Oposing opinion to the Polish Supreme Court’s resolution of January 23, 2020
The ‘caste’ as the Polish judiciary calls themselves, and Prof. Małgorzata Gersdorf, the Chief Justice of Polish Supreme Court are not welcoming words of dissenting judge, after she and her supporters on the highest court adopted a shocking resolution in January of this year, which sought to dissolve the court’s Disciplinary Chamber and challenge the judicial nominations of President Duda. The dissenting opinion to the January resolution was filed by Supreme Court judge, Zbigniew Myszka. His moving words and defending of judges’ appointments have become a symbol of judicial autonomy and independence.
“I submit this dissenting opinion with full respect for the Polish Constitution and in defense of the newly appointed judges who have obtained their appointments from the President and by and large do not pay attention to their personal or family needs, but in a sense of constitutional obligation (as stated in Article 178, paragraph 1 of Polish Constitution) carry out, on behalf of the Polish state, an important mission of independent, impartial and autonomous adjudication often exceeding the usual line of duty.” -wrote judge Myszka.
“Such service should be respected, not humiliated and degraded by “defaming resolution”, which attempts to assign them the status of “dubious” judges, who should not continue to issue verdicts and be stigmatized with restrictions on exercising jurisdiction, even pro futuro (beginning at present and extending indefinitely into the future) from the date of adoption of the contested resolution.” – emphasized judge Zbigniew Myszka.
“Therefore, these judges, who are at the beginning of their judicial service, deserve in particular my abetting support in the form of a votum separatum, which I submit above all in the interest of thousands of Polish citizens, whom the Constitution guarantees the right to a fair trial and open hearing of their case, without undue delay, before a competent, impartial and independent court (Constitution, Article 45, paragraph 1).” – noted the Supreme Court judge.
Judge Myszka pointed out that some of the high positioned judges stigmatize their new colleagues and issue ostracizing ‘judgments’ on them, without a thorough analysis of the situation.
“Polish citizens are generally not interested in undermining or limiting by the old judges the ability to rule by the newly appointed judges, especially that several hundred of such judges incriminated without trial and evidence, have not been charged with any specific or verifiable accusation of abusing the constitutional and EU obligations in an apolitical, independent, and impartial adjudication. In addition, the new judges were not provided the right to self-defense, i.e. the opportunity to defend their rights in contested proceedings or in individual procedures, as stipulated in Art. 180, paragraph 2 of the Polish Constitution.” – wrote judge Myszka.
The judge also noted that a resolution of such fundamental significance for the Polish legal system should be decided by judges of all Houses of the Supreme Court. However, the proceedings were not attended by judges of the Disciplinary Chamber, the Chamber of Extraordinary Review and Public Affairs, as well as a group of judges from the Civil Chamber, who were arbitrarily and deliberately excluded by the Chief Justice of Supreme Court.
“The Supreme Court issued this contested resolution on the matter of constitutional, administrative and public significance with wrong lineup after extremely controversial decision of not allowing judges from the Extraordinary Review and Public Affairs Chamber and the Disciplinary Chamber of the Supreme Court to participate in proceedings, and prima facie illegal exclusion of seven judges from the Civil Chamber. The judges of the Extraordinary Review and Public Affairs Chamber reasonably requested, as amici curiae, that the case under consideration be heard by the full composition of the Supreme Court. In this regard, the arguments presented in the letter of several illegally excluded judges of the Civil Chamber were also logical and convincing.” – the judge wrote.
The criticized interpretative resolution unjustifiably, degradingly and in a humiliating way (contrary to Article 40 of the Polish Constitution) blocks or limits the “incriminated” several hundred new judges from constitutionally independent adjudication (Article 178, paragraph 1 in conjunction with Article 179 and 180, paragraph 1 of the Polish Constitution).
“The Constitution and the very principle of independent, impartial and competent adjudication by a judge legally appointed by President (Article 178, paragraph 1 in conjunction with Article 179 of the Polish Constitution) precludes the adoption of highly interpretative prohibitions of adjudication or “expectations” of refraining from adjudicating; or potentially challenging the jurisdictional capacity of a judge who has not been removed or suspended from office, which requires a decision of a competent court issued in an individual case and only in situations specified in Art. 180 paragraph 2 of the Polish Constitution.” – indicated judge Myszka.
The 25 points dissenting opinion filed by judge Myszka, is in fact a peculiar act of indictment against the autocratic ways of Małgorzata Gersdorf’s allies and herself. The honest and moving words of dissenting judge should sober up the extremely politicized self-proclaimed judicial ‘caste’. It is worth emphasizing the extraordinary civil courage and nonconformity of Judge Myszka, who, despite peer pressure was able to stand up for the truth and against the corporate interests of the judiciary, who disregarding the law wanted to decide who can judge in the court of justice and from whom this right should be taken away. An excellent commentary on the dissenting opinion of judge Zbigniew Myszka was issued by judge Kamil Zaradkiewicz of the Supreme Court’s Civil Chamber, who commented on his colleague’s analysis in these words:
“The great judges are noted in history not only for their landmark decisions, but also for the true independence demonstrated in excellent dissenting opinions.” – wrote Kamil Zaradkiewicz in social media.