“These are the cases of the prosecutor's office in relation to media companies, which is confirmed not only by the current Deputy Minister of Justice Arkadiusz Mircea, but also by MP Kamila Gasiuk-Pihović and editor Renata Grochal,” we read in the text published on the Institute's website. .
“According to the media, the Minister of Justice – the Prosecutor General was wanted according to Article 9, Clause 2 of the Law of January 28, 2016 – “On Public Prosecutor's Office”. to take the case by other prosecutors regarding legally dubious “media” resolutions. In this case, the prosecutors could take actions aimed at, for example, the court declaring the decisions of Bartlomiej Sienkiewicz invalid,” it is noted.
“However, this type of action had very far-reaching consequences for the minister, which, in my opinion, he could not have foreseen. And this consequence is the loss of his powers as a senator of the Republic of Poland,” read the analysis.
It is also noted that “according to Article 9, Clause 2 of the Law on Population, the superior prosecutor can take over the cases carried out by the subordinate prosecutors and carry out their activities.” This type of regulation gives the right to take over cases that are proceeding in the lower ring prosecutor's office. At work (e.g., a homicide case involves caseloads from District Attorney's Office to District Attorney's Office).
However, what the “regular” prosecutor is allowed to do, the MS-PG is not allowed, because as an active politician, he has very limited powers under the law (there is no reason why the national prosecutor works with the PG. ).
Opinions confirm Bodnar's situation
Lex Super Omnia then quoted the opinion of the Association of Prosecutors, which in a July 13, 2023 opinion on the bill (Senate Form 1039) shared this position: “Therefore, the provision of proposed Article 13a. The prosecution, which excludes the possibility of using the principle of substitution by the Prosecutor General, is incorrect, because the Prosecutor General, not being a superior prosecutor, cannot take over cases and tasks under Article 9, Clause 2 of the Proc.
A similar opinion was presented by an expert on this issue, prosecutor Dr. Piotr Turek: “Procedural rights of PG and other prosecutors are separate, and it cannot be concluded from Article 3, Clause 1 of the Prosecutor's Law that PG could. Exercises the powers that, according to specific laws, belong to the competence of the prosecutor, for example, conducting an investigation and vice versa.
“If Adam Bodbnary wanted to play the role of a prosecutor and take the case, unfortunately, he stopped being a senator… According to Article 103, Part 2, in connection with Article 108 of the Constitution of the Republic of Poland, the office of a prosecutor and a senator or deputy cannot be combined” – Ordo Juris indicates.
It is interesting that this position was presented in the past by MP Kamila Gasiuk-Pihovic: “Separation of the roles of MP (here, senator) and prosecutor is intended to protect the prosecutor's office from politicization. We know that now, under the omnipotence of PiS, these are not enough actions, but “this does not mean that we can tolerate the violation of the provisions of the constitution by the most important people in the state.”
Deputy Arkadiusz Mircea responded to him: “The Law on the Prosecutor's Office, which was adopted by PiS, gives previously unknown powers to the Prosecutor General, who actually became a prosecutor within the framework of the functioning of the Polish Prosecutor's Office. Office (…) This only confirms that the performance of the PG function is not “of an unusual nature, as it was known in the history of the Polish system”.
“Minister A. “Bodnar can save the mandate of the senator by resigning from the post of MS-PG,” concludes the analysis.
Also read:
Romanovsky: Either Bodnar broke the law or his mandate should be terminated
(tags translate)ordo iuris