Limitation to two months for the exercise of a retired public prosecutor’s right to return to active service upon his/her request SK 13/24
On 22 November 2024, the Constitutional Tribunal considered Mr D.B.’s constitutional complaint pertaining to the limited period of two months for the exercise of a retired public prosecutor’s right to return to active service upon his/her request.
The Constitutional Tribunal adjudicated that Article 47(1) and (2) of the Act of 28 January 2016 – the Introductory Provisions to the Public Prosecution Service Act (Journal of Laws – Dz. U., item 178) in conjunction with Article 19(3) of the Act of 9 October 2009 amending the Public Prosecution Service Act and certain other acts (Journal of Laws – Dz. U. No. 178, item 1375) – construed in the way that a public prosecutor who remains retired on the day of the entry into force of the Act of 28 January 2016 – the Introductory Provisions to the Public Prosecution Service Act may, upon his/her request, return to active service in the last-held position, or an equivalent one, only within the period of two months from the entry into force of the said Act, i.e. within the period from 4 March 2016 until 4 May 2016 – in inconsistent with Article 60 in conjunction with Article 31(3) of the Constitution of the Republic of Poland.
The ruling was adopted by a majority vote.
The Constitutional Tribunal deemed that the introduction of the two-month limitation period for the return of a retired public prosecutor to active service had not been enacted in Article 47(1) and (2) of the Introductory Provisions to the Public Prosecution Service Act. The said limitation arises from an erroneous and law-making interpretation of the law by the Public Prosecutor-General. Paragraphs (1) and (2) of Article 47 of the Introductory Provisions to the Public Prosecution Service Act contain no temporal limitation. The law-making interpretation by the Public Prosecutor-General has led to the erroneous interpretation of Article 47(1) and (2) of the Introductory Provisions to the Public Prosecution Service Act. The violation consists in having created the limitation that does not arise from the relevant provision. The above has resulted in limiting the complainant’s possibility of exercising the right of access to the public service.
The adjudicating bench of the Constitutional Tribunal in the case was composed of: Judge Krystyna Pawłowicz – Presiding Judge; Judge Stanisław Piotrowicz – Judge Rapporteur; Judge Zbigniew Jędrzejewski; the President of the Constitutional Tribunal, Judge Julia Przyłębska; and Judge Bartłomiej Sochański.