Poland’s constitutional court finds commission investigating use of Pegasus spyware unconstitutional

Poland’s Constitutional Tribunal (TK) has ruled that a parliamentary commission investigating the use of Pegasus spyware under the former Law and Justice (PiS) government is unconstitutional in the scope of its activity.

The head of the commission, however, has dismissed the ruling as having no legal force because it was issued with the involvement of a judge illegally appointed under PiS and because the TK acts on the “political orders” of the former ruling party.

When a new ruling coalition, led by Donald Tusk, came to power in December it pledged to investigate various alleged abuses committed under the outgoing PiS government. That included the purchase and use of Pegasus, a powerful Israeli-made tool that allows monitoring of mobile phones.

In February, a special parliamentary committee was established to look into the use of the spyware, which, according to Poland’s justice minister, was used on almost 600 people between 2017 and 2022. Those targets included a number of opponents of the PiS government.

The first witness called before the commission was PiS chairman Jarosław Kaczyński. Later, however, members of the party refused to testify after the TK – whose chief justice Julia Przyłębska is a close personal associate of Kaczyński – issued an interim order for the commission to halt activity.

That order was issued while the TK considered a motion brought by PiS MPs, who argued that the commission was unconstitutional. However, the order was ignored by the ruling coalition – which rejects the legitimacy of the TK – and the commission continued its work.

In their motion, the PiS MPs claimed that the vaguely defined scope of the commission’s activities and the “indeterminacy of the case as a whole and its time horizon” render the motion establishing the body unconstitutional.

“The scope of the commission activities has been defined in a flawed manner, in breach of the principle of legal determinacy; it is far from precise…it is constructed incorrectly from the point of view of logic,” the MPs wrote in the motion filed in March.

MPs also noted that the committee is meant to investigate the activities of courts that gave or refused permission for the use of Pegasus. In their view, it is unacceptable for a parliamentary commission to assess the legality of courts’ adjudicatory activity.

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In a ruling issued today, the TK agreed with the PiS MPs. The decision, made unanimously by a panel of three judges, found that the resolution establishing the Pegasus commission “is inconsistent with article 2 of the constitution” (which states that “Poland shall be a democratic state ruled by law”).

However, among the three members of the panel, one, Jarosław Wyrembak, is among three TK judges to have been found by both Polish and European court rulings to have been appointed illegally under PiS. Another, Stanisław Piotrowicz, served as a PiS MP until being nominated to the TK by his own party in 2019.

The current government has argued that rulings involving the three unlawfully appointed judges – often referred to as “doublers” – have no legal force. It has also said that Piotrowicz and another former PiS MP serving on the court should not be involved in rulings on political cases due to conflicts of interest.

After the TK’s ruling was announced today, the head of the Pegasus commission, Magdalena Sroka, an MP from the ruling coalition, immediately rejected it.

“We all knew what the tribunal’s ruling would be before it was even published,” wrote Sroka on social medial. “The TK has once against carried out a political order…Rulings involving doubler judges are not binding.”

Witold Zembaczyński, another MP from the ruling coalition, accused the “political TK” of trying to help “cover up the crimes of the mother party” by issuing “a meaningless pseudo-ruling”.

Since the new government took office in December, the TK – which continues to be filled entirely by PiS-era appointees – have issued a number of rulings against the governing coalition, which has in turn declared them to be invalid.

Main image credit: Kancelaria Premiera / flickr.com (under CC BY-NC-ND 2.0)

Alicja Ptak

Alicja Ptak is senior editor at Notes from Poland and a multimedia journalist. She previously worked for Reuters.