On Monday 27 January, judge Michał Kluska of the District Court of Łodź-Śródmieście ex officio adjourned a civil case that he had been adjudicating. He justified the decision on the ground that the result of the case was dependent on the outcome of another pending case. This is a permissible ground for adjournment under Art. 177(1)(1) of the Code of Civil Procedure.

In his written decision, the judge explains that he was appointed judge by the President in December 2017, on the recommendation of the new National Council of the Judiciary.

It is precisely these judges – promoted by the new Council – to which the historic resolution of the College of the Supreme Court applies. So far, the President has appointed 383 judges recommended by the new Council.

Judge from Łódź unsure of his status

In its resolution of 23 January 2020, the three combined Chambers of the Supreme Court – the Criminal, Civil, and Labour and Social Security – ruled that the judicial panels in which judges promoted by the new Council are sitting are improperly appointed. Therefore, grounds exist for questioning the legality of their judgments. This applies to judges appointed to common courts as well as to the Supreme Court.

However, judgements already handed down by judges promoted by the new Council remain lawful. Only judgements issued by such panels from Friday 24 January can be challenged, on condition that it is first demonstrated that they were issued by a judge who is not independent.

However, this does not apply to the Disciplinary Chamber – the full College of the Supreme Court ruled that all its decisions to date were unlawful. The resolution of the Supreme Court has the force of a binding legal principle, so it must be followed by all Supreme Court judges. It should also be observed by judges of common courts.

Judge Michał Kluska from Łódź complied with this resolution – he “suspended himself” until his status can be clarified. The Supreme Court, it should be noted, did not rule that the appointment of such judges is automatically defective. In the resolution, the Supreme Court stated that it must be examined in each case whether the defectiveness of a judge’s appointment by the new Council affects his impartiality and independence. Only afterwards can his judgements be challenged, and only those issued after 23 January.

That explains why Judge Kluska prefers not to take any risks and for the time being is refraining from issuing judgements so that they are not later overturned. In his decision, he wrote that he must wait for a written justification of the resolution passed by the Supreme Court. He also expects that the parties to the trial he adjourned will attempt to reverse the decision in the court of appeals. And this will determine whether Judge Kluska is impartial and capable of issuing lawful judgments.

For this reason, the president of the District Court for Łódź-Śródmieście has stopped assigning new cases to Judge Kluska, in order to wait for clarification of his status.

The Supreme Court, Katowice, Łódź. Who’s next?

Łódź is another court in which cases are being adjourned as a result of the application of Supreme Court’s resolution. On Friday 24 January, the day after the resolution was adopted, as many as 26 cases in the Supreme Court were dismissed that were being heard by judges from the Civil Chamber appointed by the new National Council of the Judiciary. Three cases in the Court of Appeals in Katowice were also adjourned.

Unofficially, it is being said that further cases will be postponed in the Court of Appeals in Katowice, because judges intend to adhere to the Supreme Court resolution.

The judicial community is appealing for the resolution to be implemented.

Calls for the new Council to stand down

In addition, Colleges of judges from courts in Słupsk and Kraków are demanding that the members of the new National Council of the Judiciary resign from their posts and suspend the process of issuing opinions for judges under consideration for promotion. The judges emphasize that those judges seated in the new Council were appointed in a manner incompatible with the Constitution (they were elected by members of parliament rather than by the judicial community, as under the old procedure). The Iustitia judges’ association has also issued an appeal calling for the members of the new Council to quit.