection to the opinion of Prof. Chmaj would be unjust, because the presumption of the constitutionality of the act “should be understood as Prof. Andrzej Grabowski puts it – only as the distribution of the burden of proof in proceedings before the Constitutional Tribunal. And in the event of a conflict of law with the Constitution, it is logical that we must give priority to the act that is higher in the hierarchy of sources of law.”

The provision “enjoys the presumption of constitutionality”

However, there are doubts about the expertise of Prof. Chmaja was expressed in an opinion for Konkret24 by Dr. Mateusz Radajewski from the Department of Law at the Faculty of Law and Social Communication of SWPS University. In his opinion, even if we assume that the mechanism for dismissing the national prosecutor specified in Art. 14 pairs 1 of the Law on the Prosecutor’s Office is unconstitutional, “it enjoys the presumption of constitutionality and until it is repealed by an act or a judgment of the Constitutional Tribunal [Trybunału Konstytucyjnego]applies.”

Doctor Radajewski does not agree with the statement of prof. Chmaja that the application of Art. 14 is impossible due to the “logic loop” involved. “Although the need for the prime minister to countersign the president’s consent to the dismissal of the national prosecutor may seem peculiar, it is not associated with any paradox that would make the entire structure defective at the logical level – simply, the president’s act consenting to the dismissal of the national prosecutor must additionally have the signature of the Prime Minister is valid” – translator Dr. Radajewski.

As he emphasizes: “There is nothing in this mechanism that would make it impossible to apply.” He gives an example: “This structure is, to some extent, similar to that used in Article 134(4) of the Constitution, according to which the Supreme Commander of the Armed Forces is appointed and dismissed at the request of the Prime Minister by the President, whose act in this matter must also be presented separately signed by the Prime Minister. Also in this case, the initiative comes from the Prime Minister, but the final personnel decision depends on the President, who must obtain the formally separate consent of the Prime Minister.

He also questions the opinion of prof. Chmaja regarding the inconsistency of Art. 14 with the constitution, because it “in no way defines the system of the prosecutor’s office.” Therefore, according to Dr. Radajewski, “it is difficult to claim that any detailed solution in this area may be inconsistent with it.” “In particular, the Constitution does not specify that the prosecutor’s office must be subordinated exclusively to the government and be free from the influence of other state bodies. (…) In the current legal situation, effective dismissal of the national prosecutor is possible only with the written consent of the President of the Republic of Poland and there are no constitutional grounds for omitting it. this requirement,” summarizes Dr. Radajewski. In his opinion, ignoring Art. 14 pairs 1 of the Law on the Public Prosecutor’s Office may deepen the existing legal crisis, and the status of a possible new national prosecutor could be questioned.

Main photo source: Tomasz Gzell/PAP



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