Can the Criminal Chamber of the Supreme Court expect chaos? Much depends on the new president
Will the new president, Zbigniew Kapiński, be up to managing an important chamber of the Supreme Court? Will he behave like a truly independent judge and protect it from political upheaval and pressure?
Neo-judge of the Supreme Court, Zbigniew Kapiński, will receive his nomination as president of the Criminal Chamber from President Andrzej Duda on Wednesday. This is no surprise: the President is defending the neo-judges, and consequently his own personnel decisions in the judiciary, at all costs, ignoring the judgments of the international tribunals. Just as in the case of the nomination of Małgorzata Manowska as the first president of the Supreme Court, Andrzej Duda is ignoring the voices of the judges of the Supreme Court. Manowska’s counter-candidate, ‘old’ Judge Włodzimierz Wróbel, had greater support from the judges at the college, but this was irrelevant; the President chose a neo-judge of the Supreme Court. The situation was similar in the Criminal Chamber.
Therefore, a neo-judge of the Supreme Court will head the key chamber, which has the final say in criminal cases, including such sensitive cases as that of former PiS ministers Mariusz Kaminski and Maciej Wąsik. A man who decided to apply for promotion to the most important court in the country, despite the defective procedure before the politicised and unconstitutional National Council of the Judiciary. Does this disqualify the new president? Can the next chamber expect chaos and a fierce internal war between the ‘old’ judges and the neo-judges of the Supreme Court? Is this the beginning of the slow end of this chamber? I don’t know. And this uncertainty itself is dramatically disturbing.
The Supreme Court. President Andrzej Duda has backed a neo-judge
What I do know, however, is that the President did not choose either of Judge Kapiński’s two counter-candidates. He did not back any of the ‘old’ judges of the Supreme Court, including the president of the chamber to date, Michał Laskowski, who he nominated himself last time. President Laskowski has been taking a hard line in defending the Criminal Chamber against chaos and politics. In times that were not easy for judges and citizens, he was a legal authority, a respected defender of judges in cases with an obvious political background. He ensured that, despite the great turmoil brought about by PiS throughout the judiciary, despite the progressing internal destruction of the Supreme Court, the Criminal Chamber still operated reasonably normally and did not degenerate.
Mixed benches consisting of neo-judges and judges were not appointed in the Criminal Chamber, so as to minimise the risk of a resumption of defective proceedings and the award of damages by the European Court of Human Rights. There were no ‘arrests’ of case files there, no strange changes of benches and weeding out of ‘old’ judges from them. Such pathological practices are known from other chambers of the Supreme Court staffed by neo-judges.
The prosecutor’s office that is subordinated to a politician or the Constitutional Tribunal, which is controlled by PiS, did not receive criminal case files on request. Politically controlled institutions, which are far from being independent, did not stop criminal proceedings. Decisions in the Criminal Chamber were made carefully and certified copies of files were provided.
Will President Zbigniew Kapiński protect the Criminal Chamber of the Supreme Court from political pressure?
Will this still be the case? The neo-judge of the Supreme Court who has the shortest service in the chamber is becoming the president of the Criminal Chamber of the Supreme Court. But – on the other hand – Zbigniew Kapiński is an experienced criminal judge; his career has taken him through the judiciary from the lowest district level. He recently ruled in the Warsaw Court of Appeal, served as a visiting judge, and lectures at the school of judges and prosecutors in Kraków. I assume that someone like this knows the judiciary inside out, and I assume that he did not get to the appeal level by chance, as he was, after all, evaluated by the constitutional NCJ. He was critical of Przemysław Radzik’s (currently vice president of the Court of Appeal in Warsaw and one of the main disciplinary commissioners harassing independent judges) candidacy for promotion to the appeal level during the promotion procedure before the neo-NCJ.
Will President Kapiński be up to managing an important chamber of the Supreme Court, and will he behave like a truly independent judge and protect it from political upheaval and pressure? There is a chance of that. We will know by the fruits of his actions, by whether he will maintain the principle of not appointing mixed benches comprising judges and neo-judges, by whether there will be a seizure of case files in the Criminal Chamber, stopping sensitive proceedings or strange changes in benches appointed for specific cases.
The article was published in Polish in Gazeta Wyborcza, 9 May 2023.