On 23 January, three chambers of the Supreme Court adopted a resolution with the force of a rule of law, meaning it is binding on all chambers of the Supreme Court.

The Supreme Court ruled that because of the manner in which it was constituted, the present National Council of the Judiciary („the Council”) does not guarantee that an individual appointed to the bench by the President on the Council’s recommendation is a proper member of an adjudicating panel.

This is why the Supreme Court ruled that all panels convened by the Supreme Court are defective when they include individuals appointed based on a recommendation by the current Council. It also held that adjudicating panels in common and military courts that include individuals appointed with the recommendation of the current Council may be subject to review.

The Supreme Court has chosen to split the baby. To avoid legal chaos, the only verdicts subject to review will be those issued following the announcement of the resolution on 23 January with the participation of judges selected by the new Council. However, this restriction does not apply to rulings of the Disciplinary Chamber of the Supreme Court.

On Friday 24 January, Prime Minister Mateusz Morawiecki filed an application with the Constitutional Tribunal for it to review the constitutionality of the provisions based on which the Supreme Court issued its resolution.

Yesterday, Minister of Justice Zbigniew Ziobro said that “the Supreme Court has acted in gross violation of the law, and its so-called ‘resolution’ has no practical legal effect.” The Ministry of Justice published a statement immediately after the adoption of the resolution by the Supreme Court, in which it declared it held the resolution… invalid.

Supreme Court Justice Włodzimierz Wróbel explained for non-lawyers that the resolution adopted by the Supreme Court is a safety valve for judicial independence. He suggested that by issuing resolutions, the Supreme Court can only seek to calm the chaos evoked by politicians.

Ewa Łętowska: A wise and forward-looking resolution

“This is a very wise and forward-looking resolution. It clearly steps away from the competence dispute that political decisions attempted to force it into. It is clear that there is no mention of questioning the competence of the bodies listed in the application filed by Speaker of the Sejm Elżbieta Witek with the Constitutional Tribunal.

This is a resolution that imposes some order on the present situation, but – significantly – places the decision as to how to proceed when confronted with an improperly constituted court in the hands of the courts and the parties themselves. And the improper constitution of the court is based on the participation of judges with recommendations from the new Council. Thus, justices with recommendations from the new National Council of the Judiciary should refrain from adjudicating. If they fail to do so, the court will be improperly constituted. This should be examined ex officio, and parties will certainly seek to do so; it may also be the case that other judges, who are not “defective”, may apply to be excluded from cases involving those justices with recommendations form the new Council.

The status of the Disciplinary Chamber in the Supreme Court is a special issue. Earlier, on 5 December 2020, the Supreme Court ruled that it did not meet the criteria for an independent and impartial court. All of its rulings are and will be null and void, regardless of when they were issued.

Other judges selected with the involvement of the new Council are suspecti – their position is in doubt, but they are judges, nobody is questioning their appointment as done by the President. However, their rulings will be subject to review owing to the defective composition of the court.

A separate problem is that of verdicts issued prior to 23 January 2020 with the participation of judges contaminated by the involvement of the new Council in their appointment. All rulings of common courts remain in effect. The simple fact of the new Council’s presence in the process of appointing judges does not automatically lead to the defectiveness of verdicts. But if it is demonstrated (in respect of common court judges) that there are some particular circumstances related to the nomination process, then there will be a path available by which their verdicts can be questioned.

The Supreme Court wisely limited itself to indicating strictly procedural, judicial instruments for assessing the propriety of court compositions, placing the decisions in the hands of judges themselves.

In the resolution, the Supreme Court referred to the criteria of independence and impartiality of courts and judges, and clearly followed its jurisprudence in the verdict of 5 December 2019.

The Supreme Court has not ordered anybody to do anything. It has not struck down the muzzling law. Because this is not its place, and it will not be able to do so. It did not say that the judges who were appointed by the President with the recommendation of the new Council are not judges. It said that there are doubts as to the independence and impartiality of courts and judges, and explained how to remove those doubts. It also indicated the means available to parties and courts to defend those principles in court proceedings.

What consequences will result from this resolution? We shall see. Perhaps those judges will of their own accord decide that they should not issue verdicts. Or perhaps we will see further confrontation?

The Supreme Court did not insert itself into a competence dispute. It did not undermine the President’s judicial nominations, nor did it order the Sejm to do anything. The muzzling law passed by the Sejm today changes nothing in this respect.

However, the moment is a dramatic one. Without the cooperation of the legislature, who has been given a way out by passing a new law on the National Council of the Judiciary, chaos will remain. But this is not the role of the courts; rather, it is for the legislature to handle. However, if politicians continue to pursue their campaign against their co-equal branch of government, another wave of tumult awaits us. For the Supreme Court’s resolution is only a partial, fragmentary defence against that wave. We are still expecting the response of the EU Court of Justice to the complaint brought by the European Commission, as well as to motions for preliminary rulings on the Disciplinary Chamber and the nature of disciplinary proceedings.

In its resolution of 23 January, the Supreme Court explained what an independent court is. It also told judges to be careful when ruling, for them to be sure they and their colleagues are all above board. And if you are not careful, your rulings can be overturned on appeal, or by the Supreme Court. The Supreme Court said “primum non nocere” – firstly, do no harm.