The heads of three departments in Poland’s Supreme Court have resigned from their positions in protest against the appointment of a judge to lead their chamber who was nominated to the court after government judicial reforms that have been found to be illegitimate by various court rulings.
Their decision is the latest development in a long-running dispute that has seen many “old” judges – appointed under the previous system – refuse to recognise the legitimacy of “new” judges appointed after the judicial reforms.
Thirty judges on Poland's Supreme Court – almost a third of those working at the institution – have declared they will not adjudicate alongside colleagues appointed after the government's judicial overhaul, which they say rendered such nominations invalid https://t.co/jsFW62gWih
— Notes from Poland 🇵🇱 (@notesfrompoland) October 17, 2022
At the heart of the dispute is the National Council of the Judiciary (KRS), the body constitutionally tasked with nominating judges to Poland’s courts.
In 2017-18, the KRS was reconstituted as part of the Law and Justice (PiS) government’s overhaul of the judiciary. Its members, previously chosen mainly by judges themselves, are now nominated mostly by politicians.
In December 2019, the Supreme Court found that, as a result, the “new” KRS “is not an impartial and independent body”. It then ruled the following month that judges nominated by the KRS since 2018 are illegitimate. Last year, it further found that the KRS is no longer consistent with the constitution.
Meanwhile, the European Court of Human Rights (ECtHR) has also ruled that the KRS is “unduly influenced by legislative and executive powers” and is “defective”. In 2021 Poland became the first country ever to be expelled from the European Network of Councils for the Judiciary
Poland has become the first ever country to be expelled from the European Network of Councils for the Judiciary.
The politicisation of Poland's council "blatantly violates judicial independence" and "undermines the application of EU law", found the ENCJ https://t.co/NFf2NJR0rV
— Notes from Poland 🇵🇱 (@notesfrompoland) October 29, 2021
Last October, thirty of the “old” judges on the Supreme Court – almost one third of those working at the institution at the time – announced that they would not adjudicate alongside colleagues appointed by the “new” KRS.
Now, three of the “old” judges have resigned as heads of three of the five departments in the court’s criminal chamber. They did so after Zbigniew Kapiński, a judge appointed by the “new” KRS and who has been at the Supreme Court for less than a year, was made head of the chamber.
“[Kapiński’s] selection makes it impossible for me to continue,” wrote one of the judges, Jarosław Matras, in a resignation letter quoted by news service Onet. He emphasised that, until now, heads of the criminal chamber were figures with long experience at the Supreme Court and who have earned the “respect” of colleagues.
The other two resigning judges, Waldemar Płóciennik and Tomasz Artymiuk, also cited Kapiński’s selection to lead the chamber as the reason for their decisions.
Trzech przewodniczących wydziałów w Izbie Karnej Sądu Najwyższego złożyło rezygnacje z funkcji.https://t.co/BIjKA0JOKG
— Janusz Schwertner (@SchwertnerPL) May 29, 2023
Matras described Kapiński’s selection by the president of the Supreme Court, Małgorzata Manowska – herself a “new” judge appointed in controversial circumstances – as “a kind of theatre in which the ending was already known at the time of the selection of the cast”.
Earlier this month, three candidates stood to lead the criminal chamber. Its current head, Michał Laskowski – an “old” judge – received the most votes, 13, from his colleagues, reports Onet. However, Manowska chose to appoint Kapiński, who received nine votes, instead, as she was entitled to do.
After that decision, Laskowski told legal news service Prawo.pl that he was disappointed but not surprised by the choice made by Manowska, who has “pursued a consistent policy” of choosing “new” judges for such positions.
The chief justice of Poland's Supreme Court has called on the EU to stop "bullying" Poland with demands for further changes to its judicial system.
"I get the impression that this is not about the rule of law," she said https://t.co/nXt7zRwZot
— Notes from Poland 🇵🇱 (@notesfrompoland) August 9, 2022
Laskowski noted that Kapiński has the shortest tenure of any judge in the criminal chamber and that, as an appointee of the “new” KRS, his “status has been undermined” by Supreme Court and European court rulings.
Asked if there are now effectively “two Supreme Courts” – one made up of “old” judges and the other of “new” ones – Laskowski agreed that “unfortunately we have exactly such a situation” thanks to decisions made by parliament and President Andrzej Duda.
News service OKO.press notes that the Supreme Court’s 46 “new” judges now outnumber the 44 legally “old” ones, and that they hold the leadership of and majority in two of its chambers.
– Czy ja dobrze rozumiem, że mamy obecnie dwa Sądy Najwyższe?
– No niestety, mamy taką sytuację właśnie – potwierdza sędzia Michał Laskowski, kończący kadencję prezes SN kierujący Izbą Karną.https://t.co/mh3MnoIYp9— Prawo.pl (@PrawoPLserwis) May 12, 2023
Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.
