The Supreme Court announced on Tuesday morning, September 3, that from Tuesday onwards – until the President appoints a Supreme Court judge performing the duties of the President of the Labour Chamber of this court – the work of this Chamber is managed by the First President of the Supreme Court, Małgorzata Manowska..
Then, during an afternoon press conference, Prime Minister Donald Tusk said that “the matter is clear, a notification of suspicion of committing a crime will be sent against President Małgorzata Manowska.” – Of course, this attack by Ms. Manowska cannot be recognized and no decent and serious person, including the judges sitting in this Chamber, will respect her absolutely illegal decision to take control of this Chamber – said Prime Minister Tusk.
Read: Piotr Prusinowski: One Chamber of the Supreme Court without a president from September 3 >>
Order of the First President of the Supreme Court
And then there was a change. A new statement has been published on the Supreme Court’s website.
The Supreme Court’s statement states that no later than 6 weeks before the end of the term of office of the President of the Supreme Court who heads the work of the Supreme Court chamber, the assembly of judges of that chamber should select candidates to serve as its president for the next term of office. Since the current President of the Supreme Court who heads the work of the Labor and Social Security Chamber, Dr. Piotr Prusinowski, ended his term of office on September 2, 2024, candidates for the position of President of that chamber should have been selected by July 22 this year, which, however, did not happen.
In such a situation – as added – Article 13a paragraph 1 in connection with Article 15 of the Act on the Supreme Court shall apply, pursuant to which the President of the Republic of Poland shall immediately entrust the performance of the duties of the President of the Supreme Court to a judge of the Supreme Court indicated by him.
The First President of the Supreme Court informed the President of the Republic of Poland about the situation in a letter dated 28 August this year, in order to immediately appoint a judge to perform the duties of the President of the Supreme Court, directing the work of the Labor and Social Security Chamber. Until then, the work of the Labor and Social Security Chamber is directed by the First President of the Supreme Court – it was noted in the announcement.
In connection with the fact that as of 3 September this year the judge referred to in Article 15 paragraph 4 of the Act on the Supreme Court had not yet been appointed, until such time as this happens, the First President of the Supreme Court, Dr. Hab. Małgorzata Manowska, pursuant to Article 14 paragraph 1 in connection with Article 102 paragraph 1 of the Act, by order no. 120/24 of 3 September this year, authorized Supreme Court judge Dr. Hab. Dawid Miąsik to perform activities related to the organization and management of the Labor and Social Insurance Chamber of the Supreme Court.
It was also announced that a proposal for a candidate for the position of the so-called commissioner in the Chamber of Labor and Social Insurance would be sent to President Andrzej Duda. What does this mean? Prawo.pl asked Supreme Court judge Michał Laskowski. – President Duda predicted a long time ago that the old presidents would eventually leave. Months, even years, are passing and the number of judges nominated before 2018 is decreasing. There are more and more new judges. The process of taking over the Supreme Court is ongoing – explains Judge Laskowski.
President Manowska without authorization in the case of Judge Miąsik?
Judge Dawid Miąsik, who currently serves as president of the Supreme Court’s Labor and Social Security Chamber, also issued a position on this matter. As he emphasized, the basis here was the Supreme Court Act, specifically Article 15, paragraph 1, Article 10, paragraph 1, and Article 22b, paragraph 2 of the Act on the Organization of Common Courts, and the fact that he has the longest tenure among the heads of the Labor and Social Security Chamber’s department.
Article 10 of the Supreme Court Act is a reference, in matters not regulated, to the provisions of the Law on the Structure of Common Courts. In turn, pursuant to Article 22b paragraph 2: “if the president of the court has not been appointed, the function of the president shall be performed, for a period not longer than six months, by the vice president of the court. In a court in which more than one vice president of the court has been appointed, the function of the president of the court shall be performed by the vice president who is the oldest in service. If the vice president of the court has not been appointed, the function of the president of the court shall be performed, for a period not longer than six months, by the oldest in service judge serving as the head of the division in that court”.
Judge Miąsik added that he also has the support of the chairmen of the other two divisions of this chamber – judges Jolanta Frańczak and Bohdan Bieńek.
– The authorization granted to me in the Order of the First President of the Supreme Court is not based on the Supreme Court Act. The Article 14 paragraph 1 of the Supreme Court Act (the First President of the Supreme Court directs the work of the Supreme Court and represents the Supreme Court externally) cited therein does not authorize the appointment of a judge to perform the function of the President of the Supreme Court or to entrust a Supreme Court judge with the performance of activities related to the organization and management of the Labor and Social Insurance Chamber – he sums up.
And the President is in charge temporarily?
Before noon on September 3, there was a debate on whether the First President of the Supreme Court could take over the running of the Chamber, during the vacancy in the position of the president of such Chamber? Judge Michał Laskowski from the Criminal Chamber says that the law is silent on this subject.
– I am not delighted with this turn of events, but the First President is the head of the Supreme Court and the situation is already so complicated in the Supreme Court that it is difficult to find good solutions. The Supreme Court needs to be reorganized, i.e. a new act needs to be passed – says judge Laskowski.
Prof. Włodzimierz Wróbel, a judge of the Criminal Chamber, spoke on this subject in somewhat harsher words on social media.
– In order to become the First President of the Supreme Court within the meaning of the Constitution of the Republic of Poland, three conditions are necessary: one must be a judge of this Court within the meaning of the Constitution of the Republic of Poland, a resolution of the General Assembly of Judges of the Supreme Court is needed to present a given person as a candidate for this office and there must be a nomination by the President – claims Prof. Wróbel. – In the case of Prof. Manowska, these first two conditions were not met.
She received her nomination to the Supreme Court at the request of a body that appropriated the name of the National Council of the Judiciary, and was not, and is not, a body provided for in the Constitution of the Republic of Poland – adds Judge Wróbel.
The name of the “old” judge is on the table
In order to hold elections for the president of the Labor Chamber, the president may entrust the duties of the president to a judge of the Supreme Court, whose task will be to convene a meeting and elect candidates for president. He will need the prime minister’s countersignature for this.
Interestingly enough, in the opinion of the Supreme Court judges, the president does not have to choose the so-called neo-judge. “Old” judges, talking about their types, point to judge Zbigniew Korzeniowski, for example. They remind us that he submitted a dissenting opinion to the famous resolution of three combined Chambers: Civil, Criminal, and Labor and Social Security of the Supreme Court of January 23, 2020. Of course, this refers to the resolution in which the Supreme Court indicated that “new” judges of the Supreme Court, appointed with the participation of the neo-National Council of the Judiciary, cannot adjudicate, but allowed, subject to individual verification, a test of impartiality, further adjudication by lower-level judges.
In turn, judge Korzeniowski in his separate opinion indicated that removing an entire group of judges and Chambers of the Supreme Court from adjudicating constitutes a change in the system of courts, and this can only occur by way of an act, which results directly from art. 176 sec. 2 of the Constitution of the Republic of Poland. He also noted that the doubt or even the thesis about the loss of the attribute of independence by the National Council of the Judiciary does not allow for the presumption that “judges indicated for appointment by the President of the Republic of Poland are subordinate to political power and therefore are not independent, and courts are not independent”.
– The mere appointment of a judge at the request of the National Council of the Judiciary does not mean that the judge loses his right to adjudicate or that the composition of the Court is contrary to the provisions of the law – he pointed out.
The General Assembly of Judges of the Supreme Court, which in 2020 elected candidates for the position of First President of the Supreme Court, was manipulated by political appointees (“electoral commissioners”), and never passed a resolution presenting candidates for this office to the President. Moreover, unauthorized persons also took part in this Assembly – members of political specialist courts established at the Supreme Court.
According to Prof. Wróbel, someone who, in the constitutional sense, is neither a judge of the Supreme Court (because he was nominated without a motion from the National Council of the Judiciary), nor the First President of the Supreme Court (because he was nominated without a resolution of the General Assembly of Judges of the Supreme Court), cannot benefit from the constitutional guarantees: irremovability from office, the right to retirement or immunity.
Time for new regulations
Judge Laskowski would expect a new law to establish a normal Supreme Court, without special Chambers. Even for disciplinary cases of judges and other legal professions.
– There is also no need for the extraordinary appeal to continue to function, it is an unnecessary solution, excessive. The key problem, however, is the removal of neo-judges from the Supreme Court. There is a whole range of Supreme Court and European tribunal rulings and on their basis, a law can be passed that will dispel doubts as to whether the Supreme Court has properly appointed judges or not, whether their rulings are valid or burdened with a serious legal defect. There are various ways to reach this state. This cannot be done in a week.
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