The changes affecting the ‘old’ Supreme Court judges and introducing the principle of settling cases in the Supreme Court primarily in camera are being introduced by the new Rules of the Supreme Court. 

The Rules were published in the form of a presidential regulation [by President of the Republic Andrzej Duda – eds.] on Wednesday 16 June 2021 in the Journal of Laws and will enter into force seven days after their publication.  The Rules specify the organisation and rules of operation of the most important court in Poland. It details the provisions contained in the Act on the Supreme Court and in the criminal and civil procedure. 

The amended Rules are a further step towards taking control of the Supreme Court, where the majority is still held by the ‘old’, legal judges of the Supreme Court from the three Chambers: the Civil, Criminal and Labour and Social Insurance Chamber. Previously, in order to gain authority over the court, PiS amended the Act on the Supreme Court as many as 11 times, and new Rules of the Supreme Court Rules were introduced in 2018, which are now being amended. 

Who will count the votes in the elections in the Supreme Court 

In the new Rules, the President of the Republic is weakening the position of the old, legal judges of the Supreme Court, who still have a majority over the judges appointed by the new, politicised National Council of the Judiciary (NCJ). 

The Rules detail the method in which the First President of the Supreme Court and the Presidents of the Chambers are elected.  This amendment is the President’s response to the election of the president of the Supreme Court in 2020.  At that time, temporary presidents, Kamil Zaradkiewicz and Aleksander Stępkowski, who were appointed by the President, pushed for the selection of candidates, from among whom the President chose Małgorzata Manowska.  The old judges of the Supreme Court then tried to introduce clear procedures for selecting candidates at the General Assembly of Supreme Court Judges.  They raised various formal motions.  Among other things, they were demanding the adoption of an agenda.  But their voices were ignored. 

Now, the President of the Republic has introduced provisions in the Rules to ensure a fast election of the new president of the Supreme Court and presidents of the Chambers.  This is supposed to ensure control over this procedure.  This mainly applies to the appointment of a returning committee to count the votes.  The appointment of such a committee proved to be not so simple when electing the new president in 2020.  The old judges of the Supreme Court blocked the election of the committee as a sign of protest against the way in which Zaradkiewicz was handling the proceedings of the Assembly.  Whereas the committee is important because its decision determines whether a given vote is valid or whether the votes cast are valid. 

That is why the new Rules will change the membership of the returning committee.  Until now, it consisted of the president of the Disciplinary Chamber and one judge from each of the chambers (they were elected by the General Assembly of the Judges of the Supreme Court).  Now the committee is also to have five members, one from each chamber.  However, the rules state that the committee will automatically include the youngest judge from each chamber.  This means that it will no longer be possible to block the election of the returning committee.

How the new judges will control the election of the presidents of the Supreme Court 

Importantly, in practice, this provision in the Rules will mean that new judges, most recently appointed to the Supreme Court, will count the votes.  The next elections will be held during the summer holidays, because the terms of office of the president of the Civil Chamber, Dariusz Zawistowski, and the president of the Labour and Social Insurance Chamber, Józef Iwulski, are expiring.  The new presidents must be approved by the President.  Joanna Misztal-Konecka, a professor from the Catholic University of Lublin and a former judge from Lublin, has been nominated as Zawistowski’s successor, who the President may accept.  She was on the list of four candidates for the position of First President of the Supreme Court, which was submitted to the President in 2020. 

Misztal-Konecka’s candidacy may be proposed by the new judges of the Supreme Court. 

In turn, there is only one new Supreme Court judge in the Chamber of Labour and Social Security.  An Assembly has already been held in this Chamber, which has selected three candidates for the office of president of that Chamber: Bohdan Bieniek, Jolanta Frańczak and Piotr Prusinowski.  But it is unclear what the President will do.  Furthermore, recruitment is being conducted by the NCJ to fill vacancies in the Supreme Court, including in the Labour Chamber.  As many as nine positions are to be filled in this chamber, which means that there will be more new judges here shortly.  Will the President want to drag out the election of a new president of the Chamber against the will of the Assembly until then? 

How the old judges will be silenced 

The new Rules are also striking at the association of the Supreme Court judges.  This is the General Assembly of Judges of the Supreme Court, namely all the Supreme Court judges.  So far, the Assembly has been adopting resolutions on the most important matters regarding the Supreme Court and could adopt positions.  In these positions, the judges were able to express their opinions not only on matters related to the Supreme Court, but also, for example, on matters regarding the rule of law in Poland. 

Such resolutions and positions were adopted by assemblies of judges throughout Poland.  But PiS restricted the role of the association of judges in the ordinary courts and silenced them with the 2020 Muzzle Act. 

Now the same can take place in the Supreme Court with the help of the President’s regulation. 

The provisions of the amended Rules prohibit the adoption of positions in the Assembly.  Furthermore, the president of the Supreme Court, who chairs the Assembly’s deliberations, will be able to silence criticism because she is receiving more extensive powers.  It will be Małgorzata Manowska and not the Assembly who will decide whether to extend the agenda with issues submitted by the judges.  It will also only be possible to request an amendment to the agenda before the start of the Assembly.  It will no longer be possible to raise such a motion during the proceedings.  Will President Manowska take advantage of this provision to block the initiatives and positions of old Supreme Court judges? 

The president of the Supreme Court will also decide who will be allowed to take the floor at the Assembly, and she will be able to issue procedural orders, e.g. silencing speakers.  If the Assembly passes resolutions by secret ballot, the votes will be counted again by a returning committee composed of the youngest judges (one from each chamber). 

Just in case, so the old judges do not block the Assembly’s proceedings.  Similar rules will apply to the Assembly of Judges of the individual Chambers. 

The President’s regulation also affects the Board of the Supreme Court, where the old judges (who have a minimal majority) and the new ones clash.  The Board currently has an influence on some decisions of the Supreme Court.  It can also pass resolutions on matters of importance to the Supreme Court.  It consists of the First President of the Supreme Court, the presidents of the Chambers and two judges from each Chamber.  The new Rules of the Supreme Court state that the First President may extend the agenda of a meeting of the Board.  The provision to date stated that the Board does this.  This may also be a way of moderating discussions at the Board and blocking matters submitted by the old judges of the Supreme Court. 

Furthermore, like the Assembly, the Board will no longer be able to adopt positions.  We recently wrote in OKO.press about the resolutions that the old Supreme Court judges managed to adopt in the Board: 

Will the eagles be removed from the courtrooms? 

The president’s regulations affect two more less important issues, but which are of importance to the image of the Supreme Court.  Among other things, it introduces the principle that images of the eagle in the Supreme Court’s courtrooms are to be consistent with the image of the eagle defined as Poland’s national emblem.  The official eagle is to be white on a red background.  Meanwhile, the Supreme Court’s courtrooms have a glass eagle according to architect Marek Budzyński’s vision, who designed the court building years ago. 

Will there now be a spectacular removal of the glass eagles and will traditional emblems be hung, which will be incompatible with the style of the courtrooms? 

‘The First President of the Supreme Court regrets that the contract once signed with the architect makes it impossible to remove any decorative elements of the Supreme Court’s building.  Therefore, we cannot replace these glass installations with an image of the Polish national emblem that is consistent with the law,’ Supreme Court press officer Aleksander Stępkowski tells OKO.press. 

Additionally, the new Rules do not provide for a separate press officer for the illegal Disciplinary Chamber.  The Chamber’s press officer today is Piotr Falkowski, who is known to everyone coming to cases at the Chamber.  The Supreme Court press officer announces that Falkowski will move to the new Supreme Court Information Centre being created on the basis of the press office. 

Will the Supreme Court close its courtrooms to the citizens? 

Article 87 of the new Supreme Court Rules is also important from the point of view of citizens and journalists.  The new wording reads as follows: ‘The Supreme Court rules at hearings in camera.  The presiding judge [of the panel? – ed.] may refer the matter to a public hearing or to a trial.  Article 87 to date stated that ‘The Supreme Court rules at hearings and sessions.  Sessions are either public or non-public.’ 

In other words, according to the new Rules, the main principle is that cases heard in the Supreme Court are not public. 

Does this mean that it will now be impossible to come to cases at the Supreme Court?  Especially since the Rules state that the provisions of the President’s Regulation apply to proceedings before the Supreme Court, taking into account the provisions of Acts.  We asked Supreme Court press officer, Aleksander Stępkowski, about the new regulation.  He replied that ‘such a regulation arises from the procedural codes and the Act on the Supreme Court.  This is not a matter of the regulation.’ 

In civil cases, the Civil Procedures Code states that ‘the Supreme Court examines a cassation complaint at a session held in camera, unless there is an important legal issue in the case, and the complainant has submitted a motion to examine it at a hearing in the cassation complaint.  The Supreme Court may also examine a cassation complaint at a hearing if this is supported by other considerations.’ 

In turn, in criminal cases, the Criminal Procedures Code states that ‘the Supreme Court examines a cassation complaint at a hearing and, in cases provided for by statute, at a hearing without the involvement of the parties.’ 

Will it now be as in the Disciplinary Chamber that the most important cases of interest to journalists will take place in camera – even behind closed and locked doors – and each panel will decide on when to allow journalists in and for what part of the session? 

People who are familiar with the work of the Supreme Court behind the scenes say that the provision of the new Supreme Court Rules will not change anything, because the principle of openness is reversed in the Supreme Court.  In other words, the main principle is that cases are not heard in public. For example, 80%–90% of cases in the Labour Chamber are heard in this way. Our interviewees make the assurance that judges will continue to decide in accordance with the procedure as to which cases will be held in camera and which will be open to the public. 

We also hear that there is currently a trend of handling as many cases as possible in camera. This arises from the changes introduced by PiS in the laws. The ruling camp is working on further changes to restrict the openness of cases in all courts.  

Translated by Roman Wojtasz. The article was posted in Polish at OKO.press on 17 June 2021