First, it is necessary to address points of order. The opportunity arises due to the nature of this case, but more importantly, because of the motions filed by the prosecution regarding the Supreme Court’s ruling. Such motions have been filed repeatedly over the past few decades. It is crucial to clarify that these motions lack any legal basis, as established by the case law of the European Court of Justice of the European Union (Order of 9 January 2024, Case No. C-658/22). However, the current situation reveals that some judges and lawyers do not fully respect this ruling, approaching European Court jurisprudence selectively. They accept decisions that align with their positions while disregarding those that contradict their views and theses.
The second point within this matter raises an important question, particularly after reviewing both proposals. The authors of this motion argue that a court consisting of judges Kapiński, Siwek, and Zgoliński does not meet the standards of autonomy, impartiality, and independence. Were it not for this motion, there would be no need to address these issues; however, they must now be addressed. We are dealing with a situation where two judges of the Supreme Court, who are part of this panel, previously served for 20 years in lower-instance common courts. In my case, due to my age and experience, I served for 32 years before being appointed to the Supreme Court, 22 of which were in the Court of Appeal. When I read such motions, or the decisions of other judges, I ask myself: how do the authors of these motions, or those who claim that judges appointed to judicial positions after 2018 lack the qualities of independence and impartiality, define these principles? Do the qualities of judicial independence and impartiality depend on when and under what composition the National Council of the Judiciary evaluated a candidate for a judicial position, including appointments to the Supreme Court? Regarding my own career, I received four positive opinions in 1992, 1996, 2001, and 2022. In 2018, however, there was one negative opinion. Similar opinions, both positive and negative, have also been issued in the cases of other judges.
One may raise a question in such a situation. I have served as a judge in the Court of Appeal for 22 years, presiding over cases of the highest significance and greatest complexity—not only economic matters but also cases involving high-profile individuals, including politicians featured on the front pages of newspapers. For the record, I have participated in vetting proceedings involving two presidents, two prime ministers (including the current one), several ministers of justice, members of parliament, senators, and other politicians. Both the authors of this motion and those who include similar assertions in the reasoning of their rulings may be asked: what determines a judge’s independence? The Constitutional Court, in a series of rulings shaping its jurisprudence over the years, has identified five criteria that establish judicial independence.
Judicial independence, in the constitutional sense, consists of several elements: impartiality towards the participants in the proceedings, independence from non-governmental bodies and institutions, independence from government authorities and other judicial bodies, freedom from the influence of political factors, especially political parties, and internal independence of the judge.
Another question may be raised: Does participation in a particular competition before the National Council of the Judiciary deprive a judge of these qualities, suspend them, or make them disappear completely or for a certain period of time? Recent proposals suggest that judges who return to their previous positions may regain independence that was allegedly lost. The argument appears to be that judges are not independent now, but once a judge from the Court of Appeal returns to a district court, he or she will become independent again. Similarly, for judges of district courts. But is this what judicial independence truly entails? It should be made clear that it is not. Independence is a character trait. It does not depend on which body the judge appeared before or which body provided an opinion. Nor does it depend on which president appointed the judge.
Independence is a personal quality that imposes upon the judge the duty to decide cases fairly, lawfully, and to take responsibility for that decision according to their conscience. This is an individual responsibility—there is no collective responsibility in this matter. In over 30 years of adjudication, no one has ever challenged a ruling in which I was involved. Now, however, it appears that, after 22 years of service in the Court of Appeal and three applications for delegation to the Supreme Court—none of which were granted by the then Deputy Minister of Justice, without a single sentence of justification—I am no longer considered independent. And I am left to wonder: at what point did this change occur?
This highlights the futility of such claims and lines of reasoning. The assertions regarding the lack of autonomy and independence of judges have no foundation, either in the jurisprudence of European tribunals or in that of domestic courts, including the Constitutional Court and the Supreme Court. The only exception is the recent opinions formed by a group of judges who, without any legal basis, question the status of other judges. Crucially, there is no indication in the jurisprudence of European tribunals that these bodies have ever explicitly challenged the status of judges appointed after 2018. No ruling supports such a position. For instance, the Court of Justice of the European Union (CJEU), in its judgment of 15 July 2021 (Case C-791/19), stated that the fact that a body like the National Council of the Judiciary, which participates in the judicial appointment process, is composed predominantly of members elected by the legislature cannot, in itself, give rise to doubts about the independence of the judges selected through that process.
There are numerous such rulings. The only issue is that some lawyers, politicians, and unfortunately, even some judges, refuse to accept this case law because it conflicts with their own views. At the same time, they also reject the case law of the Polish Constitutional Tribunal. In this context, it is worth noting that at the end of these motions, the authors request, as stated in the petitum, that Article 80 be applied when appointing the composition of the court to hear the motion, specifically requesting that the motion be heard by an impartial, independent, and unflawed court.
A further question arises: what kind of court do the authors consider to be independent? And what constitutes an impartial and independent judge? Is it one that accepts a pleading from an influential politician or their representative and is willing, in violation of jurisdictional rules, to hear that pleading in a chamber that lacks jurisdiction over the matter? It is clear that the case law of the European courts, to date, does not provide any legal basis for derogating provisions concerning the substantive jurisdiction of individual chambers of the Supreme Court from the Polish legal system. The method for derogating legal provisions is clearly defined in Polish law, and such derogation cannot be done on the basis of a ruling from a European Court.
Is it also about judges who openly attend meetings with politicians and are actively involved in purported efforts to restore the rule of law, without any attempts to conceal their actions? Specifically, this includes drafting laws aimed at depriving certain judges of their positions and demanding pledges of loyalty from others. Based on the numerous vetting cases I have encountered over the years—hundreds in total—these declarations are often aimed at undermining a person’s character. Such tactics resemble those employed by the secret police in communist Poland. It must be made clear that if any judge were to make such a statement today, it would be sufficient grounds to conclude that he or she has ceased to be independent. This would indicate a clear alignment with a particular political power and a dependence on that power, which could leverage that statement for its own purposes.
Are independent judges those who overturn the decisions of first and second instance courts without substantive reasons? There have been more than 100 judgments of this kind in the Supreme Court to date, where the justification lacks even a single sentence addressing the merits of the case—whether it was rightly or wrongly judged. No one will ever know. The verdicts have been overturned solely because a judge appointed after 2018 was involved in the case at the first or second instance. Furthermore, instead of hearing the case on its merits, the court convenes to review the judge’s qualifications without a legal basis. We have a defined procedure for this. Regarding common court judges, Article 42a clearly grants them the right to file motions and appeal. These rights, however, are not respected in any way. Consequently, this type of jurisprudence and the behavior of some judges have been deemed a clear and flagrant violation of the law, as decided by the Supreme Court on 7 August 2024. A completely baseless justification for overturning judgments has been established, while the rights of the judges who ruled are being drastically and grossly violated.
I mention this in light of the prosecution’s actions in this case, particularly the timing of the motion. What time limit exists if there is no procedure for filing it? It appears designed so that if the motion were granted by the expected judge, it would result in the case being heard in just a few months. This indicates procedural obstruction intended to prevent the case from being heard. This is especially troubling in light of certain prosecutors’ plans regarding the prosecution service, specifically guidelines for filing motions to exclude all judges. I see this as implicating the prosecution service in political activities that could lead to the destruction of judicial proceedings. Is this the outcome desired by the prosecutors who represent the state and act on its behalf? Do they truly want to facilitate the destruction of judicial proceedings?
Again, referring to my extensive judicial history, a simple analogy comes to mind regarding the case of General Kiszczak, in which a request was made to exclude a judge. This was clearly intended to derail the proceedings. If it had not been for the efficient conduct of the Court of Appeal, the case would never have been legally adjudicated. It was only through organizational efficiency that the case against the authors of martial law was able to be heard and concluded on its merits, despite the request for the exclusion of one of the judges on the panel. I mention this in this introductory section with regret and for significant reasons. The ongoing conflict between politicians and judges, and among judges themselves, particularly if prosecutors become involved, will lead to the destruction of the state. Who cares if our state ceases to function normally? If the new judges hear approximately 5 million cases a year and suddenly those cases go unheard, the question arises: who will hear them? How long will citizens have to wait? Such are the consequences of overturning these rulings without substantive justification. Another delay in bringing this case before the court could result in long months or even years of suffering for the victims, who, without any valid reason, are condemned to repeatedly engage in proceedings that are likely to be distressing. This situation also affects the defendants; for some, it means escaping responsibility due to the discontinuation of proceedings resulting from the statute of limitations after a verdict is overturned. For others, it means a deterioration of their circumstances, as they do not serve their sentences as convicted individuals but instead return as persons subject to preventive measures, such as pre-trial detention, with specific limitations. In this context, I emphasize that if the conflict escalates—and we are already seeing signs of this—the state will experience complete paralysis.
It appears that the primary role in escalating this conflict and undermining the status of other judges is played by those judges whose appointments are, as evident from the grounds of the order of 19 August, flawed. While there is no ruling from the Constitutional Court after 2018 that questions the status of judges, I would like to remind you that from 2007 to 2017, there were six judgments from the Court that challenged the procedures and opinions before the National Council of the Judiciary (NCJ). We now find ourselves in situations where individuals who have never served as judges—who have never issued a single decision in a district, circuit, or appellate court—have been appointed to the Supreme Court. There is not even a single sentence justifying the NCJ’s resolution regarding the reasons for presenting this individual for appointment to the President of the Republic of Poland as a judge of the Supreme Court. One may ask: what criteria were used to appoint such a judge, who had never previously held a judicial position, to the Supreme Court? This question echoes throughout the justification of this resolution. I refer to it because I wish to illustrate the potential outcomes of escalating conflict. If the old judges overrule the new judges and the new judges undermine the status of the old judges, we risk losing our state. The administration of justice will cease to function effectively.
For the state to function efficiently, all branches of government must operate effectively. What does the inscription on the Warsaw courts building say? “Justice is the refuge of the power and permanence of the Republic”—the words of Andrzej Frycz-Modrzewski. Justice can only be administered by independent judges. If political power undermines the independence of judges, the state will cease to function. It is therefore time for a reconsideration of this matter. This case highlights the importance of the interpretation of the law. If there is mutual questioning and non-recognition among the branches of government—such as the legislative and executive powers disregarding the Constitutional Court and, more recently, the Supreme Court—one must ask: what will this lead to?
Is this what it means that the legislative and executive powers have no oversight over each other? Does this render citizens powerless against the state? Are they unable to obtain judicial protection because there are no independent judges who can act, as these judges are preoccupied with their own interests? If judges are questioning their own roles, and prosecutors become involved, we will get nowhere down this path!
I have one final thought from a particular case. I once held the case file in my hand, reading the reasoning and the judgment. This case was an offshoot of the 1965 meat scandal, particularly the explanatory memorandum of the judge-rapporteur. The content of this memorandum, specifically the passage I wish to cite, vividly illustrates the consequences of this situation—and I caution those who say, “We are in special times; we need a special interpretation of the laws and the constitution. We are in a fighting democracy, and we need to settle accounts with previous political authorities.”
The reporting judge wrote: “At the present stage of development of the socialist homeland, when the previous methods of combating this type of crime have not produced the desired results, it is necessary to resort to methods of last resort.”
This meant that, due to the circumstances at that time, an individual was sentenced to death to cover up the failures of the meat supply system. This indicates a level of complicity wherein the judiciary pursued political objectives. The Supreme Court declared this ruling a judicial crime. All lawyers, as well as politicians, must act to prevent such situations from occurring. The remedy for this is a conscientious adherence to the law by everyone. Politicians should respect the judiciary, and if they wish to reform it, they must have a clear vision for such reforms rather than aiming solely for destruction. Over my 30 years of adjudicating, I have not heard from any authority—despite living through approximately 20 ministers of justice—about any political authority having a vision for what the judiciary should look like over the next 20 to 30 years and pursuing that goal.
I have only encountered one minister who suggested that certain courts should be abolished; however, they were subsequently recreated, but that is not the main point. Only certainty in the law, respect for the law, and acting within its bounds can ensure that Poland becomes a strong country. In light of what is happening outside our borders, with the war beyond the eastern frontier and conflicts in other volatile regions of the world, no one should undermine the stability of the Republic.
Turning to a related issue, this matter ultimately concerns the interpretation of the law. What can a misinterpretation of the law lead to? In the opinion of the Supreme Court, a situation arose where the Attorney General made significant decisions regarding an important state figure based on written opinions that had been called into question. We know from this case that more opinions were later issued, containing completely different content. The Supreme Court found no grounds for such actions, which carry specific legal consequences.
In the opinion of the Supreme Court, the conditions set out in Article 441, paragraph 1 of the Code of Criminal Procedure have been met to consider that all prerequisites for adopting a resolution on the legal questions posed in questions one and two have been satisfied. Furthermore, a positive answer to questions one and two, indicating that the interpretation of the provisions has been clearly resolved, suggests that the questioning court expected answers to these questions only in the absence of a response to question one.
The fundamental issue is the approach to legal interpretation. Is a literal interpretation sufficient, or is it necessary to resort to other types of interpretation? From the opinions upon which the Attorney General’s position is based, it appears that a broader approach was necessary. However, this position is not supported by either case law or doctrinal views regarding the order in which different interpretations should be applied. A systematic or functional interpretation may only be resorted to when a literal interpretation would lead to absurd conclusions; otherwise, it would not be applicable.
From the judiciary’s perspective, I can assert that there are situations in which it is necessary to resort to this kind of interpretation in extraordinary circumstances. The court in this formation agrees with this assertion, but only in exceptional cases. I have experienced such situations myself. I always adhere to the principle that a judge has a duty to apply every rule of law, even if it is flawed, in a manner that does not harm individuals and allows the case to be decided correctly. In such instances, a specific interpretation may be necessary. However, as I mentioned, these are extraordinary situations. In this case, according to the Supreme Court, such a situation did not arise.
In the opinion of the Supreme Court, stopping at the literal interpretation and taking responsibility for this provision was sufficient to act appropriately. It can be said that, for judges and prosecutors, the higher the level of responsibility, the greater the expectation for accountability. A judge cannot base a judgment solely on legal opinions regarding the law. While there are certain instances in individual procedures where opinions may be sought, they cannot be purely legal opinions. This case illustrates the consequences that can result from reliance on legal opinions. It also outlines the sequence of events in this context. Namely, on the same morning when Prosecutor Bilewicz was appointed, Prosecutor Barski, considered to be a national prosecutor, had also received written permission the day before to issue first-degree appointments for the lowest level prosecutors.
The Prosecutor General, relying on the same opinions, despite the unchanged law, asserted that the individual who had previously approved his application was not a prosecutor after all, as they had not returned from retirement. This can only be described as an instrumental use of the law. This perspective is not reflected in any way, as neither the facts nor the truth have changed. Such an approach is no way to engage with the law or to interpret it. In the opinion of the Supreme Court, Article 47, paragraphs 1 and 2 of the introductory provisions does not contain any temporal limitation regarding its application. There are no grounds for imposing a time limitation on the application of this provision. The opinions cited by the Attorney General are subject to the same error; they assume a priori that Articles 47, paragraphs 1 and 2 are episodic in nature, arising solely from their placement.
At this point, one must consider the principles of legislative technique. Can a regulation determine the content of a provision? Does the fact that a provision is defectively drafted or misplaced mean that certain elements can be added or that it can be given a meaning that does not logically follow from it? In the Supreme Court’s view, this is entirely unauthorized. And this is the crux of the issue.
The point is that if one assumes this, an assumption has been made that should result solely from interpretation. Here, it has been assumed a priori that this provision is of such a nature without applying a specific interpretation. In this context, the Supreme Court wishes to emphasize that a clear distinction must be made between the concept of interpretation and the various interpretative directives: linguistic, systemic, functional, and purposive. It should also be noted that the chronological priority of these rules is not accidental; the linguistic interpretation always takes precedence, and only in certain situations can other types of interpretation be applied. These systemic rules do not exist independently of the linguistic rules but are of a subsidiary nature. I do not wish to bore you with quotations from the doctrine, which will be included in the written explanatory memorandum.
The doctrinal views accepted by the Supreme Court state that a deviation from a clear, self-evident provision determined by its unambiguous wording can only be justified by particularly important legal reasons—social, economic, or moral. If these do not exist, the linguistic interpretation should be relied upon. Here, we have examples from numerous rulings, both of the Supreme Court and the Supreme Administrative Court, that clearly present this position. Therefore, it must be concluded that departing from the unambiguous sense of the provision in question, Article 47, paragraphs 1 and 2, in violation of the indicated rules, results in an interpretation of a law-making nature. No organ of the state can apply an interpretation of a law-making nature, as this raises questions about the citizen’s trust in the state. A citizen should not be surprised to discover, based on a particular interpretation, that a legal provision implies something entirely different from its explicit wording, as interpreted by those who made the interpretation.
Applying this method of interpretation, the Supreme Court has held, as stated in its resolution regarding the content of Article 47, paragraph 1, that neither of these provisions explicitly specifies a term of validity, nor is there any basis for considering that this provision is episodic. This leads to the consequences outlined in the resolution concerning the Attorney General’s decision regarding the reinstatement of the state of retardation and the prosecutor’s powers in this regard. This issue is also important because, as stated, there are further issues that arise from this context, including divergences in case law and additional legal questions that also originate from the interpretation of the law as applied by the Attorney General.