A reorganisation that will enable the managerial positions to be filled by neo-judges is being planned by Małgorzata Manowska, who is acting as the first president of the Supreme Court, as well as Professor Joanna Misztal-Konecka, who is acting as the president of the Civil Chamber. Both are neo-judges in the Supreme Court, namely judges nominated by the new, politicized National Council fo Judiciary, whose legality the European Court of Human Rights and the EU Court of Justice have contested. We are writing that they are “acting as” presidents because they were selected in a procedure that can be subject to serious legal defects. And the legality of their selection can be contested on this basis.

We established that the plan to reorganise the Civil Chamber has already been prepared. The Board of the Supreme Court, which participates in making some of the decisions in the Supreme Court, will vote on it on 15 December 2021. Meanwhile, the actual reorganisation is to be conducted on 1 January 2022.

We haves learned that the old, legal judges of the Supreme Court will protest against the reorganisation. Although they currently have the majority in the Civil Chamber, after the reorganisation they will lose their influence over decisions made there.

The reorganisation of this chamber is another stage in the seizure of power in the Supreme Court by the neo-judges of the Supreme Court. They already have the post of First President of the Supreme Court – the President appointed Małgorzata Manowska, Minister Ziobro’s former deputy, to this post in 2020. The neo-judges make up the whole of the Chamber of Extraordinary Control and Public Affairs and the illegal Disciplinary Chamber, which were appointed by PiS.

There are also neo-judges in the old Chambers – the Criminal, Civil and Labour and Social Insurance Chambers. But here, they are still in the minority. However, they did manage to elect their own president to the Civil Chamber, namely Professor Joanna Misztal-Konecka. The old judges have presidents in the Criminal Chamber – Michał Laskowski – and the Labour and Social Insurance Chamber, headed by Piotr Prusinowski. 

How the neo-judges will take control of the Civil Chamber

The reorganisation of the Civil Chamber involves a complete revolution in its operation. Today, the Chamber is divided into five divisions. Each division receives cassation complaints from a given region of Poland. The case is handled from start to finish, namely from the so-called pre-trial stage to the moment the judgment is issued by a given division. The heads of the divisions are old, legal judges. These are Judges Dariusz Dończyk, Agnieszka Piotrowska, Karol Weitz, Grzegorz Misiurek and Teresa Bielska-Sobkowicz.

Only three new divisions are to arise after the reorganisation. Cases will be submitted to them not according to regional jurisdiction, but according to subject matter jurisdiction. And the following are be created:

Division I. This is where cases from all over Poland will be filed, and this is where judges will handle the so-called pre-trial stage. In other words, they will assess whether the matter has an important legal problem and is suitable for consideration by the Supreme Court. This division will have the most work and the largest number of cases to deal with.

Division II. This is where cases will be transferred from Division I after having gone through the pre-trial stage and having been accepted for adjudication by the Supreme Court.

Division III. This division will deal mainly with the resolution of legal issues. In other words, it will create the line of judgments.

The establishment of the new divisions means that the current heads of the divisions will lose their posts. It is being said behind the scenes that the new divisions will be headed by neo-judges.

It is speculated that Department I will be headed by Tomasz Szanciło, Department II by Marcin Krajewski, and Department III by Kamil Zaradkiewicz. The last of these worked for the legal Constitutional Tribunal for years. At that time, he received a position in Zbigniew Ziobro’s ministry of justice. He was appointed with Ziobro’s personal support to the Supreme Court by the new, politicised NCJ. Krystyna Pawłowicz, then a PiS MP, strongly opposed his promotion.

Zaradkiewicz became famous in the Supreme Court by submitting legal questions contesting the status of the legal judges. He was also briefly acting First President of the Supreme Court, or President Duda’s so-called commissioner. Zaradkiewicz was to select candidates to succeed President Małgorzata Gersdorf. He became famous for disregarding the motions of the old, legal judges. However, he did not finish the elections, because he resigned. Even so, during his short reign in the Supreme Court, he managed to decommunise the gallery of First Presidents of the Supreme Court and he unfroze the work of the illegal Disciplinary Chamber.

The old judges will boycott the Board

There are concerns that the reorganisation will bring chaos to the Civil Chamber for several months. Because case files will need to be transferred and re-registered. Questions are being raised as to whether the reorganisation will mean a reallocation of cases to judges and the transfer of old, legal judges to mainly hear cases before the courts.

‘There will be chaos. The changes are supposed to take effect from 1 January and it is now the middle of December and it has not yet been adopted. The reason officially given for the reorganisation is to free up the posts of the current heads of the divisions, who will be moved to full adjudication. But these heads manage all these cases in terms of whether all the formal requirements are satisfied. Who will do that now? Will there be uniform rules?’ a person familiar with the work of the Supreme Court behind the scenes tells us.

He adds: ‘Furthermore, how will the new heads of the divisions be appointed? They are appointed by the First President of the Supreme Court, but they have to have an opinion from the Assembly of Judges of the Chamber. When will it be called? But this opinion is a necessary requirement. These changes are about one thing. To dismiss the current heads, appoint neo-judges in their place and pacify the old, legal judges.’

The reorganisation of the Civil Chamber proposed by Professor Joanna Misztal-Konecka is to be voted on by the Board of the Supreme Court on Wednesday 15 December. But the old judges of the Supreme Court have already announced that they will not take part in it because their condition has still not been satisfied. That is, the CJEU rulings of July 2021 resulting in the suspension of the illegal Disciplinary Chamber have not been implemented.

If the old judges do not attend the Board meeting, there will not be a quorum for passing resolutions. They can be voted on if 2/3 of the members of the Board are present and the old judges have half the votes in the Board. However, Małgorzata Manowska may try to get around this. Previously, when the old judges did not attend the Board meeting, she organised voting by circulation. And if someone did not cast a vote, she treated this as them having abstained from voting.

‘That was illegal,’ the president of the old, legal Chamber of Labour and Social Security of the Supreme Court, Piotr Prusinowski, tells us. And adds: ‘Whoever proposes these changes [the reorganisation of the Civil Chamber – ed.] has no idea about the work of the Supreme Court. About 5,000 cases will be filed with the new Division I. Some will be transferred to Division II and Division III. There will be chaos. Division I will have to process all the cases on its own; it will not be able to do so.’ President Prusinowski believes the objective of the reorganisation is to ‘get rid of the current heads of divisions and appoint new ones from among the new Supreme Court judges.’

Press officer of the Supreme Court: the reorganisation of the Chamber will improve its work

According to the Rules of the Supreme Court imposed by President Andrzej Duda, the head of a division of the Supreme Court primarily organises the work of the division. He also performs tasks ordered by the First President of the Supreme Court. He also issues orders, receives correspondence, grants permission to inspect files, sends files to the relevant court or orders their release to the relevant institutions, controls the work of the division’s secretarial office, and notifies the president of the Supreme Court about any differences in adjudications.

We asked the press officer of the Supreme Court, Aleksander Stępkowski (who is also a neo-judge), about the reasons for the reorganisation of the Civil Chamber. We asked whether the current heads of divisions would be dismissed, whether judges would be assigned to new divisions, and whether cases would be reassigned to judges.

The press officer responded to the questions by e-mail. He explains that Professor Joanna Misztal-Konecka requested the reorganisation. ‘In the justification of her request, she referred to the results of an analysis of the workload of the current divisions of the Civil Chamber, the receipt of cases, the workload of the secretariat staff of the individual divisions and judges, and the provisions of the regulations regarding the responsibilities of the heads of the divisions,’ Stępkowski writes in his response to our request.

And continued: ‘She pointed out that the current allocation of tasks of the divisions in the Civil Chamber is primarily based on a territorial criterion, while the staffing of the divisional secretariats is not correlated at all with the number of cases that flow into the individual divisions. Also, the inflow of cases into individual divisions varies dramatically.’ Stępkowski states that one division received 1,500 cases in 10 months of 2021, while another received 700.

‘Such significant disproportions in the workload of the divisions and the reduction in the range of duties of the heads of the divisions regarding the preparation of cases for examination by transferring these activities to the judge rapporteurs – taking into account the huge backlog of cases in the Civil Chamber – encouraged the President of the Chamber to present a proposal for reorganisation based not on the territorial criterion but on the problem criterion,’ the press officer asserts.

He adds: ‘According to the President of the Chamber, this will enable, among other things, a much better organisation of the work of the court secretaries, the concentration of identical activities in one division favouring the specialisation of employees and their more efficient and faster fulfilment, as well as the development of uniform standards for keeping case files and controlling the examination of cases in accordance with the order in which they are received.’

The president of the Chamber may choose colleagues

In his response, Press Officer Aleksander Stępkowski makes the assurance that the reorganisation has been deliberately planned for now so as not to cause ‘perturbations’ during the calendar year. When asked about the dismissal of the current division heads, he replied:

‘The heads of the divisions should have the confidence of the President of the Chamber, because it is with them that he will work on day-to-day basis. For this reason, in accordance with the rules of the Supreme Court, the First President of the Supreme Court has the right to appoint and dismiss the heads of the divisions in the chambers, as well as the deputy heads of the divisions in the chambers at the request of the President of the Supreme Court managing the work of the given chamber, whereby no additional conditions are attached to these personnel changes.’ However, there is one condition – the appointment of the new heads of divisions must be approved by the Assembly of Judges of the Civil Chamber.

The press officer emphasises that the judges will not be assigned to the new divisions. Just as currently, they will be assigned to examine all matters – from all divisions – in alphabetical order. There will also be no reassignment of cases, despite their re-registration.

The backlog in the Civil Chamber of the Supreme Court currently amounts to 3,500 cases. Cases wait up to a dozen or so months for pre-trial hearings, while cassation appeals require more than two years to be heard.

The backlog in the Civil Chamber of the Supreme Court currently amounts to 3,500 cases. Cases wait up to a dozen or so months for pre-trial hearings, while cassation appeals require more than two years to be heard.

Cases are currently examined by 22 judges. The backlog is, among other things, the fault of the current authorities, which waited until a new, political NCJ was appointed before making new appointments to the courts.

The new NCJ consists mainly of judges who decided to cooperate with the minister of justice. The Council appointed in this way frequently gives nominations to ‘its’ judges. It was also the Council that gave nominations to the new judges of the Supreme Court. But even the appointment of the new NCJ staffed by PiS and Kukiz 15 did not solve the problem of the lack of judges in the Supreme Court. Because the recruitments to the old, legal Chambers are dragging on. They also depend on the president, who announces recruitments and makes decisions on the number of judges in the Supreme Court.

There is also another problem. The legality of the new judges of the Supreme Court is being questioned by the ECtHR and the CJEU. Their rulings are being overturned for this reason. This is an additional element of the chaos that the current government has introduced into the Supreme Court with its ‘reforms’.

How PiS prepared to take control of the Supreme Court 

PiS planned the takeover of control of the Supreme Court by the neo judges, repeatedly amending the Act on the Supreme Court. PiS wrote in it exactly how the new president of the Supreme Court, who replaced President Małgorzata Gersdorf in 2020, was to be chosen. The provisions were designed in such a way that President Andrzej Duda could choose a neo-judge from among the candidates.

And this is what happened. Małgorzata Manowska became the new First President of the Supreme Court, whose candidacy was chosen in a procedure that disregarded the motions and voices of the old, legal judges. At that time, the only candidate who received the support of the majority of the Supreme Court judges was Professor Włodzimierz Wróbel.

PiS later copied the procedures of electing the first president in another amendment to the Act on the Supreme Court setting out the rules for electing the presidents of the Chambers. This amendment and the new Rules of the Supreme Court – which were imposed by President Duda – also gave more rights to neo-judges to control the process of selecting candidates.

Consequently, the neo-judges – with a strong vote of opposition and legal arguments from the old judges – pushed through Professor Joanna Misztal-Konecka (replacing Dariusz Zawistowski) as president of the Civil Chamber.

However, there are still more old judges in the Supreme Court. But their voice was taken away because, since her election, Manowska has not called an Assembly of Judges of the Supreme Court, which is the self-government of the judges of the Supreme Court. The official reason is the epidemic. But it is a convenient excuse to silence the self-government of the Supreme Court judges. Manowska might also be concerned about being criticised and about harsh resolutions regarding the changes introduced in the Supreme Court.

It cannot be ruled out that Manowska will call an Assembly – even despite the epidemic – when the president appoints more neo-judges to the Supreme Court and they gain a majority in the Assembly. But there is also another possibility. Minister of Justice Zbigniew Ziobro wants to abolish the Supreme Court, which is applauded by PiS President Jarosław Kaczyński. A shell Supreme Court would be created in its place, staffed with trusted judges.

However, for the time being, these plans are being blocked by President Andrzej Duda. Małgorzata Manowska also opposes the abolition of the Supreme Court.

Translated by Roman Wojtasz

The article was published at OKO.press, December 23, 2021.