30 legal judges of the Supreme Court refuse to adjudicate with neo-judges: We want to faithfully serve Poland
The declaration of the 30 judges of the Supreme Court is a strong message addressed to all judges in Poland. The judges of the Supreme Court show that the judgments of the CJEU and the ECtHR and the historic resolution of the full panel of the Supreme Court that challenged the neo-NCJ and the neo-judges it nominated should be implemented.
The declaration was submitted on Monday 17 October 2022 to Malgorzata Manowska, who is a neo-judge in the position of First President of the Supreme Court.
It was signed by 30 legal judges of the Supreme Court from the Civil Chamber, the Criminal Chamber and the Labour and Social Insurance Chamber. It was signed by such judges as the president of the Criminal Chamber, Michał Laskowski, the president of the Labour Chamber, Piotr Prusinowski, Professor Włodzimierz Wróbel, and the former president of the Civil Chamber, Dariusz Zawistowski.
In the declaration – we have posted it in full, together with their signatures below in the article – the judges explain why they cannot adjudicate in panels with neo-judges of the Supreme Court, namely people nominated by the illegal, politicized National Council of the Judiciary. They cite numerous judgments of the CJEU, the ECtHR, but also the Polish Supreme Administrative Court and the Supreme Court. These rulings challenged the legality of the neo-NCJ and the appointments it had given to neo-judges. They challenged them because this body is not independent of politicians, nor is it compliant with the Constitution.
The judges emphasize that they cannot adjudicate with neo-judges, because a ruling given by such a panel will be defective. So it will be possible to overturn it and the State Treasury will have to pay compensation to the parties to the proceedings for that. They wrote in the declaration: ‘A judge cannot participate in proceedings and rulings if it is known in advance that this will constitute unconditional grounds for filing an appeal or lead to the invalidity of the proceedings.
In such a situation, it is inadmissible to start to handle proceedings and issue rulings. It cannot be acknowledged that proceedings are subject to a qualified procedural defect while simultaneously announcing that the judge is obliged to knowingly take part in this defective procedure. Conformism is not inherent in the ethos of the judicial service.’
In the declaration, the judges emphasize: ‘Given the rationale presented, we declare that we do not see any possibility of adjudicating together with people appointed in a defective procedure. A judge cannot knowingly breach the right of the citizens to a trial and expose the State of Poland to the obligation to pay high levels of compensation. Conduct to the contrary is in conflict with the duty to “faithfully serve the Republic of Poland” and “uphold the law and the rule of law”, as referred to in the judicial oath.’
The legal judges of the Supreme Court write on in the declaration that the presidential amendment to the Act on the Supreme Court of 2022 – which liquidates the illegal Disciplinary Chamber and establishes the Chamber of Professional Liability in its place – has not solved the problem of neo-judges and the neo-NCJ.
This is another strong message from the legal Supreme Court regarding neo-judges. OKO.press revealed that Judge Krzysztof Staryk from the Labour Chamber has refused to adjudicate in the new Chamber of Professional Liability of the Supreme Court. Staryk does not want to adjudicate there because the judges were nominated to the chamber by politicians – the president and the prime minister. It also contains neo-judges of the Supreme Court.
Supreme Court Judges: We want to calmly look at ourselves in the mirror
The declaration of 30 legal Supreme Court judges is a message from the most important court in Poland, which was awaited by judges of the ordinary courts, who have been suspended and are being repressed through disciplinary or official means (they are transferred to other divisions in the court on disciplinary charges) for refusing to adjudicate with neo-judges, or for challenging their legality – based on the judgments of the ECtHR, the CJEU, but also the Supreme Court.
Judges Waldemar Żurek, Piotr Gąciarek, Paweł Juszczyszyn, Agnieszka Niklas-Bibik, Marzanna Piekarska-Drążek and Adam Synakiewicz and further independent judges were among those who encountered this. The declaration of the Supreme Court judges is a support for them and encourages other judges to apply EU law.
The president of the Criminal Chamber of the Supreme Court, Michał Laskowski, one of the signatories of the declaration, tells OKO.press: ‘Why did we issue such a declaration? We sent the president of the Supreme Court a formal letter earlier asking her not to appoint mixed panels [legal judges with neo-judges – ed.], because this started to happen in the Civil Chamber [it is headed by Neo-Judge Joanna Misztal-Konecka – ed.]. Then, we raised this at a board meeting of the Supreme Court. And there was no answer and no response, and mixed panels are also appointed in the tests of the independence of judges [these were introduced by the last amendment to the Act on the Supreme Court – ed.]. We also appealed to the court president to take legislative action. That is why we decided to sign this declaration.’
President Laskowski emphasises: ‘This is not a refusal to administer justice, because we want to administer justice and we do so. However, we just want to do this in accordance with the constitutional rules, namely with a correct panel of judges, which is important for the parties to the proceedings. We have to behave decently and not agree with what has been happening for several years with the rule of law. We appealed for statutory changes, we approached the authorities and this brought no effect, despite the rulings of the European Courts.’
And another of Supreme Court Judge Laskowski’s statements:
‘We want to calmly look at ourselves in the mirror. That is why we decided on this solution.’ We don’t want to be indifferent, turn our heads away and pretend that there is no problem by escaping into formalisms. Because disciplinary and official proceedings are being initiated against judges of the ordinary courts for such an attitude.’
Piotr Prusinowski, president of the Labour and Social Insurance Chamber, believes the same. He tells OKO.press: ‘We don’t intend to participate in sittings with judges appointed on the basis of the amended [by PiS – ed.] Act on the NCJ. Our move is determined by several factors. Firstly, the current authorities of the Supreme Court have stepped up the appointment of joint panels, despite our suggestions that it is not a good move. The second reason is the introduction of the presidential test, which generates the drawing of joint panels. So far, none of these tests [of judicial independence and impartiality – ed.] have been examined, precisely because the old judges do not intend to expose the State Treasury to losses because of compensation for defective rulings.’
Prusinowski goes on to tell OKO.press: ‘We want to send a clear signal to the ordinary courts that we do not agree to issue rulings that are invalid in advance. Our declaration is made in the spirit of the ECtHR and CJEU rulings. But also the resolution of the three Chambers of the Supreme Court of January 2020 [the judges of the three combined Chambers of the Supreme Court are pictured at the top – ed.]. It is still binding on all of us. It has the force of a legal principle. If I were ruling with a neo-judge I would oppose this resolution and commit a disciplinary delict.’
Declaration of 30 judges of the Supreme Court
Full text of the declaration of 30 judges of the Supreme Court:
‘First President of the Supreme Court
We declare that there are fundamental legal obstacles preventing our participation in the examination of cases with the involvement of people appointed to the Supreme Court on the basis of a motion of the National Council of the Judiciary established with the membership and in the procedure provided for by the Act amending the Act on the National Council of the Judiciary and certain other acts of 8 December 2017 (Journal of Laws 2018, item 3).
In the resolution of the full panel of the Supreme Court – the Civil, Criminal, Labour and Social Insurance Chambers – of 23 January 2020, BSA I-4110-1/20 (OSNKW 2000 no. 2, item 1 and OSNC 2020 no. 4, item 34), it was established that, in each case, the involvement of such a person in a Supreme Court panel leads to the incorrect staffing of the court in the meaning of Article 439 § 1 item 2 of the Criminal Procedures Code or the conflict of the membership of that court with the provisions of the law in the meaning of Article 379 item 4 of the Civil Procedures Code.
This resolution has the force of a legal principle, which is binding on every judge of the Supreme Court. A judge cannot participate in proceedings and rulings if it is known in advance that this will constitute unconditional grounds for filing an appeal or lead to the invalidity of the proceedings. In such a situation, it is inadmissible to start to handle proceedings and issue rulings. It cannot be acknowledged that proceedings are subject to a qualified procedural defect while simultaneously announcing that the judge is obliged to knowingly take part in this defective procedure.
Conformism is not inherent in the ethos of the judicial service.’
Furthermore, in the established and uniform case law of the European Court of Human Rights (for example, judgments of the ECtHR: of 22 July 2021, Reczkowicz v. Poland, no. 43447/19; of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland, nos. 49868/19 and 57511/19; of 3 February 2022, Advance Pharma sp. z o.o. v. Poland, application no. 1469/20), it was prejudged that adjudication by people appointed to the Supreme Court on the basis of a motion of the National Council of the Judiciary established with the membership and in the procedure provided for by the Act of 8 December 2017 constitutes a breach of the right to a trial expressed in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, drawn up in Rome on 4 November 1950, as amended by Protocols Nos. 3, 5 and 8 and supplemented by Protocol No. 2 (Journal of Laws of 1993, No. 61, item 284).
The consequence of this breach is compensation awarded against the Republic of Poland. Judicial decisions issued with the participation of a defectively appointed judge breach the right to a trial guaranteed by Article 45(1) of the Constitution of the Republic of Poland, the second paragraph of Article 19(1) of the Treaty on European Union, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the Convention on Human Rights (judgment of the Grand Chamber of the ECtHR of 1 December 2020, application no. 26374/18, Gudmundur Andri Astradsson v. Iceland; judgment of the Grand Chamber of the Court of Justice of the EU of 19 November 2019 in Joined Cases C-585/18, C-624/18 and C-625/18, A.K. v. National Council of the Judiciary and C.P. and D.O. v. Supreme Court, EU:C:2019:982; judgment of the Grand Chamber of the Court of Justice of the EU of 2 March 2021 in case C-824/18, A.B., C.D., E.F., G.H. and I.J. v. National Council of the Judiciary, EU:C:2021:153, and, in its implementation, the judgment of the Supreme Administrative Court of 6 May 2021, II GOK 2/18, LEX no. 2687377 and the judgments of that Court: II GOK 3/18 to II GOK 20/18 and the judgment of the Supreme Court of 15 April 2021, III PSKP 13/21, OSNP 2022 no. 2, item 11).
These defects were not fixed by the Act amending the Act on the Supreme Court of 9 June 2022 (Journal of Laws 2022, item 1259).
Given the rationale presented, we declare that we do not see any possibility of adjudicating together with people appointed in a defective procedure. A judge cannot knowingly breach the right of the citizens to a trial and expose the State of Poland to the obligation to pay high levels of compensation. Conduct to the contrary is in conflict with the duty to “faithfully serve the Republic of Poland” and “uphold the law and the rule of law”, as referred to in the judicial oath.’
We declare that, having exhausted the systemic and procedural means guaranteeing the parties the ability to obtain a correct panel of the court, we will not participate in activities undertaken by formations adjudicating with the involvement of people appointed to the Supreme Court on the basis of a motion of the National Council of the Judiciary which was established with the membership and in the procedure provided for by the Act of 8 December 2017.
This declaration does not constitute a refusal to administer justice.’
Signatures under the Declaration
Supreme Court Judge Tomasz Artymiuk
Supreme Court Judge Bohdan Bieniek
Supreme Court Judge Jacek Błaszczyk
Supreme Court Judge Dariusz Dończyk
Supreme Court Judge Jolanta Frańczak
Supreme Court Judge Jerzy Grubba
Supreme Court Judge Paweł Grzegorczyk
Supreme Court Judge Józef Iwulski
Supreme Court Judge Monika Koba
President of the Supreme Court Michał Laskowski
Supreme Court Judge Jarosław Matras
Supreme Court Judge Dawid Miąsik
Supreme Court Judge Grzegorz Misiurek
Supreme Court Judge Maciej Pacuda
Supreme Court Judge Władysław Pawlak
Supreme Court Judge Agnieszka Piotrowska
President of the Supreme Court Piotr Prusinowski
Supreme Court Judge Krzysztof Rączka
Supreme Court Judge Marta Romańska
Supreme Court Judge Barbara Skoczkowska
Supreme Court Judge Romualda Spyt
Supreme Court Judge Andrzej Stępka
Supreme Court Judge Dariusz Świecki
Supreme Court Judge Roman Trzaskowski
Supreme Court Judge Karol Waitz
Supreme Court Judge Małgorzata Wąsek-Wiaderek
Supreme Court Judge Eugeniusz Wildowicz
Supreme Court Judge Paweł Wiliński
Supreme Court Judge Włodzimierz Wróbel
Supreme Court Judge Dariusz Zawistowski