Prosecutors appointed under Poland’s former government protest actions of new administration

Prosecutors appointed under the former Law and Justice (PiS) government are protesting against the decision by the new government to remove and replace the national prosecutor, which is the second-most-senior position in the prosecutorial system. They say the move was carried out illegally.

The situation represents a further escalation of the conflict over Poland’s judicial system as the new administration introduces policies aimed at undoing what it says were eight years of repeated rule-of-law violations under PiS.

Justice minister @Adbodnar says that the US ambassador to Poland „positively assessed the [new government’s] activities aimed at the restoration of the rule of law in Poland” during a meeting between the pair https://t.co/xxwUkvrOzJ

— Notes from Poland 🇵🇱 (@notesfrompoland) January 12, 2024

On Friday, Adam Bodnar, who is justice minister and prosecutor general in the new government, announced that the man who was serving as national prosecutor, Dariusz Barski, had been illegitimately appointed to the position in 2022 under the PiS government.

Bodnar presented legal opinions from three law professors saying that the return to employment by Barski, who had previously been retired, was done in violation of regulations. Barski is a close associate of Zbigniew Ziobro, who served as justice minister and prosecutor general in the PiS government.

As a result of Bodnar’s decision, Prime Minister Donald Tusk instead decided that Jacek Bilewicz, who was appointed as one of Barski’s deputies last week, would be promoted to serve as acting national prosecutor.

Prezentujemy opinie prawne, które zostały sporządzone w czasie oceny skuteczności przywrócenia Pana prokuratora Dariusza Barskiego do służby czynnej w dniu 16 lutego 2022 roku przez ówczesnego Prokuratora Generalnego Pana Zbigniewa Ziobrę.

Zewnętrzne opinie prawne od uznanych… pic.twitter.com/JBZDBNndtW

— Min. Sprawiedliwości (@MS_GOV_PL) January 12, 2024

That prompted a protest by seven deputy prosecutors general, all of whom were also appointed when Ziobro was in power, reports news website OKO.press. One of them, Michał Ostrowski, filed a complaint arguing that the removal of Barski had been carried out illegally.

Another deputy prosecutor general, Robert Hernand, who has served in that position since 2010, when PiS was not in power, announced a blockade of the national prosecutor’s office to prevent Bilewicz from entering.

Subsequently, on Sunday regional prosecutors published a letter in which they “expressed strong opposition to the actions taken by Adam Bodnar, which have no legal basis”.

They noted that “the national prosecutor and other deputies to the prosecutor general are appointed after obtaining the opinion of the president of Poland, and dismissed with his written consent”. Because this process was not followed, they said they continue to recognise Barski as national prosecutor.

Oświadczenie Zastępcy Prokuratora Generalnego Michała Ostrowskiego pic.twitter.com/wLQCX6W7o3

— PROKURATURA (@PK_GOV_PL) January 13, 2024

The new government’s actions also prompted an angry response from figures associated with the former PiS-led government, which was in power from 2015 until last month.

“This is another scandal and violation of the law,” declared PiS chairman Jarosław Kaczyński on Sunday. His party, now the main opposition, has accused the new government of violating the law in a number of areas, including during its takeover of public media and the detention of two convicted former PiS ministers.

President Andrzej Duda, a PiS ally, also expressed support for Barski, whom he held a meeting with this morning to discuss “the attempted attack on the independent prosecutor’s office”, said presidential aide Wojciech Kolarski.

💬 Prezes PiS J. Kaczyński: To, co się w tej chwili dzieje, to jest próba wykreowania nowego, nieprzewidzianego przez prawo, przez ustawę o prokuraturze stanowiska – stanowiska pełniącego obowiązki Prokuratora Krajowego. Przepisy nie przewidują istnienia takiego stanowiska i w… pic.twitter.com/ItpqCB4Fpq

— Prawo i Sprawiedliwość (@pisorgpl) January 14, 2024

The government has, however, stood its ground. On Sunday, Tusk tweeted that “just as the PiS occupation of Poland ended, the PiS occupation of state offices will [also] end”.

This morning, the justice ministry announced that Bodnar had initiated proceedings against Hernand “in connection with violating the dignity of the prosecutor’s office”.

The ministry said that the decision had been made because Hernand recorded and then published online a video of him confronting Bodnar, with the “intention to put his superior in an uncomfortable situation and publicly discredit him”.

Publikujemy nagranie z próby przejęcia Prokuratury Krajowej przez ministra sprawiedliwości Adama Bodnara. Tak wyglądały kulisy. Więcej na ten temat w tekście ⬇️: https://t.co/NuV8I3EvFo pic.twitter.com/qQ7VZ4B610

— DoRzeczy (@DoRzeczy_pl) January 13, 2024

Jacek Skała, head of the prosecutors’ trade union, told Business Insider Polska that the result of Bodnar’s move to replace Barski could be further chaos and divisions within the legal system.

Skała notes that, if Barski was deemed never to have been legitimately appointed as national prosecutor, then all subsequent appointments or promotions of prosecutors – which are carried out on the recommendation of the national prosecutor – may also be regarded as illegitimate.

That may result in a situation in which many prosecutors are recognised as legitimate only by one side or the other in the dispute, similarly to what has happened with the court system, where the new government does not recognise the legitimacy of certain judges appointed under PiS.

A chamber of the Supreme Court has rejected an appeal by a convicted MP against the loss of his parliamentary mandate.

Another chamber of the same court last week made the opposite ruling on the same case, but today’s ruling declared that chamber unlawful https://t.co/EXxiQTRlcq

— Notes from Poland 🇵🇱 (@notesfrompoland) January 10, 2024

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Main image credit: Prokurator Krajowy (under CC BY-NC-ND 3.0 PL)

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.