Torpedoing the coup investigation

https://doi.org/10.63189/FKOE7236

On 31 January 2025, the President of the Constitutional Tribunal, Bogdan Święczkowski, submitted to the Deputy Public Prosecutor-General, Michał Ostrowski, a notification regarding a reasonable suspicion that the Prime Minister, ministers, the Marshal of the Sejm, the Marshal of the Senate, Sejm deputies and senators of the ruling coalition, the President of the Governmental Legislation Centre, certain judges and public prosecutors, as well as other persons, may have committed a criminal offence.

According to the notification, this offence comprised the facts that during the period from 13 December 2023 until the date of submission of the notification, the aforementioned persons acted as an organised criminal group in relatively short intervals, in Warsaw as well as in other locations in Poland, with the premeditated intention of changing the constitutional order of the Republic of Poland, and of eliminating – or ceasing the activity of – the Constitutional Tribunal, namely, a constitutional authority of the Republic of Poland, as well as other constitutional authorities, including the National Council of the Judiciary and the Supreme Court. In collusion with other persons, they undertook the activity aimed at achieving these purposes by force and by an unlawful threat of depriving the Constitutional Tribunal and other constitutional authorities, including the National Council of the Judiciary and the Supreme Court, of their ability to function.

The modus operandi of the perpetrators was, inter alia, to lead to:

– a situation wherein – derived from legal norms regulating the constitutional order – the systemic status of the Supreme Court’s Extraordinary Review and Public Affairs Chamber, the Supreme Court judges, and the legal force of rulings issued by the Supreme Court, in particular, by its Chamber of Extraordinary Review and Public Affairs, were undermined;

– a situation wherein the Government Legislation Centre ceased to publish rulings of the Constitutional Tribunal, thereby undermining the status of the judges of the Constitutional Tribunal, appointed by law;

– the adoption of the Resolution of the Sejm of the Polish Republic of 6 March 2024 on the elimination of the effects of the 2015–2023 constitutional crisis in the context of the activity of the Constitutional Tribunal^[1];

– the adoption by the Council of Ministers of Resolution No. 162 of 18 December 2024 on counteracting the negative effects of the constitutional crisis in the judicial system^[2];

– a situation wherein mandatory participants in proceedings before the Constitutional Tribunal ceased to provide their submissions and participate in hearings;

– a situation wherein judicial vacancies at the Constitutional Tribunal were not filled;

– the enactment of the Budget Act 2025^[3] that would deprive the Constitutional Tribunal of the funds for the remuneration of its judges;

– a situation where – derived from legal norms regulating the constitutional order – the systemic status of the National Council of the Judiciary, its members, and of judicial appointments made with the Council’s involvement, were undermined.

According to the complainant, this conduct constituted a criminal offence qualified under Article 127(1) and Article 128(1) and (3) of the Polish Criminal Code, in conjunction with Article 65 of the Criminal Code in  conjunction with Article 12 of the Criminal Code and Article 258(1) of the Criminal Code^[4].

By order of 5 February 2025, the Deputy Public Prosecutor-General, Michal Ostrowski, opened an investigation into the matter covered by the notice, expressly defining the scope as acts committed by the Prime  Minister – Donald Tusk, the Marshal of the Sejm – Szymon Hołownia, the Marshal of the Senate – Małgorzata Kidawa-Błońska, Minister of Justice - Public Prosecutor-General Adam Bodnar, the President of the Governmental Legislation Centre Joanna Knapińska and others^[5].

Prosecutor Michal Ostrowski began his investigation, including interrogating the President of the Constitutional Court, Bogdan Święczkowski, the First President of the Supreme Court, Małgorzata Manowska, and the President of the National Council of the Judiciary, Dagmara Pawełczyk-Woicka. He issued an order entrusting some of the investigative activities to the Internal Security Agency, and intended to conduct further interviews with witnesses and collect documents^[6].

On 10 February 2025, the Minister of Justice, Adam Bodnar, who is a subject of the investigation, appointed a Special Disciplinary Prosecutor of the Minister of Justice^[7] to investigate a case of manifest and serious misconduct by a prosecutor of the National Prosecutor's Office, Michał Ostrowski, that is, a disciplinary offence.

The infringement of the law consisted, inter alia, the initiation and conduct of investigations without registration in the prosecutor's registration system with the intentional use of the powers provided for in Article 3 § 1 item 1 of the Law on the Public Prosecutor's Office in violation of the principles of objectivity and impartiality, and in addition, by taking procedural measures in the interests of a certain group of persons who are liable for violating the rules of a democratic constitutional state, in disregard of official pragmatics and the provisions of universally applicable law, including those relating to the nature and scope of the office of the National Public Prosecutor.

In addition to this, on 10 February 2025, Adam Bodnar, exercising his powers as Prosecutor General, decided to suspend the Deputy Public Prosecutor-General of the National Prosecutor's Office, prosecutor Michał Ostrowski, from his official duties for a period of 6 months, until 10 August 2025^[8].

He based his decision on the actions of the public prosecutor Ostrowski and the circumstances surrounding them, which clearly indicated ‘a lack of respect for the basic principles of the functioning of the prosecutor's office and emanate from the perception of this institution as a body involved in the protection of particularistic political interests’^[9].

This presents an unprecedented situation wherein a person under investigation is taking steps to prevent a legitimate prosecutor from conducting an investigation. The institution of suspension of a prosecutor has been used as an instrument. Suspension should be used when there is a genuine and justified suspicion that the prosecutor has committed the most serious crimes. The purpose of this institution is to protect the authority of the Public Prosecutor's Office and the public interest by preventing any negative consequences that might arise from its continuation.

In the situation described, it is clear that the suspension of Michał Ostrowski was aimed solely at torpedoing the investigation involving the most important people in the state, including the Minister of Justice – Public Prosecutor-General Adam Bodnar himself, who enforced the suspension.

In a statement dated 11 February 2025, the President of the Constitutional Tribunal stated that he had welcomed the decision to suspend Prosecutor Michał Ostrowski with indignation and disbelief, and considered it unlawful. He stated that the suspension was “a confirmation of the implementation in the Republic of Poland of actions that have the character of a systemic coup d'état against the Constitutional Tribunal, the Supreme Court, the common courts, the National Council of the Judiciary, the Public Prosecutor's Office, the public media and the National Electoral Commission’^[10].

According to the Ordo Iuris Institute for Legal Culture, “there is a real danger of a white-glove dictatorship, wherein liberal-left politicians will decide everything, including the outcome of the forthcoming presidential elections, which could be the last obstacle before the authoritarian system that threatens Poland is finally closed and it becomes possible to pardon those guilty of carrying out the coup”. The suspension of Prosecutor Ostrowski is aimed solely at obstructing this investigation and preventing the perpetrators of the coup from being held criminally responsible. It is not only an unprecedented attack on the independence of the prosecutor's office but a step towards a total takeover of power in Poland, ‘trampling on democracy and the foundations of the rule of law’^[11].

^[1] Monitor Polski, M. P. of 2024, item 198.

^[2] Monitor Polski, M. P. of 2024, item 1068.

^[3] The Budget Act 2025 of 9 January 2025 (Official Gazette, item 63).

^[4]  Trybunał Konstytucyjny: Oświadczenie Prezesa Trybunału Konstytucyjnego Bogdana Święczkowskiego dot. zawieszenia Prokuratora Michała Ostrowskiego [Statement of the President of the Constitutional Tribunal, Bogdan Święczkowski, regarding the suspension of Prosecutor Michał Ostrowski].

^[5] Ibidem.

^[6] Prokurator Ostrowski już działa ws. zamachu stanu: pierwsi świadkowie i wniosek do ABW! | Niezalezna.pl [Prosecutor Ostrowski already taking action regarding the coup attempt: first witnesses and a request to the Internal Security Agency!].

^[7] Pursuant to Article 153a § 1 of the Act of 28 January 2016. Law on the Public Prosecutor's Office.

^[8] Pursuant to Article 144 and Article 150 § 1 and 2 of the Act of 28 January 2016. - Prosecution Law.

^[9] Powołanie Rzecznika Dyscyplinarnego MS i zawieszenie ZPG Michała Ostrowskiego - Prokuratura Krajowa - Portal Gov.pl [Appointment of the Disciplinary Officer of the Ministry of Justice and suspension of Deputy Prosecutor General Michał Ostrowski – National Public Prosecutor’s Office].

^[10] Trybunał Konstytucyjny: Oświadczenie Prezesa Trybunału Konstytucyjnego Bogdana Święczkowskiego dot. zawieszenia Prokuratora Michała Ostrowskiego [Constitutional Tribunal: Statement by the President of the Constitutional Tribunal, Bogdan Święczkowski, regarding the suspension of Prosecutor Michał Ostrowski].

^[11] Zamach stanu Tuska. Apel w sprawie śledztwa - Obserwator Praworządności [Tusk’s coup d’état. Appeal concerning the investigation – Rule of Law Observer].