In the past week, significant controversy arose regarding Prime Minister Donald Tusk’s countersignature on President Andrzej Duda’s decision to appoint a so-called “neo-judge” as the chair of the assembly of judges in the Civil Chamber of the Supreme Court, which is tasked with selecting a new President for the Chamber.

On Wednesday afternoon, Donald Tusk announced that his signature was a mistake that will not be repeated. This is an important declaration, as we explained in the initial articles on the matter of the countersignature, not only does this open the path to selecting a new President in the Civil Chamber, but similar situations may arise in other chambers of the Supreme Court.

On September 2nd, the term of office for the President of the Labor and Social Insurance Chamber, Judge Piotr Prusinowski, who is the last legally appointed judge to hold such a position in the Supreme Court, comes to an end.

The candidate for the new President of the Labor Chamber, like in the case of other chambers, should be nominated by the Assembly of Judges of the Chamber. However, the assembly has not been convened because the legally appointed judges, who still hold a majority in this Chamber, have declared that they will not convene until changes are made to restore the rule of law in the Supreme Court.

Why? The current law grants the President powers that exceed constitutional limits. It stipulates that the assembly selects three candidates from whom the President chooses the new chamber president. This also means that even with a majority of “old” judges, the neo-judges could still nominate one candidate from their ranks.

If by September 3rd there is no President in the Chamber, then according to the law, the oldest of the division chairs in the Chamber, legal judge Dawid Miąsik, will assume the role.

The President’s Preferred Acting President

However, the President intends to use the powers granted to him by the PiS government during the previous parliamentary term. Andrzej Duda plans to appoint an acting President in the Labor Chamber under Article 15(4) of the Supreme Court Act. This requires the Prime Minister’s countersignature, which, following the media uproar of the past week, is unlikely to agree to a neo-judge assuming this role.

Speculation among Supreme Court judges suggests that the President might propose Zbigniew Korzeniowski, a judge appointed to the Supreme Court before 2018, to the Prime Minister for this role. Korzeniowski currently adjudicates in the Labor and Social Insurance Chamber but is also a member of the Chamber of Professional Responsibility, to which he was appointed by President Andrzej Duda.

Korzeniowski gained attention in November 2023 when, sitting alone in the Chamber of Professional Responsibility, he refused to lift the immunity of Judge Maciej Nawacki.

The case concerned Nawacki’s disregard for the rulings of Bydgoszcz courts, which ordered him to reinstate Judge Paweł Juszczyszyn, who had been suspended for applying EU law.

In his ruling, Zbigniew Korzeniowski asserted that the Disciplinary Chamber, abolished by PiS, was a legal court, and that the rulings of European tribunals challenging its status were issued outside their jurisdiction. The judge also referenced rulings of Julia Przyłębska’s Constitutional Tribunal, which held that CJEU rulings on Polish courts are not binding.

Supreme Court judges expect that if Zbigniew Korzeniowski becomes acting president, he will convene the assembly, which will be attended by the neo-judges of the Chamber, who will then nominate three candidates, from whom the President will choose the new chamber president.

In such a scenario, even a boycott by the legal judges of the Labor Chamber will have little effect. The regulations state that two-thirds of the chamber’s judges must be present at the assembly. If this number is not met, a new assembly is convened, where only a simple majority is required. If that fails as well, the third assembly can proceed with any number of judges present.

What Will Donald Tusk Do?

On Wednesday, when Donald Tusk explained the countersignature in the Labor Chamber matter, he emphasized repeatedly that it was a mistake due to an oversight, stating that “the document involved the nomination of a neo-judge.” He pointed to Minister Maciej Berek as the one responsible for the oversight.

Indeed, the fact that it concerned a neo-judge was symbolically significant.

“Mr. Prime Minister, I am very pleased that you and Mr. President have decided to end the dispute over judges in Poland (…) I believe the act of legitimizing judges appointed after 2017, which you have undertaken, will permanently close this futile dispute,” wrote Dagmara Pawełczyk-Woicka, head of the neo-National Council of the Judiciary (neo-KRS), on social media.

However, the fact that the countersignature concerned a neo-judge is only part of the picture.

“The problem is not the neo-judge. The problem is the blatantly unconstitutional power of the President to appoint a ‘supervisor’ in the Supreme Court, a fact seemingly overlooked by both the Prime Minister and the lawyers working in his office (RCL),” commented Professor Włodzimierz Wróbel, a judge of the Criminal Chamber of the Supreme Court.

“The takeover of the Supreme Court by political appointees of the previous government involved creating, in blatant violation of the Constitution, statutory powers for the President to directly interfere with the organization and operation of an independent constitutional body, the Supreme Court.

Under these powers, the President imposed an internal regulation on the Supreme Court, mainly intended to incapacitate the General Assembly of Supreme Court Judges and create a way to appoint Professor Manowska as the First President of the Supreme Court.

The same mechanism was used to fill the positions of Chamber Presidents in the Supreme Court with their own people. To secure this process, the President also received the right to appoint his supervisors to oversee and carry out these ‘electoral’ procedures.”

The same issue was highlighted in an interview with OKO.press by the still-serving President of the Labor Chamber, Piotr Prusinowski.

Donald Tusk completely omitted the context of the contested presidential powers to appoint “supervisors” in the Supreme Court when explaining the countersignature on Wednesday.

This omission has not alleviated the doubts surrounding this matter within the judicial community. On Friday, August 30th, Onet journalists also published their findings, indicating that the Prime Minister’s ministers had previously rejected the President’s proposal to appoint neo-judge Małgorzata Manowska as a “supervisor” in the Civil Chamber.

“This suggests that the Prime Minister’s office was meticulously overseeing who was to receive the nomination. This, in turn, may undermine the claim that the agreement to Wesołowski’s nomination was simply a result of an accidental mistake,” the journalists wrote.

Text by Dominika Sitnicka published in OKO.press on August 30, 2024

Link to the article