Małgorzata Gersdorf, whose term as president of the Supreme Court of Poland ends this month, spoke with Notes from Poland’s editor-at-large Stanley Bill and deputy editor Maria Wilczek. Original Polish language version also available here and analysis of her remarks here.
Maria Wilczek: For six years you’ve been the President of the Polish Supreme Court. Much has changed in that time. The Law and Justice party (PiS) have introduced far-reaching reforms. What do you think have been the most important changes to the judiciary?
MG: The first year of my term was relatively normal, because it was before the elections. After the elections I realised that the situation would change. Just how drastically, though, I couldn’t have imagined.
The most important thing at the beginning was the struggle for the Constitutional Tribunal. This was the start of a whole range of processes through which the ruling party sought to make judges dependent, turning them into functionaries instead of free judges. At present, we have a cardboard cut-out Constitutional Tribunal that always rules as the party wishes.
Next was the National Council of the Judiciary (KRS) – the scrapping of the old one and changes to appointment of its members, making them completely dependent on the justice minister. Even before that, there was the prosecutor’s office, which also became dependent on Minister [Zbnigniew] Ziobro [who as well as justice minister is also public prosecutor general].
Then came further changes in the law on the Supreme Court, and the attempt to suspend judges aged over 65, including me. This didn’t succeed, but it took a lot of engagement from citizens in demonstrations. Other changes to the common courts have succeeded, mostly involving their complete subordination to the justice minister. We no longer have independent courts or a third branch of government, independent of the executive.
The most significant of all the changes has entailed new disciplinary proceedings against judges. This has involved the creation of the disciplinary chamber of the Supreme Court, a court within a court – as we call it, a “special court”.
Unfortunately, I cannot say that I am leaving the Supreme Court in a good state. It was in a very good state when I took it on. It was an excellent organisation with magnificent judges. At present, there’s a lack of judges in the old chambers – for example, around ten are missing in the Labour Chamber. It’s in disarray. Adjudication will be delayed – whereas previously the waiting time for a pre-trial was a year, now it will be two years.
Stanley Bill: Is the situation now at the stage where there is potential for direct political interference in individual trials in Polish courts?
MG: Not yet. Because there are very many independent judges who have the moral law within themselves, as they say. But this disciplinary proceedings mechanism that is being initiated is causing a freeze. Most judges in lower instances are women. They are not warriors. They’re women who want to do their job well, so these threats of disciplinary proceedings could leave them immobilised in their freedom to adjudicate.
I thought that the European Court of Justice (ECJ) in Luxembourg would adjudicate sooner on the disciplinary chamber of the Supreme Court. I know now is not the time, because the whole world is fighting a pandemic, but that would allow us to look to the future with a little more satisfaction.
SB: So there’s a serious threat, but it’s not the case that citizens don’t have the right to a fair trial in Poland at present?
MG: No, at present they still do. As long as there are free judges, they do. But the increase in disciplinary proceedings could mean that they won’t be at ease as to whether a sentence is fair or whether there are any other factors behind it.
MW: In this context, the trial of Judge Igor Tuleya, which was to take place on 20 March, but was postponed: what precedent would that create for judges who might want to give an opinion unfavourable to the government?
MG: The session concerning Judge Tuleya’s loss of immunity has been postponed for now. We’ll see how that develops. For now, the Supreme Court is not ruling on these cases or any others – only urgent ones: excessive length of proceedings and electoral matters.
As for Judge Tuleya, I hope it will be delayed, and that it won’t have an effect on his immunity. But perhaps that’s a vain hope.
MW: In December, you said that the law disciplining judges could contribute to Poland’s exit from the EU. Three months have passed, the European Commission has requested temporary measures. What does the spectre of Polexit look like now: is it realistic, and how could it come about?
MG: Maybe I said colloquially that it would lead to Poland’s exit from the European Union. But Poland would itself have to want to leave the EU. The EU doesn’t remove anyone. But it’s true that if our justice system does not conform to EU rules we will certainly find ourselves on the margins of the EU.
The government’s new law is there. The conduct of judges, which is absolutely counter to EU rules, is also there. This is happening, hence the complaint to the ECJ and the motion for suspension. But this is all getting dragged out, and disciplinary proceedings are being opened against judges for implementing the ruling of the ECJ. That is not very fair to them.
MW: It is well known that you disagree with these changes. But the Polish judiciary has many problems of its own…
MG: The judiciary was already struggling with excessive length of proceedings. “Good change” [the ruling party’s slogan for its reforms] will further lengthen proceedings, not shorten them.
The judiciary needs a big debate on the jurisdiction of courts: meaning the range of cases that only courts can deal with. We don’t have a developed alternative system for settling disputes. All the committees that could make a preliminary or definitive assessment of minor cases have been abolished, which is why everything takes so long. There are too many cases. One judge has 7,000 cases a year to “make up”. Look at a backlog like that. It’s impossible to deal with it.
The other factor is procedures, which in Poland are very friendly to defendants and the parties in a trial, because they are very attentive to human rights, the right to a fair trial, to appeal, to notice, etc.
SB: Polish society today doesn’t have the impression that the judiciary is citizen-friendly. Quite the opposite. Of course, government propaganda on public TV has reinforced these impressions, but they were already there. How is it possible that the judiciary’s procedures have been “very friendly”, and yet society has had the opposite impression?
MG: Society’s impressions were mostly shaped by the [government-inspired] billboard campaign against judges, and by the witch hunt of the legislature and the executive against the judiciary.
But it’s also possible that judges with so many cases heaped on them are not always friendly in the courtroom. They are exhausted, and, for example, don’t always explain their rulings adequately when reading the verdict. I can understand this, because there are too many cases. Judges in Poland don’t all have assistants or the right equipment. That can cause a certain irritability. It shouldn’t be there, but perhaps that’s why people think they’re unfriendly. However, the procedures are friendly.
SB: But why should a Polish judge have so many cases when Poland has more judges per 100,000 residents than other European countries – for instance, the UK or Germany? Where does this problem with cases come from?
MG: Strangely enough, it comes from our society’s belief that the court must rule and everything will be fine. An agreement with neighbours won’t be valid; you need to go to court. Businesses, especially state-owned, also like to have an office in court. Then nobody can accuse them of using money inappropriately in an agreement. That’s the first thing – everyone wants to go to court.
Poland is also a litigious country. People go to court over access easements, ransom strips, inheritances – everything. It’s always the court that has to adjudicate. And the courts in Poland were reputable and well-regarded after 1989. Therefore, the number of cases they ruled on continued to grow, because society had a positive opinion of them.
That has been destroyed. And this is really a crime against Poland, because the judiciary is the third branch [of government]. It has been irrevocably destroyed, for at least 20 years.
MW: Do you think that the changes in the judiciary could be reversed, and that this confidence could be restored?
MG: Society’s confidence could be restored over the next generations. It’s not the case that we can just bring in our own judges, and then everything will be fine. That’s not possible. Hard work is needed to gain this prestige in society. When I came to work at the Supreme Court, the judiciary had 46% trust among citizens, and MPs 10-12%. That shows how high the prestige of the judiciary was.
Now, when they ask who is right, Gersdorf or the government, in the dispute over the justice system, 70% of respondents say Gersdorf.
The situation can be changed, of course. I am certain that such a change will happen. But it won’t be a return to what was. That never happens after such revolutionary changes. Certain adjustments need to be made. Definitely the Supreme Court should have the same prestige as it used to, because it is the court of highest instance. This prestige cannot be squandered for short-term party goals.
SB: But what concrete steps can be taken to repair all the changes? Let’s say there is a new government after the next elections, with a new policy on the judiciary. What could they do? Change the KRS? Dismiss all the presidents and vice-presidents of common courts installed by Minister Ziobro? Wouldn’t that simply mean a further politicisation, this time from the other side?
MG: You suggest that a new government will also want to use these extraordinary instruments. And that’s the next danger. We don’t know who will be in power in a few years’ time and what intentions they will have. Yet these instruments will be available. Unfortunately, I’ve spoken about this a hundred times or more. Every authoritarianism always creates the desire to use these instruments.
What could be done quickly to avoid floundering on into unconstitutional actions? Certainly, changing the KRS, electing it in accordance with the constitution. Certainly, changing disciplinary proceedings towards judges by changing the structure of the disciplinary chamber. I’m not saying it can’t be called “disciplinary chamber”, although it was once a “department” – but it cannot be a court within a court. Changing this configuration of disciplinary proceedings, making them independent of the justice minister and changing the newly reshaped KRS will result in the next nominations being legitimate.
The problem is what to do about the nominations that have already been made – which is 700-800 judges. But the ruling party has had this problem for years, and this has been discussed since the ECJ’s first ruling on the judiciary. I said that the ball is in the court of the government, which should change the laws one way or the other. But the government doesn’t want to, because it wants to have courts that are friendly to it, and that is the most dangerous thing.
SB: But of those 700 judges, not all of them are friendly to PiS, are they? There are also many apolitical judges who just happen to have been nominated at this time, aren’t there?
MG: Certainly. But I have my own view on that. One doesn’t stand for office during a crisis. It’s the same thing as joining the Polish United Workers Party in communist times. You could say, “We’re joining so that there’ll be more decent people in there” – because there were such arguments – or you could say, “We’re not joining, we’re not taking part in this game.” I wouldn’t have joined.]
There is an original sin in their conception as judges, because they were appointed by the new KRS. I’m not saying they’re bad, but the system is bad. And the system undoubtedly needs changing.
MW: Onto a different subject. Since we’re talking remotely today – because of the empty streets and closed workplaces – as a judge, do you think it was legitimate for the government to introduce the current restrictions without declaring a state of emergency?
MG: Not really. I mean, we don’t protest, and we follow these restrictions because we fear for our lives and health. But they are such serious restrictions on freedoms that they should be implemented in accordance with the constitution in one of the states of emergency.
MW: Do you think, as [human rights commissioner] Adam Bodnar recently claimed, that the health minister’s decrees breach the constitution in their scope?
MG: Yes. But of course, we all know very well why this is being done. There’s such a push for the [presidential] elections, which will be in some way illegal and unfair in any case. [Note: declaring a state of emergency would require the elections to be postponed.]
SB: Illegal in what sense?
MG: I won’t answer that question, because the Supreme Court may have to adjudicate on the legality of elections. Perhaps I’ve even gone too far in that assessment. In any case, they certainly won’t be equal, because only some people can vote by post, while others cannot.
MW: Irrespective of the legality, I take it that you think the elections should not take place?
MG: Absolutely not – because of the lives and health of citizens. It’s playing with fire when you see what’s happening in the world.
MW: Let’s conclude with a summation of your term. Over the last few years, you’ve ended up in the firing line in a fierce battle with the government. I wonder how that has affected you personally, how it has changed you. You could not have expected what followed six years ago.
MG: I certainly didn’t expect it. I’ve certainly gone grey, but I dye my hair, so you can’t see that. I’ve certainly gained a thick skin.
I am not a politician, and I am not naturally inclined to take part in battles. I usually try to ease tensions, rather than to fight. It was an extraordinary situation, and it still is. I took an oath on the constitution and I must defend the constitution. I don’t have a third way. To be able to look at myself in the mirror, I have to behave as I do.
SB: Do you feel you weren’t prepared for this political battle? Have you made mistakes? For example, why did you refer cases in February to the new disciplinary chamber – that is, to a court that according to you doesn’t exist?
MG: Diplomatically and politically I wasn’t prepared for a battle. As for the disciplinary chamber affair, you’re talking as if I sent droves of those cases to it. I referred four cases. Two concerned situations that were already resolved when they came to me or had a date at the disciplinary chamber. And one or two concerned resumption of cases.
In those cases, I decided there was no point referring them to another, criminal chamber, since what was going to happen already had. In my view, I didn’t make big mistakes.
SB: But didn’t these referrals send mixed messages to people outside? On the one hand, the disciplinary chamber is supposedly not a legitimate court, and yet cases can still be referred to it.
MG: If a barrister sends me a petition on a given day of a trial, what can I do? Let me put it this way: if you do nothing, you don’t make mistakes. Perhaps I made mistakes, but not with those four cases.
SB: Because there was no choice?
MG: It made no sense. The case was already concluded. And other cases had been referred to the criminal chamber. As for other mistakes, I certainly made some, because I wasn’t prepared for a battle. However, I was prepared to manage a large institution, as I had previously been a vice-rector of the University of Warsaw and deputy dean for financial affairs.
MW: Are you considering further public activity in any new role?
MG: I’m still at the University of Warsaw, where I’m head of the labour and social policy law department. I think that’s enough.
MW: But what about public activity in the non-academic sense. Do you intend to remain involved in the battle for free courts in Poland?
MG: I think that for now I need to get my head together. I have another month in office, and I don’t know what will happen, because on top of everything else there’s the battle with the epidemic.
The interview took place on Monday, 30 March 2020, and was translated from its original Polish version by Ben Koschalka.
Main image credits: Adam Stępień/Agencja Gazeta
Maria Wilczek is deputy editor of Notes from Poland. She also contributes regularly to The Economist and Al Jazeera, and has also written for The Times, Politico Europe, The Spectator and Gazeta Wyborcza.