Minister of Justice Adam Bodnar dismissed the National Prosecutor Dariusz Barski, stating that his appointment in 2022 was “illegal”. According to a legal analysis of Ordo Iuris, Adam Bodnar broke the law.

Adam Bodnar felt that bringing Dariusz Barski back to active service on 16 February 2022 had no legal effect due to the fact that he was inactive a retired prosecutor. For this reason, he dismissed him.

According to the Law on the Public Prosecutor's Office, the fresh Minister of Justice could not take specified a step, due to the fact that until the National Prosecutor is dismissed, the written consent of the president of Poland is needed (Article 14 par. 1). In addition, the national prosecutor may return to service at his request.

A prosecutor remaining on the date of entry into force of this Act at remainder may return to service at his request for his last post or equivalent position. This right does not apply to prosecutors who have retired for wellness reasons – Article 47. § 1.

The narration in Adam Bodnar's communicative relates to this passage in which he writes:

As a legal basis, the provisions of Article 47(1) and (2) of the Public Prosecutor's Office were of a temporary and temporary nature and contained in the Act introducing fresh rules on prosecution. In fact, this provision allowed to benefit from its benefits only within 2 months of its entry into force in 2016, precisely only from 4 March 2016 to 4 May 2016, the head of MS stated.

And that is evidently not true. Article 47 was not only in force at the time of Zbigniew Ziobro's decision but inactive in force. In fact, any of the provisions supply for a period of validity or give any authorities the right to exercise their powers (e.g. Article 53, par. 1). However, that is not the case in Article 47.

This was confirmed by the ultimate Administrative Court ruling of 22 March 2023.

Supreme Administrative Court in the explanatory memorandum of 24 September 2019. I OSK 2234/17 correctly indicated that Article 1 of the Act introduced the Act – Law on Public Prosecutor's Office sets the date of entry into force of the Act – Law on Public Prosecutor's Office. The subsequent provisions, up to Article 25, made changes (either by modifying the erstwhile wording or by repealing) of the individual rules of a number of legal acts, not necessarily related to the Law on the Prosecutor’s Office. Starting with Article 25 of the abovementioned Act, the provisions relate strictly to the situation of prosecutors and prosecutors. These provisions are not, to a large extent, transitional provisions. Where specified a provision is intended to serve, the legislator shall clearly indicate this by utilizing the word ‘to day’, ‘to day’, ‘to time’. In another cases, the rules are of a systemic nature, creating certain entities, defining their organisational structure, the scope of the action – we read in the explanatory memorandum.

Legal chaos

Adam Bodnar's decision to declare the appointment of the National lawyer Darius Barski illegal carries a number of dangerous consequences. This means, among another things, that all cases dealt with by the National Prosecutor's Office during its 2 years of operation are invalid. In turn, the fresh prosecutor Adam Bodnar was called against the law, which means that for this minute Poland has no functioning National Prosecutor.

The civilian Coalition wants to regulation as hard as the Law and Justice, but does not have the same democratic mandate. They have parliament, but they don't have a president. Hence the aversion to statutory changes that affect the hazard of veto. Instead, they break the law in the hope that any court will support their actions.

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