“An extraordinary and constitutionally as well as procedurally distorted form of operation of the prosecution service, contrary to the principles of the rule of law, which it is supposed to uphold”

This is how the court assessed the current functioning of the prosecution service. The Niezalezna.pl portal obtained the content of the document. While it concerns a decision in a specific investigation, it was stressed that the consequences could be disastrous for the functioning of the prosecution service nationwide.

“Such a situation, in the court’s opinion, is from the perspective of protecting constitutional rights and freedoms, grossly unacceptable”

Investigation into Pegasus

Since March 2024, an investigation has been underway into the “abuse of powers and failure to perform duties by public officials (…) during the use, as part of operational and reconnaissance activities, of software known as PEGASUS“.

In the National Prosecutor’s Office (PK), an investigative team No. 3 was appointed, headed by Prosecutor Jacek Gacek. The proceedings were extended several times by decision of Prosecutor Dariusz Korneluk, currently managing the PK.

Overturned Prosecution Decisions

On 3 June this year, Jarosław W., former head of the Warsaw delegation of the Central Anti-Corruption Bureau (CBA), was detained and forcibly brought in.
Charges were presented, and at the end, liberty-restricting preventive measures were applied:

• police supervision
• ban on leaving the country
• passport seizure

W.’s defence counsel appealed, and the case went to the District Court for Warsaw-Mokotów.
On 28 July (XIV Kp 1878/25), Judge Jakub Iwaniec ruled in favour of the complaints, overturning the prosecution’s decisions. The court found the detention unlawful and unfounded, and the preventive measures illegal.

Freedom – An Extraordinary Good

The court explained why it examined the complaint without the participation of the parties:

“(…) a thorough assessment of the circumstances of the prosecutors’ authorisation in the ongoing investigation leads to the unequivocal conclusion of the illegality and ineffectiveness of the key procedural decisions taken in it, particularly those involving violations of constitutional freedoms, primarily citizens’ freedoms, in the form of deprivation of liberty”

And further:

“The court was faced with the necessity of weighing two legal goods: the freedom of a person who was deprived of it as a result of ineffective personnel acts at the highest level of the prosecution service, and the right to ensure the parties’ participation in procedural activities. The court sided with human freedom, hence it found that the efficient examination of the complaint, even without the participation of the parties, would allow a ruling to be issued without further harm to the cardinal freedoms and rights of citizens, arising directly from the Constitution of the Republic of Poland and the European Convention on Human Rights“

Bodnar’s Ruse

The court recalled events of 12 January 2024, when the National Prosecutor’s Office was taken over.

First, Prosecutor General Adam Bodnar asked National Prosecutor Dariusz Barski to appoint Jacek Bilewicz as a PK prosecutor – allegedly for Poland’s accession to the European Public Prosecutor’s Office.

Barski agreed, unaware it was a pretext. Later that day, Bodnar questioned Barski’s return to active service, and Prime Minister Donald Tusk appointed Bilewicz as “acting National Prosecutor” – a position not existing in Polish law – without the President’s consent.

“The appointment of Jacek Bilewicz, in the court’s opinion, was illegal, and the actions taken by Jacek Bilewicz largely ineffective”

This triggered a domino effect. Bilewicz began making decisions (including personnel ones) that impacted units nationwide.

“Similarly, the ‘appointment’ of Dariusz Korneluk as ‘National Prosecutor’ should be assessed”

the courst stated, emphasising that Barski still holds that office –

“except that he cannot effectively perform it due to the factual, unlawful deprivation of his powers”

The Supreme Court resolution of 27 September 2024 (I KZP 3/24) confirmed that the National Prosecutor is Dariusz Barski.

“Non-National Prosecutor”

In W.’s case, Korneluk is described as the “non-National Prosecutor”, and his extensions of the investigation were deemed “illegal and without legal effect”.

“Which means that de facto and de jure the investigative activities ended on 12 June 2024. This entails far-reaching procedural consequences, as two people were detained in the case, violating their constitutional rights and freedoms, who were then unjustifiably charged and subjected to illegal coercive procedural measures”

All Decisions Open to Challenge?!

The court found Korneluk’s and Bilewicz’s decisions – including prosecutor delegations – ineffective:

“(…) they were not delegated to the National Prosecutor’s Office by National Prosecutor Dariusz Barski. They were delegated by one of the two aforementioned prosecutors (Bilewicz, Korneluk) who, in fact and contrary to the law, took over and exercised the powers of the National Prosecutor”

This could affect detentions, searches, and charges across the country.

“These prosecutors undertook de facto procedural activities in this unit, which constitutes an extraordinary and constitutionally as well as procedurally distorted form of operation of the prosecution service, contrary to the principles of the rule of law, which it is supposed to uphold”

The fallout could reach beyond this case, including regional and district prosecutor appointments – creating a colossal mess.

Hunting for Dirt?

The court also noted that telecommunications data on W. was requested beyond the period covered by the charges:

“It is therefore hard to avoid the impression that under the guise of one case, the bodies carrying out all these activities, including prosecutors, were attempting to look for a foothold and any evidence that could incriminate Jarosław W. in the future, relating to his current life and activities”

Emphasising:

“Such a situation, in the court’s opinion, is from the perspective of protecting constitutional rights and freedoms, grossly unacceptable”