The Codification Committee of Civil Law Calls for Changes in the Supreme Court Through a Special Resolution

The Codification Committee of Civil Law issued a special resolution advocating for changes in the Supreme Court (SC). The resolution was unanimously adopted by its members in mid-October 2024 but was only published recently.

The resolution reflects the Committee’s concern about the situation in the Supreme Court under the leadership of Małgorzata Manowska, a judge appointed through contested procedures (“neo-judge”), who currently serves as the First President of the SC. During her tenure, the authority of the SC has significantly diminished, with “neo-judges” presiding over most chambers and now constituting a majority within the Court.

The status of “neosędziowie” has been repeatedly challenged in rulings by the European Court of Human Rights (ECtHR), the Court of Justice of the European Union (CJEU), Poland’s legitimate Supreme Court, and the Supreme Administrative Court (SAC). Recently, the CJEU ruled that the “neosędziowie” from the SC’s Civil Chamber do not constitute a lawful court. Consequently, rulings issued with the participation of these “neosędziowie” can also be challenged, posing a direct threat to citizens’ rights.

The issue of the status of “neosędziowie,” including those in the SC, is set to be resolved legislatively. In principle, they are expected to lose their appointments, as they were conferred by the politicized and unconstitutional National Council of the Judiciary (“neo-KRS”), whose legality has also been invalidated by the ECtHR, CJEU, Poland’s legitimate SC, and the SAC.

The legislative framework for addressing the status of “neosędziowie” and reforming the SC is being drafted by the Codification Committee on the Judiciary and Prosecution, chaired by Professor Krystian Markiewicz (President of Iustitia). The draft is expected to be completed by December 2024.

The resolution of the Codification Committee of Civil Law supports urgent and decisive reforms in the SC. These changes are also demanded by judges across Poland, including legitimate SC judges. Justice Minister Adam Bodnar has announced similar reforms, including the elimination of the extraordinary complaint mechanism and the abolition of the Disciplinary Chamber and the Chamber of Professional Responsibility, both introduced by the Law and Justice Party (PiS).

The resolution also holds symbolic significance. It is chaired by Professor Marek Safjan (pictured), a former President of Poland’s Constitutional Tribunal and a former judge of the CJEU, who has a deep understanding of the significance of CJEU rulings regarding the “neo-KRS” and “neosędziowie” in the SC.

Professor Safjan has repeatedly stated that these rulings must simply be implemented. One necessary outcome is the abolition of the SC chambers whose illegality has been confirmed by both the CJEU and the ECtHR.

The Codification Committee of Civil Law underscores in its resolution that both chambers are special courts and are composed of defective “neosędziowie” from the SC. Furthermore, in the Chamber of Professional Responsibility—which replaced the illegal Disciplinary Chamber—judges were personally appointed by politicians, namely President Andrzej Duda and Prime Minister Mateusz Morawiecki.

The Committee also supports the abolition of the extraordinary complaint mechanism, which PiS enacted to overturn final court judgments. These complaints are handled by the Disciplinary Chamber, which is entirely staffed by “neosędziowie.” The Chamber is headed by Joanna Lemańska, a “neosędzia” and close associate of President Duda.

The Committee emphasizes that the extraordinary complaint mechanism has been used against opponents of the previous government. It was abused by the former Prosecutor General and Justice Minister Zbigniew Ziobro to overturn final judgments in ideological cases. Ziobro also used this mechanism against Lech Wałęsa and Judge Waldemar Żurek, a symbol of free courts. Ziobro filed three complaints against Żurek, seeking to overturn judgments favorable to him in disputes with his ex-wife, further persecuting Żurek, who was the most targeted judge in Poland under the PiS government.

Abolition of the Extraordinary Complaint Mechanism

The extraordinary complaint mechanism constitutes an unjustified exception to the concept of the finality of judgments, both in its negative and positive aspects. This institution has not been systemically integrated with other legal remedies for challenging final judgments in civil and criminal procedures. Moreover, the extraordinary complaint mechanism has historically been used as a political tool, particularly by the Prosecutor General.

Permitting the overturning of a final judgment, often long after it has been issued, cannot be accepted for systemic and constitutional reasons. Once a final judgment is rendered, it triggers a series of further legal and factual consequences, and any subsequent attempt to invalidate it often leads to additional legal disputes.

The removal of legally defective judgments should be achieved through instruments already provided for in civil and criminal procedure, ideally shortly after such judgments are issued. There is no justification for expanding the catalogue of extraordinary remedies with procedural instruments of similar character and legal construction.

It should be noted that the legal structure of the extraordinary complaint mechanism essentially mirrors the former “extraordinary revision” and its equivalents in so-called “people’s democracies,” modeled after the Soviet institution of the “supervisory complaint” (nadzorny protest).

In this context, the broad and discretionary nature of the grounds for filing such complaints must be critically assessed, as it poses risks to the stability of final judicial decisions. Granting the Prosecutor General, who also serves as the Minister of Justice and is thus an active politician, the authority to file extraordinary complaints creates a significant risk of instrumentalizing this mechanism, a risk that has materialized in practice (e.g., ECtHR judgment of November 23, 2023, case no. 50849/21, *Wałęsa*).

Allowing the Supreme Court, within extraordinary complaint proceedings, to verify factual findings undermines the stability of final court decisions and erodes the trust of legal participants in the finality of judgments.

The extraordinary complaint mechanism must also be critically evaluated from the perspective of the requirements arising from Article 6(1) of the European Convention on Human Rights (ECHR). Its adjudication was assigned exclusively to the Disciplinary Chamber (IKNiSP), whose status as a court meeting the requirements of Article 6(1) ECHR and Article 267 of the Treaty on the Functioning of the European Union (TFEU) has been questioned not only in national publications on the Supreme Court’s organization following the 2018 reforms but also in ECtHR and CJEU case law (see also remarks in Section II below). Consequently, the elimination of the extraordinary complaint mechanism from the legal system must be deemed necessary.

Abolition of the Disciplinary Chamber and the Chamber of Professional Responsibility of the Supreme Court

The existence of the Disciplinary Chamber (IKNiSP) and the Chamber of Professional Responsibility (IOZ) lacks substantive and functional justification and finds no support in Polish constitutional tradition.

Under the current model, the Disciplinary Chamber operates as a special court, in some respects superior to other chambers of the Supreme Court. Its primary role remains the re-examination of final judicial decisions (including those previously reviewed by the Supreme Court) based on broad and vague criteria.

In light of the proposed elimination of the extraordinary complaint mechanism—and disregarding the general lack of justification for the existence of the Disciplinary Chamber—its continued operation must be considered entirely unnecessary. Moreover, there would be no justification for the chamber’s existence even if it retained the remaining competencies currently assigned to it.

It must be emphasized that all judges serving in the Disciplinary Chamber assumed office through flawed nomination procedures involving the National Council of the Judiciary (neo-KRS), established under the Act of December 8, 2017, amending the Act on the National Council of the Judiciary and certain other laws (Journal of Laws of 2018, item 3).

As highlighted in the ECtHR judgment of November 8, 2021 (case nos. 49868/19 and 57511/19, *Dolińska-Ficek and Ozimek*), irregularities in the judicial appointment process undermine the legitimacy of the Disciplinary Chamber to such an extent that, as a result of the inherently flawed judicial nomination process, it neither possessed nor continues to possess the attributes of a “court established by law” for the purposes of Article 6(1) ECHR.

Similarly, in its judgment of December 21, 2023 (C-718/21, *LG*), the CJEU found that panels of the Disciplinary Chamber lack the status of an independent and impartial court previously established by law. Consequently, the existence of this chamber as an isolated organizational structure within the Supreme Court constitutes a systemic violation of fair trial standards.

The manner in which the Chamber of Professional Responsibility was established, combined with its composition and jurisdictional scope, also fails to meet constitutional and convention-based standards for a “court established by law.” In essence, this chamber represents a continuation of the previously existing Disciplinary Chamber, whose status as an independent and impartial court was directly challenged in the resolution of the combined Civil, Criminal, and Labor and Social Insurance Chambers of the Supreme Court dated January 23, 2020 (BSA I-4110-1/20) and in the CJEU judgment of July 15, 2021 (C-791/19, *European Commission v. Poland*).

The structural and systemic deficiencies of the Chamber of Professional Responsibility, including the lack of clear criteria for selecting its judges, the absence of a requirement for judges to consent to their appointment, and the inability for judges to resign from adjudicating within the chamber prior to the end of their term, have also been recognized in its own rulings (Supreme Court order of February 7, 2024, II ZIZ 14/23).

Finally, the delegation of ultimate authority over the composition of the Chamber of Professional Responsibility to Poland’s highest executive bodies (the President of Poland with the Prime Minister’s countersignature) and the entirely discretionary and non-transparent nature of these appointments, which included individuals who assumed judicial positions through flawed nomination processes, must be critically assessed.

This situation, combined with the overtly political nature of these executive bodies, raises legitimate doubts about the susceptibility of this chamber’s panels to external influences, including direct or indirect interference by legislative and executive authorities. As with the Disciplinary Chamber, this systemic flaw violates the right to a fair trial guaranteed under Article 45(1) of the Polish Constitution and Article 6 ECHR.

Considering that the creation of the Chamber of Professional Responsibility was merely an ad hoc and instrumental legislative measure intended to create the appearance of addressing judicial independence issues following the abolition of the Disciplinary Chamber, its continued existence lacks justification

This article by Mariusz Jałoszewski was originally published on OKO.press on November 13, 2024.