text by Anna Wójcik

 
In the spring of 2020, the term of office of the incumbent First President of the Supreme Court ends. The General Assembly of Justices of the Supreme Court is to meet in March to select candidates from among whom the President will appoint a new person to the post.

Presidential elections in Poland will be held in the second half of 2020. The incumbent President Andrzej Duda, formally nonpartisan but associated with Law and Justice, is the favourite in the polls. After the parliamentary elections, Duda presented himself as a moderate, conciliatory candidate “above partisan divisions”.

However, following a judgment of the EU Court of Justice on 19 November, in which the CJEU presented criteria for assessing the independence of a court as understood by European law, and the reaction of the Polish Supreme Court and common court judges, the ruling camp decided to impose harsher disciplinary responsibility on judges.

On 20 December, the Sejm (the lower chamber of Parliament) adopted the proposed legislation, sending the draft bill to the Senate.

The day after the Sejm voted on the draft “subordination” bill, Andrzej Duda gave an interview to public – or rather, “government” television. On TVP Info, he made clear his unequivocal support for the changes being made by PiS in the Polish courts, particularly in the Supreme Court.

He offered a stupefying defence of the Supreme Court’s Disciplinary Chamber. He expressed full support for the subordination bill adopted by the Sejm. He was at pains to justify his two vetoes from 2017. He attacked, insulted and undermined the position of the First President of the Supreme Court. He would like to oversee and harshly punish judges. He stated that there is a “river of lies” flowing from Poland to abroad, questioning the judgment of the European Commission. He appealed to lawyers from abroad to refrain from engaging issues of rule of law in Poland, and rather focus on persecution of citizens in their own countries.

We quote and analyse the majority of Andrzej Duda’s remarks sentence by sentence. You can watch it in Polish here:

https://www.youtube.com/watch?v=9H3ULB8NAXo&feature=emb_title

President ashamed of Supreme Court chief

The most outrageous words came at the end of the interview, when the president decided to insult the incumbent First President of the Supreme Court, Małgorzata Gersdorf:

“First President Gersdorf goes abroad and says such things about Poland that it makes me ashamed that someone who calls herself the First President of the Supreme Court can say such things about Poland, even if only within the judicial community. It is shameful. Shame because of the person who was appointed First President of the Supreme Court. Maybe these are strong words, but my feelings are clear. This is an extremely sad situation for me as president,” said Duda.

He continued:

“Fortunately, in accordance with the regulations and timetable in force in Poland, a new First President of the Supreme Court will soon be appointed and I hope that the General Assembly of Justices of the Supreme Court chooses someone who will carry out this function responsibly.”

President Duda joked on TVP Info that he doesn’t know why “Judge Gersdorf is concerned” by the law subordination bill adopted by the Sejm, as if “someone was to bite someone else.”

According to President Duda, “the provisions in the legislation are designed to enhance the credibility of courts. They are supposed to reinforce the impartiality of the court, for example, by the fact that judges, as a rule, do not speak out on political matters, they do not express themselves politically. They do not take the side of a political group. (…) how can one have faith in a ruling on the validity of elections handed down by a judge whose political and ideological views are a matter of record, who has very often, unfortunately, offended politicians on one side of the political spectrum. It seems to me this is unimaginable in Western Europe.”

Duda went even further. He questioned the impartiality of the judges of the EU Court of Justice and issued a “challenge” to Gersdorf:

“Let Ms. Gersdorf tell us honestly what she thinks about the independence and the impartiality [of Court of Justice judges], since they are appointed by the governments of states, and since the governments of states are going to decide whether the judges remain in the CJEU for another term of office or not.

Where does Ms. Gersdorf think their independence and their credibility in the eyes of public opinion and state authorities come from? Tell us. I’m waiting for Ms. Gersdorf’s opinion,” he concluded with a long pause.

Duda brags of being asked for advice

The president also supported the draft adopted by the Sejm – formally a member’s bill – of the judicial “subordination” legislation. “Those are reasonable solutions, and I hope they will help get the functioning of the justice system, particularly the Supreme Court, back on the right track.”

He mentioned that he was asked for advice on a continual basis regarding changes to the legislation in the Sejm.

“This legislation is still in progress. Let us keep in mind that, for the time being, the law has been adopted only in the Sejm, and it will still be discussed in the Senate. The Senate will surely express its own perspective, because this House always has its own view. I will listen with great attention to what the members of the Senate have to say, and at the end I will make my own judgement.

However, I want to make it clear that those solutions discussed with me were reasonable, they would restore order to the Polish justice system. It is unacceptable for there to be some special professional group – because judges are a special group – but this means above all that judges bear a unique responsibility towards Polish society, towards the Polish state.”

A Christmas tale

The conversation about the judiciary lasted 45 minutes. It took the form of a master lecturing to his student, in which the interview Rachoń was the student, along with the audience. President Duda took an apodictic and moralising tone. He spoke with conviction and certainty.

The festively decorated hall of the Presidential Palace was the location of a particular Christmas tale: one of the presidential interpretation of the law, of rulings by the CJEU and Supreme Court, of the principles underlying the tripartite division of powers, and of judicial independence. One could almost forget that, in Poland, it is not the president but rather the courts which are responsible for the application and interpretation of the law.

President Duda began in 2018 during his Christmas and New Year’s interview giving encouragement to attacks on judges. These attacks sharpened at meetings with voters around Poland in 2019.

But the interview for national television breaks new ground. No one has yet dared to treat First President Gersdorf in this way, although Jarosław Kaczyński joked about her when it seemed in July 2018 that legislation authored by PiS would remove her from office.

Duda is running an election campaign targeting the base of the Law and Justice party. He is also expressing his fealty to the vision of politics forged in the PiS headquarters on Warsaw’s Nowogrodzka Street [the seat of PiS – editorial note] and in the Ministry of Justice – with a wink of the eye towards Minister of Justice and Prosecutor General Zbigniew Ziobro. This is the plan for winning the 2020 elections.

Or perhaps in the struggle for the legacy of Kaczyński already under way, Duda is seeking to return to the forefront?

The president’s vision of law and justice – Duda defeats anarchy

Let’s take a look at Andrzej Duda’s vision of the state, the law, and justice.

The first question asked by the journalist from TVP Info addressed the subordination bill passed by the Sejm.

In the president’s view:

“There’s a need, and I would even say it’s crucial, particularly in respect of those rulings and statements that have recently appeared in the media, by courts and by judges, where the meaning of the Court of Justice’s ruling has been warped through over-interpretation (…) of its wording, while glossing over its essence.

At the same time, there are attempts at de facto introducing anarchy into the country, which is unacceptable, and every reasonable citizen looking at this will say it should be stopped.”

The incumbent president – a lawyer, Juris Doctor, and adjunct at the Jagiellonian University – believes that judges should be deprived of the possibility to apply the law and implement the judgements of the EU Court of Justice and the Supreme Court when passing their own rulings, and should also be prevented from making public pronouncements, including on the matter of their own independence. By the same token, Duda rejects the definition of independence adopted by the Polish Constitution, the European Convention on Human Rights, and European Union law.

He wants judges to serve political masters, not to think independently and speak openly. He – and other politicians – usurp the right to present an interpretation of the law binding upon the courts.

A fifth column – how Duda and PiS shut down the rebellion

Duda also invokes the spectre of a judicial fifth column, which is supposedly creating anarchy across Poland. He suggests that “every rational citizen” would agree on the necessity of suppressing such a rebellion.

In fact, as First President of the Supreme Court Małgorzata Gersdorf judges, exactly the opposite is true.

It is the political class that is sewing anarchy in the Republic, while judges are protecting citizens from the legal chaos that results from the possibility of challenging judgments of the Constitutional Tribunal issued by judicial panels with judges who are not judges of the Constitutional Tribunal, and the possibility of challenging rulings issued by common courts judges recommended by the new National Council of the Judiciary.

Duda suggests that the new “subordination” legislation and broader changes in the judiciary are designed to speed up court rulings and the delivery of judgements in line with a vague “social sense of justice.”

The subordination law “is intended to ensure that the courts will return to the type of activity which, in accordance with the constitution and universal standards in force in democratic countries, should be pursued, that is to say, they should administer justice so that the state functions well and that people have a sense of justice.”

The draft subordination bill, which was adopted by the Sejm after some minor amendments were made, would implement solutions that are incompatible with the Polish constitution, international law and EU law. This has been clearly set out in expert opinions issued by the Supreme Court, the Commissioner for Human Rights, the Sejm Office of Legislative Analysis, deans of law faculties of 13 universities all over Poland, and the Helsinki Foundation for Human Rights.

The draft legislation contains no solutions that would accelerate the issuing of judgements by courts. Rather, it is designed to subordinate judges to political authorities through an even harsher system of disciplinary responsibility.

My vetoes weren’t for the judges, but for the employees of the courts

President Duda was at pains to explain his vetoes of two bills related to the judicial system in 2017. He maintained that his vetoes were not in defence of judges, but rather in the interests of administrative employees in the courts. He emphasised that his objective was to prevent the Minister of Justice and Prosecutor General from acquiring excessive control over judges.

He added:

“At the time I stressed very strongly that this absolutely does not change my belief that reform of the justice system, and particularly changes to the Supreme Court, are essential.”

Attacks on judges – demoralising eavesdropping

Having dealt (in his mind) with the inconvenient issue of the two vetoes, Duda began his tour de force: an attack on judges, particularly targeting Supreme Court justices.

The crowning example repeatedly invoked by Duda to discredit Supreme Court judges is the case of a conversation between Supreme Court judge Henryk Pietrzkowski and Supreme Administrative Court judge Bogusław Moraczewski, recorded and published on the Internet by TV Republika in 2014. They discussed, among other issues, cassation in the case of businessman Józef Matkowski. Some media suggested that the conversation involved corruption. During meetings with voters, Duda encouraged them to search the Internet for information on this subject.

In an interview for TVP Info, the president expressed criticism from moral and academic positions. He regretted that no criminal consequences were imposed on the judges, as the evidence incriminating them came from an illegal wiretap.

Polish law prior to 2016 imposed a ban on the use of such evidence, described as the “fruit of the poisonous tree.”

On public television, Duda did not seek to initiate an academic dispute, but to hit out at judges by generalizing and exaggerating an individual case.

“To this day, you can still listen to these recordings on the internet, read the transcripts of this shocking conversation between judges in which a Supreme Court judge is involved, and on whom no consequences have been imposed.

This is demoralizing for the entire judiciary. It’s socially demoralising. When we talk about people not trusting judges and courts. If people say that there is no justice in Poland and the courts function badly, it’s primarily because of such situations.

When they see the impunity of the judges, when they see that the judges are put above the law, that they consider themselves above the law, that they can do what they want.”

Punish judges before… the State Tribunal or disciplinary courts

Duda then returned to the issue of the alleged “anarchy” of judges, whose offense involves handing down judgments that do not please the political authorities. Duda went off like a rocket: he would like to punish judges for their verdicts the State Tribunal – an institution which politicians answer to for constitutional violations. And since this is impossible, he advocates the supervising and punishing of judges under a strict regime of disciplinary responsibility.

“Judges can rule as they please, as we have seen recently in a range od verdicts in which justices take advantage of the fact that there is no possibility to appeal against verdicts of the Supreme Court, no possibility to appeal against verdicts of the Constitutional Tribunal. That they can hand down verdicts contra legem, entirely in opposition to the law. That they can issue judgements running contrary to the principles of the Constitution. And there will be no consequences, because there is no mechanism for placing judges before the State Tribunal. Because so far, disciplinary responsibility has been an illusion.”

Defence of the Disciplinary Chamber. “Created with premeditation”

President Duda issued a stupefying defence of the Supreme Court’s newly established Disciplinary Chamber. The Supreme Court assessed it on the basis of criteria laid down by the EU Court of Justice, ruling on 5 December that the Chamber is not a court within the meaning of EU law.

Duda praised the alleged advantages of creating the new chamber in the Supreme Court. At the same time, he reproached the First President and Presidents of the other Supreme Court chambers and the entire judicial community. He said that the chamber was deliberately “created as a new chamber, yet independent of the President of the Supreme Court, with full premedication, precisely so that the First President of the Supreme Court and the other Presidents of the Supreme Court would not have any influence on the affairs of this Chamber, whether on staffing, finances, or the like.

That is why their independence is so strongly guaranteed. To make sure that these judges operate with the greatest possible freedom from external pressures, because those are the most dangerous.”

Przyłębska’s verdict as a cudgel

The President belittled the importance of the Supreme Court’s verdict from 5 December, at the same time questioning the intentions and legitimacy of the Supreme Court judges who issued it:

“This is a ruling by judges who were mostly elected by the previous [National] Council [for the Judiciary], which the Constitutional Court considered to have been appointed in violation of the Constitution. And their mandate should be doubted, we should say: ‘Wait a minute! Are you even judges at all?’”

Duda had in mind the verdict of the Constitutional Tribunal, led by Julia Przyłębska, of 20 June 2017 (case K 5/17), which ruled the individually counted terms of office of previous Council members unconstitutional. The verdict was supposed to justify the necessity of a new law on the Council and election of new members, which took place in 2018.

The President went on to criticise judges from the Supreme Court Chamber of Labour law and Social Security who ruled that the Disciplinary Chamber was not a court. He accused them of not being independent because they “operate under external pressure”.

“They say the same thing about their fellow judges, like the judges of the Disciplinary Chamber. They say that in their view, the Council was improperly elected because it is not de facto elected solely by the judiciary, although the professional groups provided for in the Constitution are represented in the Council today and a sufficient number of judges are also there. I believe that it is them [the judges of the Supreme Court Chamber of Labour Law and Social Security who issued the judgment of 5 December – editorial note] who are not independent. This is clear to see. For example, by such actions. Clearly, they are operating under external pressure.”

Duda lied about the charges levelled against the National Council of the Judiciary. The primary one is that 15 out of 25 people sitting in the Council were elected not by the judiciary, as the Constitution dictates, but by parliament.

Post-communist circles in the Supreme Court

Duda thanked TVP Info for revealing information about the past of Supreme Court judges who started their careers before the fall of communism in Poland.

“Everyone will be able to see how ossified this structure is. And why many people talk about what is called the post-communist system. Yes, it’s a system. A system that was created in the Supreme Court, which is now multi-layered, a good-old-boy network, it’s like this in many other ways.

Today, people in the legal and judicial milieu can de facto be divided into two groups. Those who want things to be the way they were. And among them there are those who carried party membership cards and those who did not, who boasted of belonging to the democratic opposition.

But they want things to be the way they were, to keep what was created after 1990, this specific arrangement of the mixing of communist judges with the judges who came later, who came to the judiciary from other legal professions. Where they got along, as it is among colleagues.”

Andrzej Duda foreshadowed a large-scale cleansing – perhaps a purge? – in the courts.

“Poland is to be a clean country, where there are certain moral principles in force, where there are certain norms that must not be violated. Where there are certain rules that a judge must follow, because if not, he will be expelled from the profession.

That a judge may not, for example, in any way go over the speed limit and then pull out his judge’s ID and demand that he be allowed to speed because he has immunity. And such situations take place very frequently,” Duda mused.

He went on to continue defending the Disciplinary Chamber and the strict punishment system for judges. “This Disciplinary Chamber was designed to take a second look at all cases involving violation of the law and ethical principles by judges. All such cases. So that there are no scandalous judgements, when a judge clearly commits a crime and judges are told that there was no crime.”

A river of lies, and an appeal to foreign lawyers

The President decided to direct public anger at Polish judges, who, in his view, are misleading the public and officials abroad.

“There is a river of lies flowing to the west of Europe from Poland about what is happening in terms of legislation about the judiciary. Ridiculous stories are being told, Poland is being demonised – by those groups who see that they are losing their influence.

These groups, which today are de facto trying almost to resolve the power struggle against the democratically elected authorities in Poland.”

Asked by the TVP Info journalist about criticism of the subordination bill coming from abroad, Duda (in an interview in Polish, on TVP Info) asked lawyers from other countries to focus on matters in their own countries and citizens “who are suffering from persecution.” He also appealed to lawyers from other countries to refrain from passing judgement on changes being introduced in Poland, because they allegedly do not understand the history and contemporary conditions of Polish democracy.

Power belongs to the sovereign

The President also offered an original interpretation of the idea of the tripartite separation of powers, based on the principle of subordinating all authority to the will of the sovereign. He suggested that it is the judges in Poland today who are usurping privileges above and beyond that of the executive and legislative authority – and not, as is actually the case, that it is the political power seeking to subjugate the judiciary.

Duda maintained that “the judiciary is trying to show the whole society and its elected legislature and executive authorities that it is stronger than those powers, that it has an advantage over them. If the power that is chosen by society in direct elections is to count for less than the power that is indirectly chosen, and that has so far been co-opted by the judicial milieu – well, I must say that we have departed quite a bit from democracy”.

When asked whether the principle that supreme authority belongs to the nation is realised in Poland, Duda replied:

“As president, I can objectively say that today we have a situation where a judiciary, headed by an unfortunately influential group of judges from the Supreme Court, is trying to prevent the public from implementing this very principle.”

The President apologises to Poland for its judges

“This is a very painful situation that the judicial community is trying to undermine the entire legal order in Poland and lead to de facto anarchy in precisely this legal sense. I can only apologize to Polish society for the fact that the judges are proving themselves to be irresponsible.

People who should be trustworthy are completely irresponsible. Guided solely by their own, private interest of a professional group, that is, the professional group of judges. But I believe that calm and consistent action will settle things down and we will restore the normal functioning of the justice system. First, by introducing reasonable legal solutions.”

According to the President, “if a judge violates the law, ethical norms, this is why we have responsibility, so that society knows that judges an group that is immune, elevated above all the norms, social principles, and groups that exist in our society. Judges are meant to provide an example of an honest life, of a reliable civic attitude.”

Duda also criticized the fact that judges take part in demonstrations together with politicians. He talked about the judges’ salaries and their retirement pensions, pointing out that most Polish pensioners could only dream of such sums.