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Judicial Independence and Abuse of Power – Interview with Judge Tomasz Przesławski

Maria Szonert Binienda, Esq. talks with Dr. hab. Tomasz Przesławski, President of the Supreme Court, (Chief Justice in Charge of the Disciplinary Chamber of the Polish Supreme Court)

Both in Poland and in the West, the reform of the Polish judicial system is controversial, especially the establishment of the Disciplinary Chamber of the Supreme Court, which you chair. Meanwhile, the need to reform the flawed disciplinary justice system of the legal community has been systematically raised in Poland since 1989 by both today’s political opposition and the judiciary. What were the attempts to reform the Polish judiciary between 1989 and 2015? 

In reality, there were no systemic attempts to reform the disciplinary judiciary, and what was tried was ineffective. For years, judges and representatives of the legal elite believed that after the political changes that occurred in Poland in 1989, the judicial community would be cleansed on its own accord and there was no need to take any particular action, create new procedures or institutions. Unfortunately, this was a wishful thinking. Since the 1990s, the issue of the flawed structure of the disciplinary judiciary has been repeatedly raised in public debate. In the years 1989-2015 mentioned by you, Supreme Court judges failed to enforce the consequences of judges’ disciplinary misconduct and there occurred a negative reaction in Polish society to cases of failure to exclude persons from the judicial community publicly depreciated because of their crimes. However, this has not led to significant reforms in the area of disciplinary accountability. A systemic change in the way disciplinary control is exercised in the judicial community took place only after the adoption of the new Supreme Court Act of December 8, 2017. It was then that the Disciplinary Chamber was established in the Supreme Court, which is the specialized body responsible for the legal and moral assessment of the behavior of members of the legal profession, including judges.

Since in contemporary Poland it has not been possible to cleanse the judiciary from individuals who had served the criminal Communist system, including judges convicting Solidarity activists during the martial law years, why does the international community refuse Poland the right to apply the mechanisms of so-called “transitional justice” commonly implemented, even required by the UN, in post-conflict societies such as Poland?

I do not wish to comment on any particular case, as my role requires me to be completely impartial. As for the mechanisms of transitional justice, I do not think that the international community would deny any of the European countries their application. The actions you are talking about, taken by specific contemporary countries to face up to their history, including acts of former political regimes that violated human rights, were also taken by countries in our part of Europe. In the case of Poland, the realities of the first years of the Third Republic of Poland were decisive, including the consequences of the so-called “Round Table” agreements. The limitation of possible settlements with the past in the mode provided for by the mechanism of transitional justice resulted, among others, from numerous judgments of the Constitutional Tribunal from that period, which considered the issues of the undemocratic history of the Polish state based on the rule of law, but abandoned settlements on such a scale as was done for instance in Germany. In addition, the Supreme Court in its earlier rulings, before the creation of the Disciplinary Chamber, refused to make settlements regarding the responsibility of judges. The resolution of the Supreme Court of December 20, 2007 is particularly controversial (Ref. I KZP 37/07), which, citing the Constitution of the People’s Republic of Poland of 1952, justified the application of martial law provisions violating, among other things, the prohibition of creating criminal provisions with retroactive effect. The authors of this ruling represented thinking far removed from Gustav Radbruch’s concept of statutory lawlessness and were widely criticized for this, with terms such as the “anti-philosophy of anti-law”. Currently, the Disciplinary Chamber adjudicates on such matters in accordance with the standards resulting from, among others, international conventions ratified by Poland on the protection of human rights and punishment for violating them.

The argument of politicizing the judicial system through the current reform is raised in the dispute today between Poland and the European Union in discussions concerning the reform of the judiciary. To what extent is the Polish reform of the disciplinary judiciary different from solutions applied in Western European countries?

I would like to remind our American readers that since 2004, Poland has been a member of the European Union and for many countries of Central and Eastern Europe, it has been a model of how a bloodless exit from the previous Communist system was possible, setting its sights on reforms and Western culture, which Poles, as a nation, have never given up. A significant role in Polish efforts to reform the disciplinary judiciary is evidenced by Polish history, which is so much inscribed in the shaping of the fate of today’s Europe, based on the rule of law, respect for common values and the search for what unites rather than divides nations. At the same time, the values resulting from Treaties have been very important for the Republic of Poland already since 1989, when the process of moving away from the Communist system and its law-related legacy began. I would therefore like to stress strongly that the reform of the disciplinary judiciary carried out in Poland does not violate either the Montesque-style principle of the separation of powers (first and foremost, the principle of the tri- division of powers, the principle of independence of the courts and its judges, which is important in Poland and Europe) or differs fundamentally from the solutions adopted in Western European countries. The interaction of the three branches of government within the mechanisms known in the USA as “checks and balances” allows, among other things, for the participation of parliamentary representatives or government influence on the process of judicial appointments. In Europe, we observe great diversity of solutions in this respect. Most often, this occurs with the help of special non-judicial bodies – the Judicial Councils. Their composition, method of appointment and detailed competences also vary from country to country. The Polish system does not differ from what typically occurs throughout the EU. On the contrary, in many countries, the influence of politicians on the number of courts is much greater than it is in Poland.

What is the scope of competence of the Supreme Court Disciplinary Chamber? Can its activities under current law be political in nature?

The Disciplinary Chamber of the Supreme Court performs its tasks in accordance with its statutory jurisdiction. The system of disciplinary responsibility currently in force in Poland sets out in an exhaustive manner, the grounds for initiating disciplinary proceedings against judges as well as against other legal professionals. The Disciplinary Chamber, therefore, deals with disciplinary cases of Supreme Court judges, common and military courts, prosecutors (including IPN [Institute of National Remembrance] prosecutors), lawyers, legal counsels, notaries and bailiffs. Disciplinary proceedings before the Disciplinary Chamber are based on the adversarial principle and are conducted with respect for all procedural guarantees arising from the right to a fair trial as defined in Article 45 of the Polish Constitution. These guarantees are therefore the same as before any other court in Poland. Thus, among other things, hearings in disciplinary cases are open, the proceedings are two-stage, the accused has the right to a defense counsel, has the right to submit evidence applications, etc.

Answering your second question, I would like to emphasize that the Polish Supreme Court, including the Disciplinary Chamber,  is ruled by judges who are independent in performing their functions. As far as adjudication is concerned, they are subject only to the Constitution and to the laws, as the Constitution states. They may not receive any instruction or guidance from anyone. This means that judges shall carry out their tasks without subordination within the hierarchy of service and without subordination to anyone, that is to say, neither the executive and legislative powers nor other courts and judges. The Supreme Court Act [Pol.: Ustawa o Sądzie Najwyższym] provides conditions for freedom of judgments and protects against any outside pressure that could influence the direction of a judge’s decision. This includes immunity and the prohibition of additional earnings, which in the case of the judges of the Disciplinary Chamber goes further than in the case of judges of other Supreme Court chambers. The Disciplinary Board’s accusation of politicization also proves to be a completely hollow accusation in comparison with case law practice. Most of the disciplinary cases of the legal professions in which we provide rulings, relate to conduct, such as: drunk or unlicensed driving, forgery of documents, falsification of judgments and court records, improper conduct in the courtroom, domestic violence, obstructing contacts with a child, starting a brawl, failing to settle accounts with a client or failing to repay loans or credits that have been taken out. In the Disciplinary Chamber, we are primarily aware of the fact that the requirement of ethical conduct of legal professionals is the foundation of the authority of the judiciary. There is no escape from the ethics of individual legal professions. Law without ethics becomes lawlessness.

The dispute over the reform of the judiciary touches on the fundamental issue of the sovereignty of European Union Member States. Judicial reform is not an exclusive competence of the European Union delegated by the Treaty, but the Court of Justice of the European Union (CJEU) seems to extend EU competences to this sphere of action. Does this mean that the CJEU is illegally extending EU competences and thus undermining the principle of primacy of the Polish Constitution over EU treaty law?

First of all, it should be remembered that the disputed issue in question belongs primarily to the sphere of the Republic of Poland’s relations with the European Union, in which Poland is represented solely by the government. Observing the development of this situation, and above all, the intensified activities of European Union bodies towards Poland, I feel deep concern. The question should be asked whether the possible actions of Brussels would not constitute political interference in the exclusive power of Member States to shape their own systems of justice. The CJEU’s activity has also been noticeable and increased. The primacy of European law over national law, as emphasized by the Court, does not apply to Member States’ constitutions, as they are the supreme law of each of the countries concerned. The Polish Constitutional Tribunal expressed its opinion on this issue in the judgment of May 11, 2005 concerning the Accession Treaty. It stated unequivocally that the Constitution is “by virtue of its special power – the highest law of the Republic of Poland” in relation to all international agreements binding the Republic of Poland. This also applies to ratified international agreements on the transfer of competence “on certain matters.”

By virtue of Article 8  par.1 of the Polish Constitution, the supremacy of legal force shall enjoy on the territory of the Republic of Poland the priority of validity and application. Since the entry into force of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), there has been a clear division of competences between the EU and the Member States. In accordance with the principle of conferral under the European Treaties, the EU has only such competences as have been conferred on it by the Member States. However, the EU has no competence in matters relating to the organization of justice. This leads to the conclusion that Poland, like any other Member State, is fully entitled to shape the justice system itself. The principle of conferral also has a real impact on the competences of the CJEU. It cannot rule on matters which are not among those assigned to the Community. It is worth noting at this point the jurisprudence of the German Federal Constitutional Court, which, among others, in its judgments in the Solange I cases of 1974 (2 BvL 52/71), Solange II of 1986 (2 BvR 197/83), Maastricht Treaty of 1993 (2 BvR 2134, 2159/92), the Lisbon Treaty of 2009 (2 BvE 2, 5/08, 2 BvR 1010, 1022, 1259/08, 182/09) finally Honeywell of 2010  (2 BvR 2661/106), made it clear that some CJEU decisions may go beyond the conferred competences.

What is the policy of the European Union, including the CJEU, vis-à-vis the other Member States of the Union in the field of the structure of national courts? Are the actions of European Union bodies towards Poland on judicial reform discriminatory? If so, what is the reaction of other EU Member States to such actions?

Under the Treaty on the Functioning of the European Union (TFEU), individual members of the Community, including the Republic of Poland, are fully entitled to reform the administration of justice in order to ensure the rule of law and its operational efficiency, since matters of justice are the domain of sovereign Member States. The TFEU also underlines the respect by the European Union for the equality of Member States with regard to the Treaties and the importance of their national identity, which is inextricably linked to their fundamental political and constitutional structures. The catalogue of these values is common to the Member States in a society based, as the Treaty states, on pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men. Of course, all these values are close to my heart, as is the entire legacy of Western legal culture, of which the principle of subsidiarity or the principle of acting within the limits of the law are its part.

In this context, the Court of Justice of the EU should be seen as one of the Community bodies whose jurisdictional boundaries are defined by the Treaties, clearly limiting the possibility of the CJEU intervening in the European order. Also, the case law of the constitutional courts of a number of Member States of the Community clearly marks the boundary between EU law and the values stemming from their own constitutional identity. For example, the recent judgment of the German Federal Constitutional Court in the case (ref. 2 BvR 1685/14, 2631/14), which drew attention, among other things, to the low democratic legitimacy of the CJEU. In France, the Constitutional Council there has denied the automatic transposition of EU directives when they fall into the sphere “inextricably linked to France’s constitutional identity.” (2006-540 DC and 2011-631 DC). Recently, the Spanish Supreme Court has ignored the CJEU ruling on the immunity of a Catalan politician elected to the European Parliament, recognizing the superiority of the Spanish constitutional order.

Once again, I would like to emphasize that my role as a judge of the Supreme Court, and I believe that this position is also adopted by every judge in Poland, is to exercise judicial functions and not to make a journalistic assessment of current problems in public life, including trials taking place in the European Union. Therefore, it is extremely difficult for me to assess the activity of political bodies. Many critical voices on the part of EU institutions directed towards the Disciplinary Chamber of the Supreme Court, which I head, are completely devoid of arguments. I think that many of the critical voices coming from Europe are the result of misinformation or perhaps misrepresentation and a lack of sufficient understanding of the social, geographical and historical specificities of my country.

How is the European Union’s interference in Polish judicial reform, including disciplinary reform, currently perceived by Polish society? What is the impact of current European Union interference in Polish judicial reform on the quality of Polish justice and the rule of law?

Once again, I would like to reiterate that the values resulting from the Treaties are very important for the Republic of Poland, which since 1989 has been going through a long process of gradual withdrawal from the Communist system. At present, unfortunately, the authority of the judiciary is being put to a great test. For my part, as a Supreme Court judge, I feel all the more responsible for its good and, more broadly, the good of Poland, also in terms of its membership in the European Union. This responsibility is executed primarily by fulfilling the judiciary duties which were entrusted to me in the act of my appointment as a Supreme Court judge by the President of Poland. The establishment of the Disciplinary Chamber in the Supreme Court was a response to this real problem, perceived by the public as a result of the high-profile cases of impunity for the perpetrators of serious abuses in the legal environment. In fact, the lawyers themselves demanded changes. The current regulations and the work of the Disciplinary Chamber are meeting these expectations in a comprehensive manner. They are also part of a broader reform of the justice system which is being carried out for several years now in Poland and which enjoys a lot of public support. The cases we encounter in the practice of issuing rulings concern the assessment of the behavior of legal professionals that is contrary to ethical obligations. There is no doubt that the requirement of ethical conduct of the lawyers themselves, and especially judges, is the foundation of the authority of the justice system.

I hope that the crisis around the Polish justice system will end soon, because its escalation does not serve any of the parties to the conflict and, above all, is socially harmful. Unfortunately, we are dealing with a public call to violate the law by, among other things, undermining the competences of the Disciplinary Chamber. This is due to the spread of incorrect interpretations of CJEU rulings, as well as the distortion of the meaning of certain rulings by the national courts. I am not afraid of criticism, everyone has the right to have their own opinion and express it in public, and even to protest, but the boundary must be the legal order in force. Anyone who protests against it, disturbs the security of legal relations, compromises legal certainty and the right of citizens to a (fair) trial, and thus the whole democratic order of the Republic.

 

Thank you for the conversation.

March   30, 2020

Photo: Brooklyn Law School News and Events

 

 

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