Polish top court backs PM Tusk in “revoked signature” dispute

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Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Poland’s top administrative court has ruled that Prime Minister Donald Tusk last year acted lawfully when withdrawing his signature approving a judicial appointment made by President Andrzej Duda after saying he had signed off on it “by mistake”.

The ruling, issued in July by the Supreme Administrative Court (NSA) but only reported this week, concerns a controversial case involving the appointment of a judge, Krzysztof Wesołowski, to oversee the election of the president of the Supreme Court’s civil chamber.

In August last year, Tusk countersigned Duda’s decision to appoint Wesołowski. That came as a surprise because he is one of what Tusk’s government call “neo-judges”, meaning they were illegitimately appointed after the former ruling Law and Justice (PiS) party’s overhaul of the judiciary.

Tusk quickly announced that he had countersigned the appointment “by mistake”. Two weeks later, Dariusz Zawistowski and Karol Weitz, two “old” judges on the Supreme Court’s civil chamber, filed legal challenges against both Duda and Tusk’s decisions to nominate Wesołowski, arguing their actions were unlawful.

Tusk then declared that, on the basis of that complaint, he had revoked his countersignature, a decision that was criticised by PiS and rejected by some legal experts, who argued that there is no legal provision for doing so.

Wesołowski was nevertheless appointed chair of the assembly, which re-elected Joanna Misztal-Konecka, also a “neo-judge”, as president of the civil chamber. Later, a lower court dismissed both complaints from Zawistowski and Weitz, saying it lacked the jurisdiction to rule on them.

However, in July, the NSA overturned the lower court’s rulings and discontinued proceedings, finding that the prime minister had successfully withdrawn his countersignature and that the president’s decision to appoint Wesołowski could be subjected to judicial review.

In the justification for its ruling, the court referred to a legal provision which allows public authorities, such as the prime minister, to resolve complaints internally through “self-review”.

Under the law, it argued, a body whose action or inaction is challenged may uphold the complaint within 30 days of receiving it, provided it does so entirely and in line with the complainant’s request.

The NSA found that Tusk’s revocation of the countersignature met these conditions, as he did so on the basis of a complaint from Zawistowski and Weitz and acted within the given timeframe.

“As can be seen from the above, the contested countersignature has been eliminated from legal circulation,” wrote the NSA.

Michał Jabłoński, lawyer for the two judges, welcomed the ruling. “The NSA’s decisions are consistent with our arguments and indicate that the first-instance court rulings we challenged were incorrect,” he told the Rzeczpospolita daily.

Jabłoński added that the revocation makes the presidential appointment ineffective.

“Without the countersignature, the president’s act appointing the chair of the assembly could not be effective,” he said. “The election held a year ago is therefore at least flawed and ineffective…[and] the position [of president of the civil chamber] is vacant.”

Misztal-Konecka, the re-elected president of the civil chamber, was in December the subject of a formal complaint from Waldemar Żurek, a former judge critical of PiS’s judicial reforms who was last month appointed by Tusk as justice minister.

Żurek accused Misztal-Konecka of exceeding her powers by unlawfully changing the judicial panel that was handling an appeal he had filed with the Supreme Court. He alleged that she arbitrarily replaced legally appointed judges with “neo-judges”, including herself, reported investigative news outlet OKO.press.

Żurek also submitted a request for disciplinary proceedings against Misztal-Konecka, asserting that her actions may constitute both a breach of public trust and a criminal offence.

Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

 Main image credit: Kancelaria Premiera/Flickr (under CC BY-NC-ND 2.0)

Alicja Ptak

Alicja Ptak is senior editor at Notes from Poland and a multimedia journalist. She previously worked for Reuters.