Why did the EU commissioner attack the Polish court that is to rule on the validity of the autumn elections? Is it a joint action with Iustitia activists? Why is there such enormous polarisation, even hostility, among judges? Can the procedure for recognising election protests be disrupted? Among other things, “Gazeta Polska” talked about these issues with Judge Ewa Lemańska, Ph.D., president of the Supreme Court’s Extraordinary Control and Public Affairs Chamber (IKNiSP).
Grzegorz Broński: Niezależna.pl portal revealed in full the letter that the EU Commissioner for the Rule of Law, Didier Reynders, sent to the Polish government in April this year, in which he suggested that the IKNiSP was not an independent court. What was your reaction?
Judge Ewa Lemańska: Nothing particularly surprised me, because the letter basically repeats the position of the European Commission, which was presented in the proceedings before the Court of Justice of the European Union in the case concerning the Disciplinary Chamber of the Supreme Court. This is the famous proceeding in which a protective order was issued and fines were charged for non-compliance.
So why did Reynders send such a letter to the Polish government?
It is important to note the context of the situation in which the letter was written. It is a response to Poland’s request for the annulment of the fines imposed in the proceedings pending before the CJEU, on the basis of the protective order. The letter is dated April, meanwhile, in June 2023, the CJEU handed down its judgment in these proceedings and, crucially, did not accept the allegations made against the Extraordinary Control and Public Affairs Chamber of the Supreme Court. I therefore believe that the Commissioner has already received an answer to his doubts.
However, various objections are raised in connection with the arguments used by Reynders, Madam President. For example, is Reynders a legitimate Commissioner? Moreover, is the European Commission a legitimate institution?
No Member, Senator or MEP has ever questioned his or her status, despite the fact that, after the last three elections, our House has stated their validity. Therefore, I do not suppose that the Commissioner, too, has any doubts about his legitimacy.
Let us clarify. This House, of which you are president, has ruled on the validity of elections. Including those when Polish MEPs were elected, who now sit in the European Parliament and take part in the election of the members of the European Commission. So those questioning the House’s mandate are questioning their own mandate?
Correct.
Is the thesis put forward by Reynders or the activists of the judges’ association Iustitia, namely the questioning of the Chamber for Extraordinary Control and Public Affairs as a court, in any way legitimate, or has everything been cleared up and now we are just dealing with clinging, with politics in the background?
So much has already been said about the rule of law that virtually everyone is lost in basic concepts. What has been in doubt is the question of the circumstances of the appointment. Please note how many value-laden descriptions we have here. This is, by the way, a mechanism that can apply not only to judges appointed after 2018 but also to judges appointed earlier, because there have been times when the Constitutional Court has questioned the constitutionality of solutions and procedures under which judges were also appointed earlier.
There are many similar doubts. Although “Gazeta Polska” described the case of Judge Igor Tuleya, who received his appointment from the hands of the Speaker of the Sejm acting as head of state, not the president. However, part of the judicial community contesting the reform pretends that there is no topic and does not want to talk about it. It only focuses on judges appointed after 2018.
I believe that this is being done without any reflection on previous irregularities. On the other hand, what always worked was the question of the permanence of the mandate of an appointed judge. And there was never any doubt that this mechanism was intended to safeguard judicial independence. I think that today some people are forgetting this fundamental point.
Returning to the Reynders letter. Since the case concerned the Disciplinary Chamber, why there is a thread of the Control Chamber?
I am surprised by some of the wording in the letter – while the status of the Disciplinary Chamber has indeed been questioned, primarily because of the special legal arrangements separating it from the structure of the Supreme Court, the status of the Extraordinary Control and Public Affairs Chamber, like that of the Professional Responsibility Chamber, is the same as that of the other chambers of the Supreme Court, and the issue of their independence has never been questioned.
As far as the judges of the Chamber and the judgment of the ECHR (European Court of Human Rights – ed.) in the Dolińska-Ficek case are concerned, this “fundamental irregularity” in the appointment process referred to in the letter is a reiteration, following the Supreme Administrative Court, of certain doubts. The point, however, is that this judgment of the Supreme Administrative Court was made without the participation of the judges concerned, in a way that made it impossible for them to defend themselves in any way, in violation of basic procedural guarantees, and it is this that is now the subject of the complaint to the ECHR. Irrespective of this, it should be stressed that these doubts do not in any way relate to electoral issues, this was already given expression by the ECHR when it rejected the complaint against the IKNISP’s ruling on the examination of an election protest in an earlier election. The Court rightly pointed out that this is a public matter and individual guarantees do not apply to it.
Reynders wrote the letter in April, but Judge Krystian Markiewicz, leader of the Iustitia Association of Polish Judges, had already started to question the Chamber’s mandate much earlier. In various interviews, he explicitly admitted that it was about the upcoming elections, and he did not hide his political antipathies.
I, however, take the view that a judge should not speak out on political matters.
But yet judges are speaking out. The National Council of the Judiciary has even started to use the hashtag #IustitiaPolitical Party.
Unfortunately, this shows where this dispute has gone. Such statements from both sides do not serve the good of the judiciary.
Not too much time passed between Markiewicz’s interviews and Reynders’ letter. Do you allow for the possibility that this is a joint, coordinated action by an association of Polish judges with an EU institution?
You are very welcome to ask Professor Markiewicz about this.
If that were the case, what would you think about it?
As I have already mentioned, I believe that a judge should not make political statements, so I will not answer this question.
Aren’t you afraid of the scenario that in the event of an opposition defeat in the autumn and a verdict declaring the validity of the elections, the Chamber’s ruling will be challenged?
I have been asked this type of question before every previous election and I have always answered in the same way: I am not afraid and I have no doubt whatsoever that the procedure for assessing, for declaring the validity of the election will be conducted in the Supreme Court in a correct, lawful and fair manner. I believe that this will be exactly the same this time as well. The Chamber for Extraordinary Control and Public Affairs is very well prepared for the elections and already has considerable experience in this regard. It is also worth mentioning that previous election proceedings have been observed by international institutions, primarily the OSCE mission, and I find the conclusions of these reports encouraging. Also, during the forthcoming elections, steps have been taken to make the process of hearing election cases by the Supreme Court as transparent as possible.
There has been chaos in the Polish courts, including the Supreme Court. While previously the courts may have been perceived as working too slowly, they were nevertheless quite predictable. Now that predictability is gone, judges are surprising each other, including by questioning the mandate of their colleagues to rule.
I deplore this. I believe that this in no way serves the authority of the judiciary, and is something that should not happen at all.
There are around 10,000 judges in Poland, and some 3,000 belong to Iustitia, but the activists in this organisation and, to a somewhat lesser extent, the Themis association have succeeded in creating polarisation among judges. Two camps have even emerged. This can also be seen in the Supreme Court.
This is a very dangerous phenomenon that we have to deal with on the scale of the entire judiciary. The problem of polarization does not exist in our Chamber, it functions smoothly, without any impediments. As a result, cases are dealt with quickly and we have no backlog. This only confirms the fact that where there is polarisation – it hinders the functioning of the judiciary. The emotions that accompany it affect both the perception of the judiciary and the length of proceedings. The fundamental purpose of the judiciary, which is to resolve disputes fairly, for the benefit of the people whose cases are heard, is lost in these emotions.
Do you see an opportunity to rectify the situation, to find a compromise, or is this already such an emotional discussion that there is no chance of consensus?
There is always a chance for compromise. I am an optimist. What the atmosphere is like and how you work is entirely up to the judges themselves. I can understand that previously there was some concern about the changes being made to the judiciary. Now we are many years on and I think this is a good time to revise some views or fears. There are things that have worked and that haven’t. I think now – with hindsight – everyone can make their own judgement based on their own observations and experiences, not just based on a political discussion.
But there are other risks. Donald Tusk has announced his desire – after possibly winning the elections, of course – to make huge changes to the judiciary. And Iustitia hints – the verification of all judges with appointments after 2018. That’s about 3,000 judges. Can you imagine a situation where such a huge group disappears from the courts at various levels and stops ruling?
I absolutely cannot imagine that. It is also difficult for me to imagine that some judges have, or could have, such a desire for revanchism. This type of approach is far from my value system.
You have already made it clear on several occasions that politics should be as far away as possible from any kind of court. Meanwhile, the recent president of the Criminal Chamber of the Supreme Court, Michał Laskowski, first publicly announced that he would go to a march organised by the Civic Platform, and did so, and then argued that he saw nothing wrong with it. Only after some time did he recant, but the precedent was set: a Supreme Court judge ostentatiously attending a party event.
Mr. Judge Laskowski also authored an article explaining why a judge has the right to participate in protests. I have read this article and I have to say that none of the arguments presented there convince me personally. I do not think it is a good idea for judges to manifest their views or political sympathies.
Opposition senators sent jurors to the Supreme Court who were at the same time activists of the Committee for the Defence of Democracy (KOD), demonstratively flaunting their views. Several months have passed. How has this affected the functioning of the Chamber?
Some of the extraordinary complaint cases started as recently as last year and are therefore being handled by jurors from the previous term. Of course, this year’s cases are slowly emerging. And there it looks like there are some jurors, also from the KOD, who are ruling normally. Some people refuse to adjudicate, with various reasons given as to why they cannot proceed with a particular case. So, the situation is only developing.
You mentioned extraordinary complaints. I understand from your previous statements, from your interviews, that you are in favour of this.
Absolutely.
And on the list of candidates for the Senate, there is the former Ombudsman Adam Bodnar, who, despite the passage of years, despite the fact that many mistakes of the judiciary have been rectified thanks to extraordinary appeal, still criticises them.
I would like to remind you that the first extraordinary appeal received by the House was signed by the Mr. Ombudsman, Professor Bodnar. And quite many such complaints personally signed by him have been submitted to the Supreme Court. Where do I see the problem? Well, very often those who file extraordinary complaints report what is quite widely reported, while the media do not later report what the Supreme Court’s decision is. This also gives the impression that this legal instrument is being misused.
However, the allowance of extraordinary complaints occurs only in rare cases. These are really serious mistakes made by the courts in previous proceedings, which can be rectified by an extraordinary complaint.
But there is often the problem of the effectiveness of an upheld extraordinary complaint because the cases nevertheless relate to history from a few or more years ago. Isn’t the Supreme Court’s verdict only a symbolic compensation, because realistically not much can be done?
On the contrary. There are situations where, as a result of mistakes made in old judgments, parties cannot, for example, settle their property relationships because two succession orders have been made, for example. Or the judge made a mistake in the case of shares. Or other errors that even paralyse the possibility of disposing of the rights. An extraordinary complaint makes it possible, at least in these types of situations, to react and rectify them.