Tomasz Przesławski (Polish Supreme Court judge): “Many of the current actions of representatives of the legal professions can be seen as a threat to basic legal values”

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Interview with Tomasz Przesławski, Polish Supreme Court judge defending the judicial reforms carried out by PiS: “Many of the current actions of representatives of the legal professions can be seen as a threat to basic legal values, causing chaos in the legal system and a feeling of uncertainty among the public as to the validity of court judgments.”

PologneThe long-lasting conflict between EU institutions and Poland, with its PiS government, seems to have regained impetus after the November 19 judgment by the Court of Justice of the EU concerning the independence of the reformed National Judicial Council and of the newly created Disciplinary Chamber within the Supreme Court. In their ruling, CJEU judges stated that it is for Polish judges to ascertain whether those two institutions fulfil the criteria to be considered independent as required by the European treaties, and whether they should be deemed legitimate, taking into consideration that European law has priority over national law. Three judges sitting in the Labour and Social Insurance Chamber of the Polish Supreme Court subsequently ruled on December 5 that those two judicial institutions, as reformed or created by PiS, infringe European law. Jarosław Kaczyński’s party reacted by proposing a new law that will impose sanctions on judges who question the legitimacy of other judicial bodies, and the European Commission is threatening Poland again.

The following is an interview with Doctor of Law Tomasz Przesławski, who is the president of the Disciplinary Chamber of the Polish Supreme Court.

Olivier Bault: Are we dealing here with a new interpretation of EU law by the CJEU? Is this not certain to lead to a kind of legal anarchy, and to the extension of judicial authority throughout the Union, under the direct oversight of the CJEU?

Tomasz Przesławski: I do not intend to comment on the CJEU judgment, and certainly not to draw far-reaching conclusions from it. I would nonetheless like to point out that the judgment in question is an interpretative ruling made in response to prejudicial questions submitted by the Labour and Social Insurance Chamber of the Polish Supreme Court, and thus has effect only in the cases to which it applies. It does not therefore have the force of generally applicable law, but is merely an interpretative guideline which will have no legal consequences in any other court proceedings.

Olivier Bault: In that case, how do we explain the fact that on the basis of the CJEU judgment not only has the Labour and Social Insurance Chamber questioned the legitimacy of the National Judicial Council and the Disciplinary Chamber in the light of the principles of European law, but other individual judges in Poland have also drawn a similar conclusion, questioning the validity of judgments handed down by judges appointed under the reformed National Judicial Council?

Tomasz Przesławski: My role as a Supreme Court judge is to perform judicial functions, and not to make journalistic assessments of current problems in public affairs. It should be remembered that in a state subject to the rule of law, court judgments are subject to review only by courts of higher instance, which determine whether there exist legal grounds for a judgment to be overturned. It cannot therefore be inferred that judges have any authority to challenge the validity of court judgments under any other procedure than the one I have just described.

To answer your next question, I would like to quote a Latin maxim that is known to every lawyer: sententia ius facit inter partes, meaning “the judgment makes law between the parties”. In the context of the December 5 decision of the Labour and Social Insurance Chamber, this means that the ruling has consequences only for the parties to the case, and is not a source of generally applicable law in Poland, as laid down in my country’s Constitution (Article 87).

Olivier Bault: At the present time, what are the guarantees of the independence of the Supreme Court judges sitting in the Disciplinary Chamber? Does the Minister of Justice, the National Judicial Council or anyone else have instruments at their disposal that allow them to influence the decisions of those judges? Is it possible to dismiss or transfer a judge being a member of that chamber? Are you, as president of the Chamber, answerable to the government in any way?

Tomasz Przesławski: As the Supreme Court president directing the work of the Disciplinary Chamber, I am above all a judge, and I am not subject to any influence from the legislative and executive branches. Independence in passing judgments is a foundation of the actions of every judge, guaranteed by the Polish Constitution. Neither the Minister of Justice nor the National Judicial Council has instruments that might limit the independence of Supreme Court judges. Nor can they remove a judge of the Supreme Court from his or her post. The only body entitled to take such action is the Disciplinary Chamber of the Supreme Court, which investigates via a legally prescribed procedure whether a judge has committed a disciplinary offence of such seriousness as to make it necessary to remove them from their post.

I would add that this sanction is imposed for the most flagrant disciplinary offences. In 2019 there were only a few cases where the Disciplinary Chamber of the Supreme Court ruled that an offence warranted such a severe penalty. Those cases concerned such matters as drunk driving and domestic abuse. These examples show that the basic role of the Disciplinary Chamber and its judges is to look at actions not only in terms of the law, but also with reference to ethical norms, adherence to which is a fundamental duty of every representative of the legal profession, including the Supreme Court judges sitting in the Disciplinary Chamber. It must also be remembered that all Supreme Court judges are obliged to pass judgments in accordance with their own conscience and with their oath of office.

Olivier Bault: As regards the conformance of Polish law with the constitution, interpretation is made exclusively by the Constitutional Court. Are we to understand from the CJEU judgment of November 19 that, as regards the conformance of Polish law with the general principles contained in the European treaties, interpretation might be made by all judges at every level? Is this not bound to lead to anarchy in Polish law?

Tomasz Przesławski: In the Polish legal system the Constitutional Court has the sole right to rule on whether provisions of Polish law conform with the country’s Constitution. There is no doubt that, when Poland joined the European Union in 2004, EU law became part of the Polish legal order. Hence, should a court have any doubts with regard to interpretation, it is entitled, depending on the nature of those doubts, to submit a legal question to the Constitutional Court or a prejudicial question to the Court of Justice of the EU.

Olivier Bault: Taking the CJEU judgment as a basis, on December 5 the Labour and Social Insurance Chamber of the Supreme Court, with three sitting judges (out of a total of 120 in the Supreme Court as a whole), ruled that the reformed National Judicial Council and the new Disciplinary Chamber did not fulfil the independence requirements laid down in the European treaties. Thus, on the basis of a CJEU judgment, three Supreme Court judges have authorised all Polish courts not to recognise those institutions. So we do indeed have anarchy. Is this not the case?

Tomasz Przesławski: The CJEU judgment does not give courts any authority to refuse to recognise generally applicable law in Poland, since as I have already said, the judgment is of an interpretative nature and applies only to the principal proceedings – in which prejudicial questions were submitted – being conducted by the Supreme Court’s Labour and Social Insurance Chamber. In no event can the CJEU judgment have any effect on the decisions of other Polish courts.

Olivier Bault: In that case, does the revolt by certain judges not result less from a desire to defend democracy, and more from a wish to uphold the existing status quo?

Tomasz Przesławski: I am not in a position to assess the individual motives of people who call into question provisions of the law in force in Poland. I have significant doubts as to whether they include concern for the good of the justice system, as many of the current actions of representatives of the legal professions can be seen as a threat to basic legal values, causing chaos in the legal system and a feeling of uncertainty among the public as to the validity of court judgments.

Olivier Bault: Will it be possible to break down the resistance of the rebellious judges without provoking too serious a conflict with Brussels? Are the revolt by Polish judges and the CJEU’s intervention not part of a general evolution in the Western democracies towards judicial dictatorship?

Tomasz Przesławski: On my part, as a judge of the Supreme Court, I feel a responsibility for the interests of the Polish Republic, which is a member state of the European Union. I discharge that responsibility by performing the judicial duties that have been entrusted to me by way of my appointment as a Supreme Court judge.

I would like to point out, however, that under the Treaty on the Functioning of the European Union the individual member states, including Poland, are fully entitled to reform their justice systems to enable them to function effectively in accordance with the rule of law, since matters of justice lie within the sovereign domain of the member states. Moreover, in the Treaty on European Union it is underlined that the Union respects the equality of member states with respect to the Treaties and the importance of their national identity, which is inextricably linked to their basic political and constitutional structures. This set of values is common to the member states in a society founded on pluralism, non-discrimination, tolerance, justice, solidarity, and the equality of men and women.

I can thus only appeal to representatives of the legal professions in Poland, including judges, to cease as speedily as possible those actions whose consequences may be interpreted as a threat to the stability and security of the Polish system of law, leading to conflict with the institutions of the European Union. I hope that the crisis surrounding the justice system will quickly come to an end, since an escalation of that crisis will not help either side of the conflict, and above all will do harm to our society.