Text by Anna Wójcik

Presidential elections in Poland will be held in 2020. At the moment, incumbent president Andrzej Duda is the frontrunner. So far, has he tried to show his conciliatory, moderate side during the campaign.

However, the day after the EU Court of Justice announced its ruling in response to referrals for preliminary rulings Labour Law and Social Security Chamber of the Supreme Court, President Duda was practically shouting while delivering a tirade against the judges of the Supreme Court at a meeting with voters on 20 November in Brojce. In a militant mood, he sought to turn his audience against the judiciary.

He began by saying that “the justice system in Poland should be fixed so that people stop saying that the courts in Poland are biased and dishonest.” After four years of rule by PiS, “judicial reform” – a response to the demands of citizens – has still not been accomplished, because the third power continues to defend its privileges:

“When one of the three pillars of power wobbles, when it is dishonest, this means that fundamental, profound reform is absolutely necessary,” Duda said.

He continued:

“This reform is being carried out today, although many people are not pleased. Especially those who among the judges who were masters of the life and death of others.”

This was merely the prelude to his attack on the Supreme Court’s judges.

Declining to say their names, Duda declared the enemies of the “reform” to be “those people” who allegedly enjoyed performing the function of judge during communist times and did not like the rule of PiS.

“There are still many judges among these people who received their appointments from the communist authorities. They liked it then, but now they don’t like it.

“There is a group of judges in the Supreme Court who were not only members of the communist party before 1989, but there are also those among them who are stained by the fact that they were party officers during the time of martial law! As judges. Today, they are pretending to be honest and transparent justices!

“I will not hesitate to say this again and again: it is high time that such people left our judiciary once and for all, and cease threatening the citizens of Poland and our neighbours with their presence,” the President thundered.

How many communist-era judges remain?

As the lawyer and historian Stanisław Zakroczymski explained, in the People’s Republic of Poland the Supreme Court was under the total control of the PZPR (communist party). In fact, it was impossible to be a judge in the highest court without party affiliation. In 1990, the decision was taken to decommunize the Supreme Court.

The Supreme Court judges’ term of office was terminated, and the National Council of the Judiciary was entrusted with the appointment of completely new judges. As a result, there was not a single judge left in the Criminal Chamber; in the Labour Law and Military Chambers – one in each; and in the Civil Chamber – a few. Judge Adam Strzembosz became the President of the Supreme Court.
 
 

For years, key roles in the Supreme Court for years have been performed by people who have provided loyal service to democratic change. None of the Court’s judges has ever been convicted of lying in the course of vetting proceedings.

Zakroczymski states that in 2017, however, the Supreme Court had 10 judges who were on the IPN’s list of judges “obediently” adjudicating on political issues during the martial law period.

In turn, among the 23 judges who returned to the Supreme Court in December 2018 following the ruling of the EU Court of Justice, three adjudicated during martial law: Józef Iwulski, Waldemar Płóciennik and Andrzej Siuchniński. They all issued statements in connection with their activities at that time, and their explanations diverge from the black-and-white vision of history presented by Andrzej Duda.

Campaign against judges continues after CJEU ruling

Duda spoke in Brojce the day after the EU Court of Justice ruled in response to questions referred for a preliminary ruling by the Disciplinary Chamber of the Supreme Court.

The CJEU provided detailed criteria for evaluating both the Disciplinary Chamber of the Supreme Court and the new National Council of the Judiciary. The Luxembourg Court confirmed that issues of judicial independence are a matter of EU law.

The leading politicians of Law and Justice (PiS), the National Council of the Judiciary and the President of the Disciplinary Chamber of the Supreme Court considered – incorrectly – the CJEU ruling to be a victory. In particular, the Minister of Justice and Prosecutor General Zbigniew Ziobro received the CJEU ruling with enthusiasm, with the metaphor that the EU’s highest court “put the ball back in Poland’s court.”

The minister’s metaphor was misleading. After the CJEU judgement, the ball is in Poland’s court, but the referee has clearly stated that the game is played according to European rules. And the Court of Justice set out these rules precisely. This will allow the Supreme Court to assess the Disciplinary Chamber and the National Council of the Judiciary.

In mid-2020, the Court of Justice of the European Union will issue a judgment in a case brought by the European Commission against the model of disciplinary proceedings for judges. It will assess, among other things, the Disciplinary Chamber and the National Council of the Judiciary against the criteria listed in the judgment of 19 November.

Minister Ziobro’s enthusiasm was definitely premature, but compared to the president’s remarks he comes across as relaxed.

“The EU Court of Justice said essentially that Poles are supposed to rule on the justice system in their own country. Please do not give us political cases, cases that have a political subtext. Do not involve us in politics in Poland. And that the issues of Polish internal politics, especially when it comes to the functioning of the justice system, are something the European Court of Justice will not interfere in!” said Duda.

The President sought to mislead the voters. The CJEU confirmed that issues of judicial independence are covered by the EU treaties and the Charter of Fundamental Rights, and therefore are within its remit (we encourage President Duda to study the position of 13 organisations defending the rule of law in Poland, in which experts explain the significance and consequences of the judgment of the Luxembourg Court).

Next, President Duda went on to his main attack.

“I hope that nobody will dare to strike at the Polish justice system and leave it to remain a post-communist justice system, as it has been up to now.

“It is they, especially those who have sat on the Supreme Court for the last few decades, who are primarily responsible for the fact that the disciplinary system was essentially a fiction. In fact, it didn’t even exist.”

Duda stated that existing judges, including the leadership of the Supreme Court, had spoiled the judiciary, thereby insulting the Presidents of the Supreme Court after 1990, Adam Strzembosz, Lech Gardocki, Stanisław Dąbrowski and Małgorzata Gersdorf.

“Post-communism” is an extremely capacious idea. Historian Adam Leszczyński noted that when PiS politicians talk about “post-communism”, they simply mean their political opponents.

Duda also tried to defend changes in the model of judicial disciplinary liability. This model is the basis for the European Commission’s complaint against Poland for breach of EU law.

Duda encourages voters to dig into judges’ pasts

President Duda urged voters from Brojce to search the Internet for information about corruption scandals in the Supreme Court.

As TVN24 explained, this meant a conversation recorded and published on the Internet between Judge Henryk Pietrzkowski and Judge Bogusław Moraczewski from the Supreme Court, as well as correspondence between them. The talks concerned the case of businessman Józef Matkowski. Some media suggested that the conversation might have involved corruption.

Duda claimed that the old model for liability among judges – and the management of the Supreme Court – was to blame for the failure to resolve the case.

“This shows how sick the justice system of those people is. This has to change,” – summed up the incumbent president.

Duda finished pretending at moderate politician

Duda has stigmatized the SN judges before. In December 2018, in a Christmastime interview, he threw insults at the Supreme Court. He talked about judges “sometimes stained with communism” who “occupied offices, breaking the law”. However, this took place outside any election campaign.

It is hard to believe that President Andrzej Duda could really slander Polish judges with such passion and fervour.

Fortunately, Duda’s entire speech in Brojce was recorded. The fragment concerning the judiciary and judges of the Supreme Court begins at 15 minutes and 50 seconds of the recording.

For the first quarter of an hour, Andrzej Duda, a formally non-partisan presidential candidate, praised the achievements of the last four years of the Law and Justice party’s rule. He also promised the residents of the Gryfino district specific financial assistance, stressing that “this is not a joke”.

“We will really try to support you and I think that my colleagues, who know this land, who are from here, from the West Pomeranian region, they will indeed help you to get this money. You are standing before a great opportunity for development,” promised Duda.

He then appealed for participation in the presidential election. He said that, as before, in the case of elections to the European Parliament and parliamentary elections, he would not encourage people to vote for a particular party.

Andrzej Duda holds a PhD in law, defending his thesis at the Jagiellonian University. He specialized in administrative law. He was undersecretary of state in the Ministry of Justice and the Chancellery of the President of the Republic of Poland. In 2014, he was elected to the European Parliament. A year later, he won the presidential election. During his presidency, he has repeatedly violated the Constitution and other provisions of Polish law.

Recording from the meeting of Andrzej Duda with voters in Brojce on 20 November 2019.

[translated by Matthew La Fontaine]