Supreme Court issues ruling contradicting Polish government’s decision to replace national prosecutor

Poland’s Supreme Court has issued a ruling that effectively goes against the government. It found that a senior prosecutor was legitimately appointed under the former ruling Law and Justice (PiS) party, meaning he should therefore not have been replaced by the current ruling coalition earlier this year.

The ruling was welcomed by President Andrzej Duda, a PiS ally, who said it confirmed that the current government had acted “illegally”. However, it was rejected as having no legal force by the justice minister because the ruling was issued by judges appointed by a judicial body rendered illegitimate by PiS’s reforms.

On Friday, the criminal chamber of the Supreme Court ruled that the reinstatement of Dariusz Barski – who had previously gone into retirement – and his appointment as national prosecutor in 2022 – at a time when PiS was in power – was carried out in a legal and binding manner.

That contradicts the argument used in January this year by Adam Bodnar – the justice minister and prosecutor general in the new government that replaced PiS at the end of last year – to appoint a new national prosecutor in Barski’s place.

Bodnar made that move on the basis that Barski had been illegitimately appointed to the position in 2022. He claimed to have obtained three opinions from law professors supporting that position.

However, various senior prosecutors, also appointed under PiS, declared Bodnar’s actions to be unlawful and filed a complaint against him. The constitutional court, which is stacked with PiS appointees, ordered Bodnar’s decision to be suspended. Bodnar said he does not recognise the legitimacy of that order.

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Today’s ruling by the Supreme Court comes as the result of a request by the district court in Gdańsk. It was considering an appeal against a decision by a prosecutor appointed by Barski to discontinue proceedings in a case relating to the non-payment of alimony.

The Gdańsk court asked the Supreme Court whether Barski was properly appointed in 2022, in order to therefore assess the legitimacy of the prosecutor later appointed by him.

The current national prosecutor’s office – under the control of a figure appointed by the present government – had argued that the Supreme Court judges assigned to rule on the case should be excluded because they were nominated to their positions by the National Council of the Judiciary (KRS) after it was reformed by PiS.

Those reforms, which gave politicians greater influence over judicial appointments, rendered the KRS illegitimate, according to European and Polish court rulings. Judges appointed by it are often referred to as “neo-judges” by their critics, to emphasise that they do not have a proper status.

However, the Supreme Court’s chamber of extraordinary review and public affairs – which is staffed by neo-judges and has been found to be an illegitimate body by the European Court of Justice – rejected the national prosecutor’s office’s attempts to have criminal chamber judges excluded from the Barski case.

After the Supreme Court’s criminal chamber today ruled that Barski had been properly appointed in 2022, Duda said that he “welcomed the ruling with satisfaction.” It “confirms the correctness of my position on the illegality of the removal of prosecutor Barski by the government,” he added.

Duda was closely involved in PiS’s judicial reforms during its time in power and has been an opponent of the new government that came to power in December, regularly accusing it of violating the law. It was Duda who, as president, swore in the three Supreme Court judges who issued today’s ruling.

However, the national prosecutor’s office issued a statement shortly afterwards saying that it does not recognise today’s ruling because it was issued “by unauthorised persons”.

It added that two lower courts in the city of Szczecin, which were staffed by properly appointed judges, had issued rulings confirming Bodnar’s view that Barski had not been properly appointed in 2022.

Bodnar himself likewise declared that “today’s position issued by neo-judges is not binding” and results from the “politicisation of the justice system” by PiS. “I will not deviate from my path of restoring an independent judiciary and prosecutor’s office to citizens,” he added.

Today’s developments add further to the chaos that has been created by the former PiS government’s overhaul of the judiciary and the new government’s efforts to undo it, which have often been met with resistance by the very institutions they are seeking to reform.

Main image credit: Darwinek/Wikimedia Commons (under CC BY-SA 3.0)

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.