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.

PiS MP @BoguckiZbigniew
‼️ @TK_GOV_PL: In a case initiated by a motion from a group of MPs that I represented today, the Court ruled that Article 2 of the Resolution of the Sejm on the establishment of a commission of inquiry into the so-called „Pegasus Case” is inconsistent with… https://t.co/OEGevrZm7e

— Law and Justice (@pisorgpl_EN) September 10, 2024

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.

Pegasus spyware was used to surveil 578 people under the former PiS government, reports the justice minister.

Though many targets were legitimate, there were also cases where Pegasus was used against figures „inconvenient” for PiS, says another minister https://t.co/JBxMTeUSxR

— Notes from Poland 🇵🇱 (@notesfrompoland) April 16, 2024

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, Stanislaw 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 conflict of interest.

The Supreme Court has found that rulings made by the Constitutional Tribunal (TK) involving judges illegitimately appointed under the former PiS government are invalid.

One such ruling was the near-total abortion ban introduced by the TK in 2020 https://t.co/0tDuHNMQ2p

— Notes from Poland 🇵🇱 (@notesfrompoland) January 3, 2024

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-riling”.

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 new ruling majority, which has in turn declared them to be invalid.

Jakie będzie orzeczenie trybunału JP wszyscy wiedzieliśmy już zanim ono zapadło. Oznacza to,że TK kolejny raz zrealizował polityczne zlecenie. Próba zablokowania prac komisji podyktowana jest strachem przed odpowiedzialnością. Orzeczenia z udziałem sędziów dublerów nie są wiążące

— Magdalena Sroka (@MagdalenaSroka) September 10, 2024

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