It is too early to confirm the rumours of the Supreme Court's death. Yet, civic society, NGOs, media and citizens should be watching the next developments very carefully.
At the beginning of the twenty-first century, the Polish Supreme Court has given inspiration to at least a few lasting portrayals in the perception of the public. Remember the mass protests around the building in July 2017, or the “chains of light” during that same summer.
Perhaps it was the President of the Court, Judge Małgorzata Gersdorf, arriving at work on 4 July 2018.
Everything is accelerating today, so in the four months of 2020, between 23 January and 23 May 2020, we were able to see at least two more, extremely symbolic paintings: a collective portrait of the judges of the Polish Supreme Court and an interior image of the judicial family.
Photograph of the righteous ones
On 23 January 2020, in an unusual, combined composition of three chambers, the Supreme Court adopted an important resolution. The Court resolved the legal and controversial question presented to the body, concerning the casting of courts and the appointment of judges.
It should be recalled that in its ruling of 19 November 2019, the European Court of Justice had not yet adopted a decision on the application of the rules of procedure.
The Court in Luxembourg indicated that the established Disciplinary Chamber is not a court for the purposes of European Union law and that the procedure for the appointment of the members of the National Council of the Judiciary (NCJ) as well as, the shortening of the term of office of its existing members and the election of further members, raised serious doubts.
Expectations of the national interpretation of the ECJ’s judgment, which was to be given by the Supreme Court in January 2020, broadly varied. From recognising that judges of the Disciplinary Chamber and other nominees of the new NCJ should be completely disqualified from rulings ranging to a limitation of their powers or the assumption that everything is to remain the same.
On 23 January 2020, the Supreme Court in its composition of three traditional chambers (civil, criminal and labour and social security) assumed that the appointments of judges participating in the procedure before the NCJ may be flawed and their judgments might be challenged. It was another blow to the highly unstable Polish justice system. Again, to the detriment of citizens and society.
After the ruling was announced, 59 righteous ones in robes allowed themselves to be photographed. The birettas lie on the table in front of each of them. In the middle of the picture, we see Małgorzata Gersdorf, the chairman of the meeting. On her left, one of the two rapporteurs of the resolution, a judge of the Criminal Chamber and a professor of the oldest Polish university, Włodzimierz Wróbel. A portrait of judges, but not a picture of the interior of justice.
Both the collective portrait and the resolution the Judges Kamil Zaradkiewicz, Małgorzata Manowska and Aleksander Stępkowski. did not take part. They were appointed in the new procedure to which the court’s resolution related. However, they were still to be found in the portrait gallery of Polish judges.
Tasked to elect another president
After the end of the term of office of the First President of the Supreme Court, Małgorzata Gersdorf the President of the Republic of Poland appointed… someone. She appointed a person to a previously unknown position. Temporary, makeshift. Here appeared in the Supreme Court a type of CEO, appointed by the executive.
Kamil Zaradkiewicz was appointed as the acting president. He is an academic and a specialist in civil law, who, however, had not issued any judgments before. This was even noticed at a meeting of the National Council of Judiciary. However, this did not prevent him from becoming a judge or manager of the highest court of the republic.
The main task of Kamil Zaradkiewicz was to elect another president of the Supreme Court. The electoral assembly of judges was not convened by President Gersdorf, due to the prevailing coronavirus pandemic. She decided that she could not endanger the life and health of judges, and remote proceedings were not provided for by law.
Her temporary successor had no such doubts or concerns. He called a meeting of judges, provided masks, visors and disposable pens. Each chamber gathered in a different courtroom with an internet connection to the others. And the assembly moved on.
Earlier, Zaradkiewicz’s first decision was to remove from the gallery in the court building the portraits of its presidents from 1945-1989. He decided that the court was not independent of political power at that time. “Visual decommunisation” was carried out with the applause of the right-wing media. The argument about communists in the SN has accompanied the ruling party since they won the elections in 2015. It was the time to close the circle.
The course of the assembly and the way the proceedings were conducted as well as the tensions prevailing in the court probably makes excellent material for scientists. Not only lawyers and historians but psychologists as well. The assembly was held in a nervous atmosphere, the first days were devoted to the proceedings themselves. Very legal.
After three days, Kamil Zaradkiewicz asked Polish President Andrzej Duda to change the rules of the proceedings, which would allow for a more efficient election of the president. The President refused. The next day Zaradkiewicz resigned.
Christian values in the Constitution
In his place, President Duda immediately appointed a member of the board of conservative think-tank Ordo Iuris. He is the author of one chapter in the publication Dictatorship of Gender, which he shares with Benedict XVI; the Polish archbishop calling for a stronger reflection of Christian values in the Constitution of the Republic of Poland or a priest comparing gender ideology to Nazi propaganda.
Aleksander Stępkowski, a judge appointed by the new NCJ, of course, took charge of the proceedings.
Stępkowski is also involved in a case pending in the Court in Luxembourg, which is to decide whether he has effectively acquired the status of a Supreme Court judge. Such trifles turn out to be irrelevant. Let me remind you, these are the most important functions in the most important court in Poland.
The aforementioned resolution of the three chambers of the Court, barely four months earlier, was co-presided by Judge Włodzimierz Wróbel. He is one of the most recognised specialists in criminal law in Poland, a lecturer, the author of textbooks and a proficient expert.
During the historical assembly, Wróbel was one of the candidates for the new president of the Supreme Court. He was a candidate of the previous (‘old’) judges. When it came to ‘sabre counting’ he received the support of 50 judges out of 95 taking part in the vote. He won the elections by collecting more votes than the other four candidates together.
A moment after the vote and the end of the meeting, the majority of (supreme court) judges lined up for a second photo. This time in the court hall, in masks and at the prescribed distance. Another picture to the historical gallery. The judges declared their full support to Professor Włodzimierz Wróbel’s candidacy. He won twice as many votes as Professor Małgorzata Manowska, the second on the list.
Małgorzata Manowska was appointed to the Supreme Court in 2018. Before that, she had been the undersecretary of state in the Ministry of Justice for several months in 2007. At that time, as today, Zbigniew Ziobro was the Minister of Justice. In the ministry building, in another cabinet of the undersecretary of state, there also was a 35 years’ old Law and Justice activist: Andrzej Duda.
The Constitution of the Republic of Poland, in Article 183, paragraph 3, allows the president of Poland to elect the first president of the Supreme Court from among the candidates presented by the General Assembly. Should we be surprised by the choice made by Andrzej Duda?
By the decision of 25 May 2020, Małgorzata Manowska became the First President of the Supreme Court. A few days later she appointed a court spokesperson. The Supreme Court will speak and function in public sphere through… Aleksander Stępkowski.
A good lawyer, just like a scientist, can be identified by his doubts. The rumours of the Supreme Court’s death, as well as that of Mark Twain’s death, may well be exaggerated for the time being.
Too early to answer
This is the fresh verdict of 27 May 2020. The Supreme Court in the ‘new’ Chamber of Extraordinary Control and Public Affairs ruled that the resolution of the National Council of the Judiciary presenting one of its members for promotion is simply flawed.
And in the justification, the judges appointed by this NCJ wrote, among others: “it follows from the CJEU judgment of 19 November 2019 that the Supreme Court is the direct addressee of the duties specified therein. The Supreme Court, when considering appeals against NCJ resolutions, should ensure the effective implementation of constitutional requirements and EU law.”
Gamechanger? New opening? It is too early to answer. Maybe it is just time to remind ourselves of the necessary political foundations of a member state of the European Union: the independence of courts, the independence of judges and the rule of law.
The building of the Supreme Court in Warsaw is decorated with 86 Latin sentences, most of which come from Roman law. Among them, there is also a sentence and a warning decorating the former tribunals walls in Poland: “iustitias vestras iudicabo” (I will judge your justice).
It is a task for now, for each of us. We (the civic society, NGOs, media and citizens) will be watching the court. Carefully.
This article is part of the #DemocraCE project.