PiS handles the media. How the neo-judges are helping the authorities win litigation
Examples of specific proceedings and decisions show what Zbigniew Ziobro and Jarosław Kaczyński stand to gain from staffing the courts with ‘their own people’.
Why are there neo-judges in the Supreme Court? Do the new nominees – especially at the highest level – give the rulers a guarantee of winning almost every case? Let examples of specific lawsuits constitute the answers to these questions. Let’s look at the most sensitive cases: the authorities v the media.
The authorities v ‘Wyborcza’
Wyborcza.pl’s editor-in-chief was sued by Sebastian Kaleta, deputy minister in Zbigniew Ziobro’s ministry to publish a correction. The politician did not like Marcin Kącki’s article ‘Priests removed from the register of paedophiles’ of 7 September 2018. First, the Regional Court in Warsaw dismissed Kaleta’s action in October 2019, after which the Court of Appeal in Warsaw overturned the judgment in May 2020 and ordered the publication of a correction.
The editor-in-chief filed a cassation complaint. He stated that, among other things, the request for the correction repeats the position already quoted in the publication, does not refer to specific sentences from the article, was filed by an individual who cannot be an ‘interested party’, and furthermore, the court misinterpreted the provision on responding to the request for the correction.
This is because it accepted that the editor-in-chief has to give all the reasons for refusing to publish the correction within seven days (otherwise he loses the opportunity to raise these allegations later in the proceedings).
The Supreme Court, consisting exclusively of neo-judges, dismissed the editorial office’s cassation complaint on 31 March. It held, among other things, that Kaleta was an interested party who could initiate the case. In doing so, the neo-judges extensively advocated a rigorous approach to the editorial office’s responses to the correction. It stated that, if the editorial office does not write a response to the request for the correction within seven days or does not mention all the allegations in it, then it would not be able to defend itself and present new allegations when the case goes to court later.
This is an extremely unfavourable interpretation for the media, contrary to the line of judgments of the legal Supreme Court judges to date. It means one thing: the failure of editorial offices to satisfy the strict formal requirements at the initial stage of the case rules out their chances in later lawsuits.
In order to satisfy the rigorous requirements, every editorial office would have to employ entire teams of lawyers who would respond extensively to each of the hundreds of requests for correction within a short seven-day deadline, many of which do not later end up in court.
It would be impossible for small, local editorial offices, which cannot even afford a lawyer to be present every day, to satisfy the requirements thought up by the neo-judges.
Neo-judges strike at the media
The judgment in the case initiated by the deputy minister of justice against Wyborcza.pl was issued by three neo-judges, namely people who reached the most important court in the country as a result of the changes introduced by the current authorities, through recruitments before the unconstitutional and politicised National Council of the Judiciary. It arises from the judgments of the international courts and the resolutions of the Supreme Court itself from the time when Professor Małgorzata Gersdorf was its first president that benches of neo-judges in the Supreme Court do not guarantee the right to an independent and impartial court, while their judgments are defective.
Spice is added to the case by the fact that Jacek Grela was the rapporteur in the case. He is not only a neo-judge of the Supreme Court, but also the former president of the Court of Appeal in Gdańsk, appointed in 2017 to this position by Minister of Justice Zbigniew Ziobro.
Could the former president nominated by Ziobro, now in the Supreme Court as a neo-judge, issue a verdict in a case filed by Ziobro’s deputy minister without any embarrassment? Did he guarantee independence and impartiality for the parties?
Under such circumstances, the judge should not have even touched such a case.
‘This is why the heist on the Supreme Court was necessary. To win all cases of this kind through their ‘own people’. And to simultaneously push through a novel line of judgments on correction which are unfavourable for the media. Its consequences will be devastating for editorial offices. Kaczyński and Ziobro have never appreciated free and independent media which are critical of the authorities. Meanwhile, this judgment of the neo-judges, which is scandalous in every respect, is a desirable stage for them on their way to completely destroying the free media in Poland,’ assesses Roman Imielski, deputy editor-in-chief of ‘Wyborcza’.
Ziobro’s former president
This is not the only example of the neo-judges of the Supreme Court striking at the media. In December 2022, three neo-judges also opted for making it more difficult for editorial offices – as early as at the pre-trial stage – to defend themselves in proceedings on correction.
A judgment was passed in the case of the state treasury – minister of justice against the editor-in-chief of TVN24.pl and applied to materials on the register of paedophiles. The minister of justice demanded a correction of the statement commenting on the case of Joanna Scheuring-Wielgus, an MP from the Left party, but lost the case in both instances in a final judgment.
The courts held that the statements quoted in the materials did not refer to facts and were of an evaluative nature. Additionally, they ‘arise from freedom of speech and cannot be censored.’
However, the minister of justice filed a cassation complaint with the Supreme Court and won. The judgment, which was favourable to the head of the ministry of justice, was issued by three neo-judges; the rapporteur was again Jacek Grela, former president of the Court of Appeal in Gdańsk nominated by Minister Zbigniew Ziobro. In their justification, the neo-judges pushed through a new line of judgments that was unfavourable for the media. It arises from this that the seven-day deadline for responding to requests for corrections will become final for the editor-in-chief; so-called tacit refusal to make the corrections or present only some of the allegations at the pre-trial stage will be inadmissible.
The new restrictive approach means that the editorial office has to present all the objections to every request for a correction received within just seven days as early as at the initial pre-litigation stage. If it does not do so, it will not be able to successfully defend itself in court and will lose the case.
‘The matters can be overturned’
‘This proves that the takeover of the Supreme Court by the neo-judges gives them a guarantee that even cases that have been lost with a final judgment before legal judges can be overturned and put back on the track which the authorities want,’ believes Roman Imielski, deputy editor-in-chief of ‘Wyborcza’.
Importantly, in an almost identical case regarding the material on the register of paedophiles and Joanna Scheuring-Wielgus’s statements, legal judges in the Supreme Court dismissed Zbigniew Ziobro’s cassation complaint against TVN in October 2022.
In the ‘Wyborcza’ cases regarding the article on the register of paedophiles, the Supreme Court passed judgments that are favourable for the editorial offices, when legal judges of the Supreme Court were adjudicating in the benches.
In one of the cases, it was acknowledged that the state treasury – the ministry of justice cannot sue in a case of this type at all, whereas, in another case, Zbigniew Ziobro’s cassation appeal was rejected for consideration.
In contrast with the ordinary courts, there is no drawing of judges by lots in the Supreme Court. Theoretically, cases are assigned alphabetically in the order in which they are received, but some participants feel that the system of appointing case officers is reasonably unclear. By a strange coincidence, many proceedings regarding Ziobro’s ministry go to Ziobro’s former president – Jacek Grela.
The article was published in Gazeta Wyborcza, June 20, 2023.