by Łukasz Woźnicki and Justyna Dobrosz-Oracz  

Posted in Polish on Gazeta Wyborcza on 13 February 2021

The motions to remove the judges were filed at the end of January. As we unofficially established, they apply to four judges from the Labour and Social Insurance Chamber. Małgorzata Manowska wants them removed from cases that are pending before the Chamber. The State Treasury – the Supreme Court is the defendant in these cases. The First President is representing the Supreme Court, so Manowska exercised her right as a party and requested the removal of certain members of the benches.

The cases in question are high-profile cases being handled by the EU Court of Justice and could shake up PiS’s ‘reform’ of the judiciary. Judges from the Themis and Iustitia associations sued a total of 25 new Supreme Court judges. All of them were appointed by President Andrzej Duda at the request of the politicised NCJ.

‘Our actions are intended to unequivocally establish whether these people are judges or not,’ said the president of Iustitia, Krystian Markiewicz, who filed one of the suits for ‘the establishment of the non-existence of the office of a judge of the Supreme Court’. The authors of the suits believe that the motions for appointment were ineffective because of irregularities in the staffing of the Council. And a judge cannot be appointed without a motion.

The Labour Chamber has not yet settled the cases filed against the new judges. It is waiting with its verdict to see what the EU Court of Justice says. Various benches have asked the CJEU for interpretations of EU law, including whether it can be said that someone is not a judge. The Polish government and the PiS-controlled Constitutional Tribunal consider that judicial appointments cannot be questioned. A year ago, PiS banned the examination of the status of judges in the ‘Muzzle Act’. This is punishable by removal from the profession.

The CJEU should answer the questions this year. ‘The CJEU judgment can lead to all new appointments, not just to the Supreme Court, being undermined,’ believes Markiewicz. Deputy Minister of Justice Anna Dalkowska said before the CJEU that the effects of a possible ruling would affect over five hundred judges of various courts.

Małgorzata Manowska, who herself was appointed to the Supreme Court by the new NCJ, is trying to reduce these consequences. In December, she requested Julia Przyłębska’s Constitutional Tribunal to block the ability to deal with judges in cases such as those before the Labour Chamber. Manowska has now also requested the removal of several judges from cases after they submitted questions to the CJEU.

According to our information, the motions apply to Judges Piotr Prusinowski, Dawid Miasik, Jolanta Frańczak and Krzysztof Rączka. These are ‘old’ judges of the Supreme Court, who opposed restrictions on the independence of the judiciary in the past. Manowska is questioning their impartiality. According to the rules, judges are removed from cases when some circumstances give rise to reasonable doubts as to their impartiality.

‘I declare that there are no circumstances on my part that would give rise to doubts as to my impartiality in the examination of the aforementioned case,’ Judge Rączka responded with such a statement to Manowska’s motion. He is considering an action filed by a judge from Iustitia, Bartłomiej Starosta, who sued six new judges of the Chamber of Extraordinary Control, as well as the state treasury – the Supreme Court. Manowska wants to remove two people – Rączka and Judge Frańczak – from the three-person bench.

Judge Rączka: This is a groundless attempt to discredit me as a judge

‘The obviously groundless motion is purely a pretext for eliminating me from participating in this case for non-substantive reasons that I find incomprehensible,’ commented Rączka. As he wrote in his statement, Manowska’s doubts were aroused by – and I quote from the motion – ‘the well-known critical statements made by the judge about the systemic changes in the Supreme Court’.

According to Manowska, the judge allegedly made such statements last year during a meeting of the judges of the Supreme Court, at which they were electing candidates for the office of first president. ‘There is no mention as to which of my statements this applies to or what their connection with the case in question would be, which allegedly deprives me of impartiality. Meanwhile, quoting the statements attributed to me should not pose any problems, as the course of the meeting of the judges was recorded,’ he added.

What about the other judges? Manowska was said to have justified her doubts with the legal arguments of the judges used in the justification of a ruling. Frańczak, Miąsik and Prusinowski were the first in 2019 to ask the CJEU about the status of a new judge. In the justification, they wrote that the new first president – if this will be a new judge – would have no interest in implementing a possible CJEU ruling and suing new judges.

‘And then the Supreme Court of the Republic of Poland will only be able to say to the Union of law: “Good night. And good luck”,’ they wrote at the end of the justification, which spread among the judges.

‘If the legal views expressed by a judge in a justification are considered a reason for exclusion in another case, what kind of country are we living in?’ we hear in the Supreme Court.

Rączka wrote about the motion in his case: the general nature of the motion prevents the verification of its legitimacy. Meanwhile, according to the regulations, doubts about impartiality must be substantiated. He calls Manowska’s motion itself ‘a groundless attempt to discredit him as a judge’.

‘It can also be construed as an attempt to deprive the plaintiff of the right to have the case heard by an independent, impartial and independent court,’ he wrote. But the first president, like any party to a case, is entitled to file such a motion. Whether she is right will be decided by a single-member bench of the Labour Chamber, which will decide on whether to remove the judge.

For now, the judges are wondering why Manowska has only filed her motions now, as the preliminary questions were submitted in July. They suspect that the current management of the Supreme Court is expecting a negative ruling from the CJEU for the new judges. ‘Perhaps this is some kind of attempt to paralyse the cases?’ we hear. Manowska has requested the removal of four of the 13 judges of the Labour Chamber, including one new judge.

We asked the first president about the reasons for her motions and why she made them. We are waiting for a response.