‘They’re finishing off the Supreme Court’. Judge Rączka talks about attempted bullying and harassment in the most important court
‘It’s beneath me to comment on Ziobro’s words that “officials from Brussels want to incapacitate Poland”,’ says Supreme Court Judge Krzysztof Rączka.
by Justyna Dobrosz-Oracz, Gazeta Wyborcza
Justyna Dobrosz-Oracz: Your honour, you apparently feel harassed by the president of the Supreme Court. Is that true?
Krzysztof Rączka, Supreme Court judge: ‘Harassed is too strong a word right now. But the steps that Judge Manowska has taken are a harbinger of the application of bullying. Not only against me, but also against other judges of the Labour and Social Insurance Chamber. The president issued an order, despite the procedures, to transfer us to adjudicate in the Civil Chamber. The first dates of hearings have already been set for April.’
And what’s wrong with that? People could think that you have more work, so the hearing of cases needs to be accelerated in the Supreme Court.
‘The problem is that we are already 100% burdened. But the most important thing is that legal and social insurance specialists are being moved to the Civil Chamber. That’s like throwing an ENT specialist in a hospital into ophthalmology to perform microsurgery on an eye.’
So at that level judges cannot be requalified, just like that?
‘It’s not possible at that level. The judges with the highest qualifications in the given field should adjudicate in the Supreme Court.’
Does President Manowska not know that? Is the situation in the Civil Chamber so tragic that the new judges cannot cope there?
‘The tragedy is that people from the new recruitment are coming to the Supreme Court. Neo-judges who do not always satisfy the substantive criteria. People who have never dealt with labour law have ended up in our Chamber. And today, they are ruling on cases of ordinary people, very sensitive, difficult cases. And at this point we are being moved away from these issues, we are being moved to the Civil Chamber, for example – I’m just saying this without knowing the facts – to adjudicate on disputes between banks and borrowers in Swiss francs. This is completely different. I recently received a request to examine a case in an expedited procedure because the plaintiff is turning 83 and he doesn’t know if he will live to see the end of the case.’
Are the promotions of neo-judges to the Supreme Court causing paralysis?
‘Partly, yes. I can’t say that all new judges are incompetent. They have another sin on their conscience. They entered the promotional path through the neo-NCJ. Under normal circumstances, they would fully deserve to become Supreme Court judges, but not in this procedure. But some of them are unsuitable. They are less efficient, less effective. This undermines the confidence of citizens in the administration of justice in this way. And then there are the problems with management in the Civil Chamber, with the setting of cases. Officially, our move is supposed to “alleviate the bottleneck”. That’s the official version.’
But what about the unofficial version? Do you suspect this is some kind of revenge?
‘One reason could be the desire to harass the judges who are being transferred. If I am to prepare for several civil cases at Supreme Court level in, let’s say, three weeks, I don’t feel competent. I need more time. I have worked with labour law, insurance, social policy and social law all my life. The last time I dealt with civil law was during my master’s exam.’
Then let me ask you straight: are you accusing President Manowska of bullying?
‘Not yet, but I see bullying on the horizon.’
So the Supreme Court is in decline?
‘We can all see what has happened with the Constitutional Tribunal. Today, it’s a shell of a former institution. I apologise for the expression, but I’m now seeing an attempt to finish off the Supreme Court. To subordinate it.’
Piotrowicz’s daughter’s exam
‘Gazeta Wyborcza’ revealed that Constitutional Tribunal Judge Stanisław Piotrowicz was allegedly inciting two judges from the Podkarpacie region to rig his daughter’s articled clerk’s exam. This is a total embarrassment?
‘This isn’t the first time Mr Piotrowicz has discredited himself, and this doesn’t surprise me in the slightest. I would like to reiterate that a final judgment has been passed against him for breaching Professor Gersdorf’s and my personal interests.’
Stories about thieving judges.
‘There is a final judgment in this case, but it hasn’t been executed. The court has suspended its execution.’
The matter of pressure disqualifies it? Stanisław Piotrowicz was the face of the PiS revolution in the courts.
‘He disqualified himself with his actions in the Tribunal. But also before that, also in his role as a communist prosecutor and in free Poland as a legislator.’
Should prosecution in this case be initiated ex officio?
‘Disciplinary proceedings in the Constitutional Tribunal at the very least. I don’t know the details of the matter. I only know the press reports and, on this basis, there is a reasonable suspicion that he has committed at least a disciplinary offence.’
But there is silence, nothing is happening.
‘Silence. This is the old method. Today, there is a scandal, tomorrow, we cover it up with another one, then another one and after a week no one remembers that there was a scandal in the first place.’
Przyłębska is still in post of president of the Constitutional Tribunal
Now the Tribunal is dealing with itself. It’s arguing about whether Ms Przyłębska is its president. Is she or isn’t she?
‘God only knows.’
What about the Act passed by PiS?
‘In my opinion, her term of office has already ended. However, this matter must be resolved by this Shell Tribunal itself plus the President of the Republic of Poland.
The President says: let the Tribunal unargue itself. Is he washing his hands of this?
‘Pilate also washed his hands.’
The NRRP. President Duda refers the Act on the Supreme Court to Przyłębska’s Constitutional Tribunal
Andrzej Duda is also advising PiS not to look at the money from the European Union. He didn’t sign the amendment to the Act on the Supreme Court. Is this a defence of the revolution in the courts?
‘This is a defence of President Duda himself, of the ideas he has introduced. They have brought about a further paralysis of the courts.’
In other words, he is defending himself?
‘Partly, yes. I don’t believe that, all of a sudden, the President has become a zealous defender of the Constitution, after he had previously repeatedly and unceremoniously violated it.’
Andrzej Duda’s version is that he is protecting the Polish justice system from anarchy and judges from other ‘people from the judicial community who are sick with hatred’. Do you see any people who are sick with hatred?
‘I don’t see people who are sick with hatred; I see a sick justice system. It became sick under the current ruling party. The system has been destroyed and degraded since 2016. President Andrzej Duda is instrumental in this. I don’t see any desire for retaliation, or revenge on the part of the judges from the old recruitment. There is only an emphasis on one thing, that a judge should be appointed in the correct procedure. There is no point in referring to some kind of miraculous prerogative, because it was King Louis XIV of France who had prerogatives.’
The President is pretending to be Louis XIV?
‘He is making reference to prerogatives that do not exist in the modern legal order. The President has powers. And he has to exercise these powers in accordance with the procedures. In the case of judges, these procedures should involve the existence of a correctly selected NCJ. The Council holds a correct recruitment procedure. It recommends the candidates to the president and the president appoints the judges, end of story. If any of these stages is not performed properly, we end up with the diseased fruit which is now beginning to rot.’
Does this alleged compromise with the European Union breach the Constitution?
‘Of course. This is beyond the slightest doubt. The transfer of disciplinary matters to the Supreme Administrative Court constitutes a breach of the Constitution. A first-year student knows this. The legislator didn’t know? This is a mockery’
The opposition voted with PiS on the money for the NRRP.
Do you blame the opposition for abstaining in the Sejm?
‘I am aggrieved that it has been accepted that values such as the rule of law and the defence of the Constitution, can fade into the background. There are certain values that are not open to discussion in a democratic state governed by the rule of law. And these are independence of the courts, independence, the rule of law, the Constitution.’
Pressure from the European Union has resulted in defiant judges returning to adjudication. The floodgates to questioning the status of judges have been opened wider. I have the impression that the neo-judges have started to panic. Is it not the case that PiS has taken a step back in this offensive of theirs?
‘This is only half a step back, whereas the tank is moving forward.’
The European Commission is filing a complaint with the CJEU about Julia Przyłębska’s Constitutional Tribunal. Will this end in more penalties?
‘It will end with the money for the NRRP definitively being blocked. Even if this pseudo-Tribunal were now to rule that the new laws are constitutional, the EC will say: ‘sorry, the matter is with the CJEU and, until the CJEU rules on whether it is an independent Constitutional Tribunal or not, we cannot transfer any money.’
So a deadlock?
Judge Rączka: It’s beneath me to comment on Zbigniew Ziobro’s words
Zbigniew Ziobro thunders: ‘the officials from Brussels want to incapacitate Poland’.
‘Madam, please do not ask me to comment on statements of that level.’
But we can’t pretend that they were not said.
‘It’s beneath me to comment on his words.’
The Senate has chosen lay judges, but Manowska is demanding a resumption
The President of the Supreme Court is not swearing in the lay judges appointed by the Senate. Is this a usurpation?
‘This is an acknowledgement that Judge Manowska thinks she is now entitled to royal prerogatives. She says: I will not sign it because I will not sign it. This has no legal grounds. The president is not fulfilling her fundamental duties. There is a far-reaching suspicion of a breach of Article 231 of the Penal Code: whoever oversteps or fails to fulfil his duties. Her job is to swear in the people who the Senate has elected.’
Should proceedings be initiated in this case?
‘Yes, they should be initiated. On the side-line, I will tell you a story. The president of the Chamber of Labour, Piotr Prusinowski, met with the lay judges who had not taken the oath in our Chamber’s conference room. In retaliation, a few days later, Judge Manowska took this conference room away from us and said that she would now decide what meetings this room would be used for. We are to apply to her to make the room available. I think the role of the president of the Supreme Court and the janitor are two different roles.
As for the scandal with the blocking of the lay judges, the opposition suspects this is a sign for the future. If PiS loses the elections, one of the Chambers of the Supreme Court might not accept this. Do you believe such a scenario is really possible?
‘I would not want to pre-empt the facts and assume ill-will on the part of the people in that Chamber. We will find out who they are by their fruits.’
But you would not rule this out?
‘Nothing can be ruled out or accepted in life.
Yesterday, we caught the former deputy minister of justice, now an active judge, Łukasz Piebiak, in the office of the head of the PiS club. Is this a symbol?
‘This is the separation of powers a’la PiS. Mrs Julia Przyłębska cooks dinner for the chairman of the ruling party, judges meet with politicians. Politicians visit the Constitutional Tribunal, which once was unthinkable.’
Some judges are already party functionaries?
‘Some have never taken off those caps. I’m not saying all of them. I know of people who have been able to disassociate themselves from their political past and seriously take up their role as a judge of the Tribunal or the Supreme Court. But there are people who are still wearing the caps of politicians.’
The turnaround in the case of pardoning Kamiński and Wąsik. The Supreme Court took up the case despite Przyłębska’s blockade.
There is a turnaround in the case of pardoning Mariusz Kamiński and Maciej Wąsik. The Supreme Court has taken up proceedings despite the blockade placed on it by Julia Przyłębska’s Tribunal. Can the judges reset the presidential pardon?
‘I believe they can, but what they will do, god only knows?’
But it is, nonetheless, a breakthrough?
‘This is a huge breakthrough. It’s a reaction to an obvious omission by the Tribunal. Besides, it’s not the only one; we should remember that, in the case of pensions for former secret service officers of the People’s Republic of Poland, the Tribunal has also applied a blockade. And is continuing to apply it to this day.’
Only the Kamiński and Wąsik case has remained unresolved for six years because of an alleged dispute over competence.
‘Disputes over competence are just a ploy to put cases on the back burner and keep them under lock and key.’
Translated by Roman Wojtasz
The interview was published in Polish in Gazeta Wyborcza, Marc 1, 2023.