We asked Ewa Łętowska, the first Commissioner for Human Rights (1988-1992), justice of the Supreme Administrative Court (1999-2002) and the Constitutional Tribunal (2002-2011), an outstanding legal authority, to comment on the letters of support for judges to the neo-National Council of the Judiciary disclosed on 14 February 2020.

Interview by Anna Wójcik and Piotr Pacewicz

In a penetrating analysis, Łętowska addresses such issues as:

The “cooperative” of judges and signatures in blanco:

“The letters of support were put together on the basis of a cooperative of judges centred around the ministry. So-called cooperatives are criticised (and rightly so) when a group of author-scholars agree to mutually quote one another in order to improve their ranking scores. The same thing went on here. There is intersecting, mass support from judges delegated to the ministry for several triumphant candidates.”

“It looks like judges were co-opted to give support.”

“There is a disastrous practice of preparing lists in blanco to present government bills to the Sejm as Members’ bills. Has a similar procedure been followed for lists to the Council? We don’t know, but this could be clarified by analysis of handwriting and of the printing on lists of support. They look very sloppy.”

The signatures of Judge Nawacki:

“Can a judge support his own candidacy for the National Council of the Judiciary, as Nawacki did? I don’t think so. After all, a candidate is on such a list because he agreed to run. So he is to perform two roles (active and passive) simultaneously?”

“The signatures backing Judge Maciej Nawacki’s candidacy were withdrawn before the list was submitted to the Speaker of the Sejm. The candidate’s proxy didn’t pay attention to this, and the Speaker either ignored or neglected to check. The argument that support cannot be withdrawn is untenable.”

“A defect concerning one candidate causes the whole list to be defective, and there is no possibility of a supplementary choice.”

The President’s magic power:

“The theory promoted by those around President Andrzej Duda that the President’s appointment sanitises all the errors in the procedure for nominating a judge represents a monarchist-mystical approach to the prerogative. I wonder if it means that the president could also “repair” the faulty process of professorial nomination or citizenship?”

Continue reading for the interview in its entirety.

Professor Ewa Łętowska: The Act on the National Council of the Judiciary needs to be amended, and a new Council selected, but this time the right way.

Anna Wójcik, Piotr Pacewicz: What do the released lists of support to the National Council of the Judiciary (NCJ) tell us?

Ewa Łętowska: The amendment to the Act on the NCJ introduced a mechanism for summary voting on the entire list of judges-candidates to the Council. This mechanism was introduced because the old Council consisted of members whose term of office began at different times. This was now to be avoided. Article 187(3) of the Constitution provides for a four-year term of office for the NCJ.

One defect is enough to render the entire list invalid.

Under the new rules, elections were conducted by block voting for the entire list, not by voting separately (by selecting individual items on the list) for each of the 15 appointed justices.

This was a consequence of the assumption that the term of office would be the same for all elected members of the NCJ. However, in this situation, a defect concerning a single candidate renders the entire list invalid and does not allow for a supplementary election, since the admissibility of individual terms of office of individual members is questionable, and at the same time the Constitution (Article 187(3)) provides for a four-year term for elected members of the NCJ.

The revealed lists indicate that the withdrawal of support (and this before submission of the list to the Speaker of the Sejm, which concerns Judge Maciej Nawacki) resulted in an insufficient number of judges supporting him. The candidate’s proxy failed to check this, and the Speaker either remained silent or failed to check, but information about the withdrawal of the signatures did reach the Sejm.

The argument that support cannot be withdrawn is untenable.

Can you please explain why?

First of all, support for Judge Mazur was effectively withdrawn, as the scans show us [three signatures were blackened out – ed.], but in this case, support for the candidate remained sufficient. Thus, since the withdrawal of support was approved and noted on one of the lists, the argument of inadmissibility of the withdrawal of support for Judge Nawacki collapses.

Secondly, the argument that support should be treated like “casting a vote at the ballot box” is inaccurate. This argument could possibly be made if the withdrawal had taken place after the transition to the next stages of the procedure for selecting candidates in the Sejm. Meanwhile, the withdrawal of support took place before the list was handed over to the Speaker!

Judge Mazur, as well as his proxy, were convinced that the support could be withdrawn, which was not done in the case of Judge Nawacki.

In my opinion, support can indeed be withdrawn until the list [of signatures in support of candidates] goes to the second stage of the procedure in the Sejm. That is, before the list is sent by the Speaker of the Sejm to further stages of compiling the final list of candidates by the parliamentary clubs.

The circumstance that “there is no relevant provision for withdrawal” is irrelevant. After all, there is also nothing about withdrawing support for candidates to the Constitutional Tribunal, and recently support was withdrawn (by the party in control of parliament) for Robert Jastrzębski and Elżbieta Chojna-Duch. Nobody was looking for a special provision back then.

What are the consequences of this procedural defect?

The defect concerning Judge Nawacki puts in doubt the validity of the entire list of 15 members of the NCJ selected in elections. It has serious consequences.

It reinforces doubts about the propriety of the selection of the NCJ – and thus further actions taken with its involvement in the procedure for the promotion of judges.

In addition, it undermines the position of two of the Supreme Court’s chambers staffed with new judges whose selection involved the NCJ: the Disciplinary Chamber and the Extraordinary Control and Public Affairs Chamber.

The monarchist-mystical presidency. Can everything be sanitised?

Now we can understand the legislature’s efforts (the so-called Muzzle Act of 20 December 2019) to introduce the idea – already promoted beforehand – that appointment by the President will remedy all mistakes in the procedure of selecting a judge.

Here again, a general comment: the presidential prerogative in the Polish constitutional system means that the President issues an act without the Prime Minister’s countersignature. Whereas the concept promoted by the President’s supporters is a different approach to the prerogative, in a monarchist-mystical spirit: any official contact by the President with any act is supposed to sanitise [to cure any violations of the law – ed.] any defects in the previous procedure. I wonder if this means that the President could also “fix” the faulty process of a professorial appointment or of granting citizenship?

This is an extension of the interpretation of the notion of constitutional prerogative in order to circumvent negligence and procedural errors.

I would add that the Constitution requires the President to appoint a judge at the application of the NCJ. What if there is no application by the NCJ because the election of the NCJ itself was faulty, so it did not have capacity to submit the application?

Our analysis of the revealed lists of support for judges of the new NCJ indicates that only some of them can be considered representatives of the judiciary, and only to a limited extent.

If the amendment to the law on the NCJ and the elections to the new NCJ held on its basis were done under the slogan of increasing its democratic representativeness  and this is how it was officially presented  they have completely failed in meeting this goal.

A cooperative of judges close to the Ministry

So what if the total number of supporters was 370, which, by the way, represents only about 3 percent of the total population of judges, if they aren’t the judicial milieu as a whole, but a selected, specific group?

So this 3 percent is not an emanation of the whole population. On the surface, there is no particular trait that links the signatories. However, analysis shows that many of them are somehow connected with the Ministry of Justice: as judges on a delegation, having received promotions, or as relatives of those who have been given promotions.

The lists of support were constructed on the basis of co-opted judges grouped around the ministry, which we would be hard-pressed to consider as democratic progress in the face of the rightly criticised over-representation of higher-ranking judges in elections to the previous NCJ.

But the previous elections were conducted by the judges themselves, within the framework of judicial assemblies organized throughout the country.

So-called cooperatives are criticised (and rightly so) when a group of author-scholars agree to mutually quote one another in order to improve their ranking scores.

The same thing went on here. There is intersecting, mass support from judges delegated to the ministry for several triumphant candidates.

It seems that the judges here were co-opted to give their support.

Are we talking about in blanco lists? Like with Members’ bills?

Unfortunately, in current parliamentary practice there is a terrible custom of preparing lists of signatures in blanco to present government legislation as Members’ bills to the Sejm.

Has a similar procedure been applied to lists of support to the NCJ? We don’, but analysis of the handwriting and of the printing on the lists could tell us. They look very sloppy.

“We’ll go room to room and we’ll have the signatures in a moment,” said Łukasz Piebiak, then deputy minister in the Ministry of Justice. “Going room to room” in the ministry can also be done with in blanco lists. Especially when there are so many judges delegated to work in the ministry.

As of 1 January 2019, there were 164 judges delegated to the Ministry of Justice (as reported by Gazeta Wyborcza). What do they actually do?

The institution of judges delegated to the Ministry was not something introduced by the present government. It has existed for a long time, and has always raised serious doubts about the constitutionality of such delegations. The delegated judges adjudicate from time to time but, generally speaking, they are officials, high-level clerks.

A judge working as a clerk in a ministry? This violates the principle of separation of powers.

In normal circumstances, their presence is, from the ministry’s point of view, beneficial as they are highly qualified officials who bring knowledge of jurisprudence and the reality of how courts work. Also, from the judges’ point of view, a delegation to a ministry can be attractive.
The delegated judges retain various salary privileges while at the same time doing a job that is easier than judging.

This has sometimes been used as a kind of leave to help someone with health issues or experiencing professional burnout.

However, there have long been quite serious reservations, including of a constitutional nature, as to whether the institution of a delegated judge is compatible with the notion of separation of powers in Article 10 of the Constitution. A delegated judge as an official reports to the minister. It used to be that judges remained in the ministry for a very long time – now there are time constraints. At the same time, they were to remain independent and unbiased when adjudicating.

There should be a separation between the second and third powers. Delegated judges are both officials subordinate to the minister and judges at the same time, which contradicts this principle.

Signing under one’s own candidature

An analysis by OKO.press drew attention to the case of judge Joanna Kołodziej-Michałowicz. She was nominated by her husband, Andrzej Michałowicz, president of the Słupsk District Court and a nominee of Zbigniew Ziobro. On her list of 30 signatures there is not a single signature from Słupsk, nor even from the district.

Her husband’s support is an example of a sort of ugly cronyism. And the fact that the judge did not collect signatures from her district shows that the “cooperative” did its job perfectly. And that’s that.

And the example of Judge Maciej Miter, the spokesperson of the NCJ, who collected 22 out of 25 signatures from judges delegated to the Ministry? According to an analysis by Iustitia, only one signature came from a judge who was not a beneficiary of “good change”.

This is another example of the cooperative’s efficient operation.

Can a judge support his own candidacy to the NCJ, as Judge Nawacki did? Iustitia did not count this signature in its analysis.

In my opinion, no. There is a difference between, for example, voting for oneself in parliamentary or presidential elections or any other elections, and appearing on the lists of supporters of a motion to elect a candidate.

After all, a candidate is on such a list because he agreed to run. So he is to perform two roles (active and passive) simultaneously?

I warn against reasoning by analogy with elections and voting for oneself. “Supporting” is by its nature not about yourself. And if someone lacks the required support and then she supports herself, this is a mockery of the principles she should respect as a judge. It doesn’t strengthen confidence in such a person and her integrity.

What should happen if irregularities are revealed in the lists of supporters of certain judges sitting in the new NCJ?

The Act on the NCJ should be amended and a new National Council of the Judiciary should be elected, but properly. Another matter is that this will not counter the charge of candidates being selected for political reasons.

The authorities defend themselves by saying that in many democratic countries (such a Germany, Law and Justice’s favourite example) such elections are made by parliaments.

But the accusation of political influence in the selection of candidates to the NCJ (in respect of the 15 judges) is not based on the argument that this is the Sejm’s final choice! The problem lies elsewhere.

Even aside from all the irregularities in the recent elections to the NCJ (support for candidates by the “cooperative” and not by a representative group of judges), the problem lies in the construction of the final en bloc list voted through in the Sejm. This is hardly discussed at all, and this is the heart of the matter.

The lists of support – and there may be many of them – go through the Speaker of the Sejm to the parliamentary clubs to indicate a list of club-supported candidates. From these lists the final list emerges, ensuring that there is at least one candidate indicated by each club.

This method gives the majority in parliament a disproportionate advantage in the nomination of candidates comprising that 15. Voting in plenary, even by a 3/5 majority, does not provide much help.

It gives politicians disproportionate influence on who is in the NCJ. It is the politicisation of elections to the NCJ, not the fact that ultimately it is the Sejm that votes on who comprises the NCJ. What is important is who constructs the list and how this is done in the Sejm. In Germany it looks different.

What does the publication of the lists mean for the decision taken by the EU Court of Justice? If it confirms the doubts about the independence of the neo-NCJ, does it further undermine the position of the Disciplinary Chamber?

Yes, indeed: the publication of the lists further justifies not only the doubts about the legitimacy of the NCJ’s appointment (procedural irregularities), but also provides evidence of its dependence on the executive power (the Ministry of Justice).

The facts justify the doubts formulated in the CJEU judgment of 19 November 2019 and the objections further elaborated in the judgment of the Supreme Court of 5 December 2019.

As for the Disciplinary Chamber, which was found to be lacking the essential elements of a court, the new facts do not contribute much, apart from reinforcing existing arguments. It has already been disqualified.

The lists of support, on the other hand, raise a new question: did it ever exist at all? Could applications have been “manufactured”? Those that served as the basis of nominations? And can the Muzzle Act of 20 December 2019, which is intended to sanitise the mistakes of the nomination procedure, truly remedy such deficiencies?

We recall the history of hiding lists of support

On 14 February 2020, the Chancellery of the Sejm disclosed letters with the names of the judges who supported candidacies of judges for the National Council of the Judiciary. Two years ago, these letters were one of the most closely guarded state secrets.

The Chancellery of the Sejm persistently ignored the judgments of administrative courts, which ordered them to be disclosed. The President of the Office for Personal Data Protection and the Constitutional Tribunal were used to keep the secret. Harsh repressions were meted out to the Olsztyn judge Paweł Juszczyszyn, who ordered the disclosure of the letters.

In January, the Chancellery of the Sejm provided general numbers of signatures on the lists. The law requires that a judge who is a candidate for the NCJ should be supported by at least 25 judges or 2,000 citizens.

On 6 February, “Gazeta Wyborcza” and OKO.press revealed the list of support of judge Teresa Kurcyusz-Furmanik. On 11 February, the government-friendly portal wPolityce.pl published the names of all judges who signed the lists, but without specifying who they supported. President Duda made a significant remark that not everything has to be right with the lists.

However, the key moment was the disclosure of full lists of support by the Chancellery of the Sejm. This made it possible to verify whether each of the judges elected to the NCJ in 2018 actually had the required support. Scans of the original letters with signatures were presented, which allow us to draw additional conclusions.

OKO.press pointed out that Judge Nawacki presented a list of 28 signatures, including his own signature, but as many as 5 judges withdrew their support. Iustitia stated its view that this means “there is no National Council of the Judiciary.”

In another analysis, we pointed out the significant share in the signatures of judges delegated to the Ministry of Justice (on 1 January 2019 there were 164 of them in the ministry) or otherwise connected with government authorities. Out of 25 signatures backing NCJ spokesman Maciej Matera, as many as 22 were submitted by judges delegated to Warsaw. Gazeta Wyborcza quoted an anonymous judge who spoke about this procedure: “When Piebiak suggested O campaign, I was completely unprepared. I said I didn’t have any signatures. Then Piebiak said: ‘Gimme a break, we’ll go around the rooms here and you’ll have the signatures soon enough.’”