The website of the Ministry of Justice provides external legal opinions of recognized experts and legal authorities regarding the assessment of the effectiveness of restoring prosecutor Dariusz Barski to active service, informed the Minister of Justice and Attorney General Adam Bodnar on Friday.
On Friday, the Minister of Justice – Attorney General Adam Bodnar during a meeting with the National Prosecutor Dariusz Barski, he handed him a document stating that he was reinstated 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 any legal effects.” “A provision of the act was applied that was no longer in force,” the information provided by the ministry stated.
“External legal opinions of recognized experts and legal authorities, i.e. Prof. Anna Rakowska (UŁ), Prof. Sławomir Patyra (UMCS) and Prof. Grzegorz Kuca (UJ), are now available on the website of the Ministry of Justice, regarding the assessment of the effectiveness of the reinstatement of prosecutor Dariusz Barski for active service,” wrote Adam Bodnar on the X platform.
He also posted an entry from the official account of the Ministry of Justice on the X platform, which informed that the ministry’s website published “legal opinions that were prepared during the assessment of the effectiveness of restoring prosecutor Dariusz Barski to active service on February 16, 2022 by the then Prosecutor General Mr. Zbigniew Ziobro”
“External legal opinions from recognized experts and legal authorities, i.e. Prof. Anna Rakowska (UŁ), Prof. Sławomir Patyra (UMCS) and Prof. Grzegorz Kuca (UJ), clearly indicate that the actions taken by Minister Zbigniew Ziobro on 16 February 2022, preceded by a request from prosecutor Dariusz Barski on the same day, were made without a proper legal basis and have no effect,” we read.
Ph.D. Kuca: the decisions of the Prosecutor General have no legal effects
“The temporal (temporal) scope of application of Article 47 of the Prosecutor’s Office should cover the period from the date of entry into force of this Act, i.e. from March 4, 2016, to the date of personal establishment of the prosecutor’s office, i.e. until May 4, 2016.” – said Dr. Hab. in his conclusions. Grzegorz Kuca from the Faculty of Law and Administration of the Jagiellonian University.
“As a consequence of such recognition, decisions of the Prosecutor General taken pursuant to Article 47, paragraph 2 of the Prosecutor’s Office after May 4, 2016 do not have legal effects in terms of restoring a retired prosecutor to service in the position he last held. position or an equivalent position, and an application submitted after May 4, 2016 should be considered in accordance with Article 127, paragraph 1 of the Civil Code, which refers to the appropriate application of the provisions of Articles 69-71, Article 73, Article 74, Article 76, Article 85, paragraph 4, Articles 94d-94g, Articles 99-102 and Article 104 of the Act, including Article 74 of the Act on the Act,” he emphasized.
Ph.D. Grzegorz Kuca added that “due to the recognition that the decisions of the Prosecutor General taken on the basis of Article 47, paragraph 2 of the Prosecutor’s Office do not produce legal effects and were not carried out in a specific procedure to which the provisions of the Code of Civil Procedure or the Code of Administrative Procedure would apply, the restoration of the state in accordance with does not require any special procedure by law and may be made in ordinary written form.
Ph.D. Rakowska: decisions without legal basis
“Decisions of the Prosecutor General made pursuant to Article 47, paragraph 2 of the introductory provisions after May 4, 2016 are certainly devoid of legal basis, which results from the inability to apply the procedure provided for in this provision after that date,” wrote Dr. Hab. in her opinion. Anna Rakowska from the Department of Constitutional Law at the University of Łódź.
She emphasized that “no act issued without a legal basis can be effective in a legal state in which the principle of legalism applies.” “Therefore, the body that issued the ineffective act, i.e. the Prosecutor General, has the competence to declare that the prosecutor ‘reinstated’ in the non-binding procedure provided for in the episodic Article 47 of the introductory provisions is a retired prosecutor,” she added.
“The justification for such competence is a reference to the concept of the possibility of the body actually declaring the ineffectiveness of its previous acts or activities,” she said.
Ph.D. Patyra: prosecutors remain retired
Ph.D. In his conclusions, Sławomir Patyra pointed out that the procedure adopted in Art. 47 of the Act did not specify the time frame of its validity, which was a violation of the principles of proper legislation, which are an integral component of the principle of a democratic state of law.
“In accordance with the general rules of interpretation, in particular regarding the application of purposive and systemic interpretation, the regulations indicated in point 1 of the conclusions could only apply until May 4, 2016.” – he wrote.
In the next point, he explained that, therefore, the decisions of the Prosecutor General made pursuant to Art. 47 section 2 of the Act (…) after May 4, 2016, do not have legal effects in terms of restoring prosecutors who were previously retired to active service.
“In relation to prosecutors (…), the Prosecutor General is obliged to state that they are still retired prosecutors, and therefore they cannot perform any duties as part of active prosecutorial service, much less hold managerial positions in any units of the prosecutor’s office, both in district, district and regional prosecutor’s offices, as well as in the National Prosecutor’s Office,” he added.
Main photo source: Tomasz Gzell/PAP