2026, Volume 1, Issue (I/2026)
Between legalism and trust – the question of the effectiveness of the actions of the National Prosecutor appointed incorrectly
Marcin Wielec1
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1Cardinal Stefan Wyszyński University in Warsaw
Streszczenie
The article analyses the legal consequences of the rulings of the Supreme Court (resolution of 27.09.2024, I KZP 3/24) and the Constitutional Tribunal (judgment of 22.11.2024, SK 13/24) in the context of the appointment of the National Prosecutor. The main problem is the assessment of the effectiveness of the actions taken by the person performing the function of the National Prosecutor, if his appointment was ineffective. It seems that the lack of an effective appointment causes the ineffectiveness of the independent and imperious actions of this person (the principle of legalism – Article 7 of the Constitution of the Republic of Poland). However, the procedural actions of lower-level prosecutors appointed by the Prosecutor General remain, in principle, effective in protecting the stability of the system and the trust of citizens. The decision was inspired by the French theory of fonctionnaire de fait, which protects legal certainty against a defectively empowered authority.
Słowa kluczowe
Prokurator Krajowy, skuteczność czynności procesowych, zasada legalizmu, zasada zaufania do państwa i prawa, fonctionnaire de fait, Sąd Najwyższy, Trybunał Konstytucyjny
Między legalizmem a zaufaniem – kwestia skuteczności działań Prokuratora Krajowego powołanego niezgodnie z prawem
Summary
The article analyses the legal consequences of the rulings of the Supreme Court (resolution of 27.09.2024, I KZP 3/24) and the Constitutional Tribunal (judgment of 22.11.2024, SK 13/24) in the context of the appointment of the National Prosecutor. The main problem is the assessment of the effectiveness of the actions taken by the person performing the function of the National Prosecutor, if his appointment was ineffective. It seems that the lack of an effective appointment causes the ineffectiveness of the independent and imperious actions of this person (the principle of legalism – Article 7 of the Constitution of the Republic of Poland). However, the procedural actions of lower-level prosecutors appointed by the Prosecutor General remain, in principle, effective in protecting the stability of the system and the trust of citizens. The decision was inspired by the French theory of fonctionnaire de fait, which protects legal certainty against a defectively empowered authority.
Keywords
National Prosecutor, effectiveness of procedural actions, principle of legality, principle of trust in the state and law, fonctionnaire de fait, Supreme Court, Constitutional Tribunal