DoRzeczy.pl: In your opinion, can the Prosecutor General Adam Bodnar dismiss the National Prosecutor, as he did on Friday?
Prof. Genovefa Grabowska: The law says otherwise. Omitting the role of the President in the appointment-dismissal process is a serious legal flaw that renders such activities ineffective.
Minister Bodnar points to the provision that a retired prosecutor cannot be a national prosecutor. How would you rate this argument?
These are detailed provisions that have already been widely analyzed by lawyers and the media. The Supreme Administrative Court also considered this issue, which assessed that these or similar situations extended the provision regarding the possibility of the retired prosecutor to return to work, and the prosecutor could use it. This is the decision of the Supreme Administrative Court. And this was not a temporary provision, because then it should have been clearly stated that after retirement, the prosecutor has only two months to decide to return to active duty. There is no such restriction in the regulations. And perhaps these are legal details that do not always absorb public opinion, but are of great importance to the legal order.
However, we know that the law cannot be “bent” in such a way as to attempt to justify the dismissal of a sitting National Prosecutor without the legally required opinion or consent of the President. And this is the most serious defect that violates this act. Also, it is impossible to appoint a new national prosecutor without the president, even by creating the position of “acting national prosecutor”, which does not exist in the law. Polish legislation does not provide for such a position. This situation needs to be explained and I think that the Prime Minister and the President met to find a solution that would appease public opinion and restore the law in the broadest sense of the justice system. At least I'd like to hope so.
Minister Bodnar said that he will present the assumptions of the project of separating the functions of the Minister of Justice and the Prosecutor General. Will this improve the situation?
If this is a statutory regulation, it will be a step in the right direction. Each body has the right to change the existing order and legal status, but it must do so in accordance with the current legislation, that is, the law can be replaced by a new law. Therefore, if the Minister of Justice wants to introduce a similar project by making changes to the current legislation, he can do so. However, the separation of the positions of the Minister of Justice and the Prosecutor General in Poland has a rather turbulent, though very short, history. The first and so far the only Prosecutor General, separate from the Minister of Justice, was Mr. Andrzej Seremet (2010-2016). However, due to the investigation, among others, in the Smolensk disaster, the Amber Gold scandal, or the so-called wiretapping scandal, it was decided that this structure did not work, and in 2016 the positions were reunited. Maybe it's finally time to sit down and think about how the Polish justice system should be organized and function. This applies to both the form of the prosecutor's office and the court, which is currently completely deregulated. However, citizens expect this from the court “Just judgments, Issued within a reasonable time.” And the Polish state has an obligation to provide this for us.
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(tags translated) Grabowska