President of a legal Chamber of the Supreme Court refuses to adjudicate with neo-judges: ‘I’m not afraid, I’ve chosen my fate’
Piotr Prusinowski, President of the Labour and Social Security Chamber, has issued a poignant and emotional statement explaining why he will not adjudicate with neo-judges of the Supreme Court. In it, he calls on the neo-judges to come to their senses and warns against dictatorship.
This is the first such individual statement by a legal Supreme Court judge. Judges of the ordinary courts had previously issued similar statements. The statement made by Piotr Prusinowski is dated 10 January 2023. The judge made it because he was drawn to a bench to perform two tests of independence and impartiality of Supreme Court Neo-Judge Kamil Zaradkiewicz and legal Supreme Court Judge Dariusz Dończyk.
However, Judge Prusinowski does not want to adjudicate in these cases, because the benches also included neo-judges of the Supreme Court. In other words, people appointed by the illegal and politicized neo-NCJ.
Małgorzata Manowska, a neo-judge in the position of First President of the Supreme Court, and the neo-judges with whom he was supposed to perform the test received Prusinowski’s statement.
Prusinowski is therefore showing other legal Supreme Court judges that they should not adjudicate on tests with neo-judges. He is also consistent. This is because he is one of the signatories of the declaration of 30 legal Supreme Court judges in October 2022, in which they declared that they would not adjudicate with neo-judges.
In his current statement, Judge Piotr Prusinowski refers to the historic resolution of the full bench of the Supreme Court in January 2020, in which the legality of the Disciplinary Chamber, the neo-NCJ and neo-judges was contested. He also refers to the rulings of the CJEU and the ECtHR, which also contested the status of the neo-NCJ and the nominations it was giving to neo-judges.
Prusinowski writes in his statement: ‘If I have any personal feelings, they boil down to purely begging – come to your senses, stop breaking the law, withdraw from issuing invalid judgments, most of you have achievements worthy of the Supreme Court, don’t go in the same direction as the politicians who want to create a dictatorship for us in Poland, don’t make it easier for them just to preserve your position – see what the Supreme Court and the Constitutional Tribunal look like today – these were institutions that were once respected; today, it is embarrassing to admit that you are a judge of the Supreme Court.’
Prusinowski emphasizes that the example today of how to be a real judge in difficult times is set by the district and regional court judges who apply the law at the cost of repression. Prusinowski defends them in disciplinary cases. And wins cases for them.
Prusinowski is also one of the defence attorneys of former Supreme Court President Małgorzata Gersdorf, who is being prosecuted by Piotr Schab, the extraordinary disciplinary commissioner. The former president is being prosecuted for the Supreme Court issuing the historic resolution of January 2020.
In his statement, Prusinowski writes that he will have a fourth disciplinary case for them. Because the Supreme Court’s disciplinary commissioner has received three motions for disciplinary action to be taken against him for his stance in defence of the rule of law and an independent Supreme Court.
One case applies to Prusinowski’s statements about the neo-judges of the Supreme Court. The commissioner refused to initiate proceedings, but Manowska appealed.
The second applies to his speech in the now former Disciplinary Chamber, where he spoke of ‘the Chamber’s vices’. The third applies to the fact that he prevented a neo-judge in the Labour Chamber from ruling in a three-person bench with legal judges.
‘I’m not afraid of repression. I have already chosen my fate. I don’t calculate, I don’t act under the influence of fear of disciplinary action.’ the president of the Labour and Social Insurance Chamber, Piotr Prusinowski says.
Judge Prusinowski’s statement (Full text, the sub-headings are from the editors)
In view of the importance of Supreme Court Judge Piotr Prusinowski’s statement about his refusal to adjudicate with neo-judges of the Supreme Court, we are publishing it in full:
1) Dr Hab. Małgorzata Manowska, First President of the Supreme Court 2) Prof. Dr Hab. Joanna Misztal-Konecka, President of the Supreme Court managing the Civil Chamber 3) Dr hab. Joanna Lemańska, President of the Supreme Court managing the work of the Chamber of Extraordinary Control and Public Affairs 4) Supreme Court Judges: Professor Jerzy Grubba, Dr Hab. Elżbieta Karska, Dr Paweł Kołodziejski, Prof. Dr Hab. Robert Stefanicki, Andrzej Siuchniński, Dr Hab. Igor Zgoliński.
Further to me being selected to the bench that is to adjudicate in cases III CB 19/22 and III CB 21/22 (registered in the Civil Chamber), I declare that I do not intend to participate and perform any procedural actions in these cases in cooperation with the judges appointed to the Supreme Court on the basis of the motion of the National Council of the Judiciary formed with the membership and in the procedure provided for by the Act amending the Act on the National Council of the Judiciary and certain other acts of 8 December 2017 (Journal of Laws of 2018, item 3) [namely with the neo-judges of the Supreme Court – ed].
At the outset, I would like to point out that my refusal to adjudicate in these cases does not arise from personal animosities or – as the presumably independent Supreme Court judges appearing in the ‘independent’ right-wing media rudely state – from ‘whimpering’. The motives for my conduct are purely normative and legalistic.
In the resolution of the full panel of the Supreme Court – the Civil, Criminal and Labour and Social Insurance Chambers – of 23 January 2020, BSA I-4110-1/20 (OSNKW 2000 no. 2, item 1 and OSNC 2020 no. 4, item 34), it was established that, in each case, the involvement in a Supreme Court bench of people who were appointed to the Supreme Court on the basis of a motion from the National Council of the Judiciary formed with the membership and in the procedure provided for by the Act on the amendment to the Act on the National Council of the Judiciary of 8 December 2017 [namely by the neo-NCJ – ed.] leads to the incorrect staffing of the court in the meaning of Article 439 § 1, item 2 of the Criminal Procedures Code or the conflict of the membership of that court with the provisions of the law in the meaning of Article 379 item 4 of the Civil Procedures Code.
This resolution was given the force of a legal principle. The position taken by the Supreme Court – which is binding on every judge of the Supreme Court, including the ‘new’ judges – makes joint adjudication impossible.
The wording of the Constitutional Tribunal’s judgment of 20 April 2020, U 2/20, OTK-A 2020 item 61 [in which Julia Przyłębska’s Constitutional Tribunal contested the legality of the resolution of the full membership of the Supreme Court, but it is a non-binding decision issued with the involvement of stand-ins – ed.], is not convincing and even confirms the validity of the actions I am taking.
Leaving aside the obvious absurdity of the theses pronounced in it – which, unfortunately, is increasingly frequently the standard nowadays – I would like to draw attention to the resolution of the Supreme Court of 5 April 2022, III PZP 1/22, OSNP 2022 no. 10, item 95, in which the relationship between the said resolution of the three combined Chambers and the said judgment of the Constitutional Tribunal is systemically explained.
For anyone who bases their logic on the assumption that ‘two plus two is four’, after reading this, it becomes clear that the judgment of the Constitutional Tribunal of 20 April 2020 did not nullify the effects of the resolution of the Supreme Court of 23 January 2020. Given the reasoning presented, the question arises as to how a judge appointed to a bench that includes people appointed to the Supreme Court in a defective, unconstitutional procedure, which was created instrumentally by the PiS politicians, is to behave.
Pretend that nothing has happened? Relativize the significance of the breaches of the law? Or perhaps hide behind a variety of legal tricks? Unfortunately, forgive me, I am not judging anyone, but I do not know how to do that. I have been dragged into naivety. I am almost certainly not reasonable, but I am certainly not alone.
Prusinowski about the ‘good change in the courts’
I have recently been viewing what the ‘good change’ in the judiciary looks like. To say that what has happened in the Disciplinary Chamber and is happening in the National Council of the Judiciary is a denial of fundamental justice – is an understatement.
I would like to recall this for two reasons. Firstly, the judges of the Disciplinary Chamber were selected by the National Council of the Judiciary on the same principles as the other ‘new’ judges of the Supreme Court. Furthermore, I can cite dozens of examples of glaring breaches of the law and disregard of fundamental values by certain, unfortunately numerous ‘new’ judges.
I think it is wise to say ‘the apple does not fall far from the tree’. In my opinion, it is precisely this thought that the legislator had in mind when ‘reforming’ the judiciary and the National Council of the Judiciary. Under these circumstances, adjudicating in ‘mixed’ formations, with a ‘nothing has happened’ smile on my lips, surpasses my ‘pro-state’ view of the profession. A ‘state person’ is not like grass swaying in the wind.
Secondly, and who knows if not most importantly, my attitude is shaped by other experiences with the Disciplinary Chamber and the National Council of the Judiciary. Opposites like to be ‘photographed’ together. Apart from the people I would prefer never to have met on my path, whose actions only confirm that they should never become judges, I have had the privilege of meeting many wonderful lawyers.
It appears that the presidents of the Supreme Court can learn a great deal from the district and regional court judges. Fidelity to the law, the lack of opportunism, tenacity in defending fundamental arguments, risking one’s career to defend the defendant’s rights, dignity, incorruptibility with promotions, modesty – these are the lessons I have learned while representing judges in disciplinary proceedings. Not empty words, but actions, not meaningless declarations, but real dedication.
These qualities are becoming more difficult to find by the day in the Supreme Court – the deficit is significantly inflating. Let me put it this way – I understood science. Since the resolution of the three combined Chambers is in force, and of this I have no doubt, any proceedings involving a ‘new’ judge are invalid. Therefore, I asked myself whether a judge should proceed knowing in advance that his verdict and the proceedings before it are invalid? Forgive me, I cannot answer this question in the affirmative – I do not have such a flexible legal conscience. Conformism is not my strongest point.
Translated by Roman Wojtasz
The article was published in Polish in OKO.press on