Some judges manipulate CJEU ruling, Polish PM says

The head of government noted that if there are any doubts regarding the legality of any of the constitutional bodies of the state, then the Polish Constitutional Tribunal will have to issue its opinion as it is the Tribunal, and "not general courts or even the Supreme Court that has the final say in our political system."

PAP: Prime Minister, last week the CJEU issued a ruling concerning the Disciplinary Chamber of the Supreme Court. Lawyers and judges offer differing interpretations of the ruling. Poland's Supreme Court (SN) officials point out that KRS should immediately stop all activity. What is your opinion of the consequences the ruling has for the Polish justice system?

Mateusz Morawiecki: The CJEU has confirmed that Poland's stance on the matter has been correct from the very beginning - the system of justice falls within the scope of competence of member states. Advocate General Evgeni Tanchev's opinion issued in June went in a completely different direction - it even included requirements, incidentally not based on any legal foundations, concerning the recommended shape of national councils of the judiciary. The Court in Luxemburg rejected this erroneous reasoning, and in no point of the verdict did it indicate that KRS or the Disciplinary Chamber were incompatible with European law.

PAP: First President of the Supreme Court Małgorzata Gersdorf said following the verdict that the government, the Sejm (lower house - PAP) and the Senate should take legislative action to amend the KRS and Disciplinary Chamber laws. Senate Speaker Tomasz Grodzki has not ruled out a legislative initiative concerning the ruling. Does the government plan any legislative changes on the matter?

MM: I don't know why the First President believes so, because the ruling doesn't imply anything like this. Let me stress, the CJEU has not found any breach of the law, has not indicated a single provision that would be incompatible with EU law. Our adversaries in the trial actually hoped for this, but they failed, as the ruling shows something completely opposite - according to the EU Court, the fact that judges are appointed by an executive body does not deprive them of independence. The Court also clearly said that European law does not indicate a single particular model of the judicial system, and even more so, a model with which the Polish KRS would be incompatible. And this was what the critics of the justice reforms hoped for. And it is very good that the CJEU has shared the view that we have been maintaining from the very beginning. A part of the judicial community are disappointed that the Court has not met those expectations - and they manipulate the ruling trying to persuade the public that the CJEU has challenged the legality of KRS. In reality, the Court has not said anything like this, confirming at the same time that the system of justice falls within the scope of competence of member states.

PAP: Under the CJEU ruling, it is the Supreme Court that is competent to assess the independence of the Disciplinary Chamber in order to determine whether it (the Disciplinary Chamber - PAP) can resolve disputes concerning the retirement of SN judges. The First President of the Supreme Court said a few days ago that it is possible that by Christmas the SN will issue a verdict in the case in which the CJEU received the requests for preliminary ruling on the independence of the Disciplinary Chamber. What verdict do you expect from SN?

MM: The CJEU gave certain guidelines to our courts, but they must make their own decision on how to assess them, taking into account not only this single CJEU ruling, but first of all being guided by the Polish Constitution as well as Polish and European law. If any court has doubts whether public bodies operate in line with Polish or international law, it should ask the Constitutional Tribunal for a verdict. Constitution is not only a slogan on a T-shirt and courts are obliged to abide by it.

PAP: And if the Supreme Court or other courts issue rulings in which they declare the KRS illegal?

MM: If there are verdicts in which some judges undermine the legitimacy of other judges, because they don't like the KRS line-up, we may see serious confusion. However, the responsibility for this confusion will fall solely on judges, because such rulings should be regarded as a de facto obstruction, as an attempt at usurping legislative competences. It is worth underlining that the current KRS has been appointed in line with Poland's Constitution, which was not the case in the past: its members had been for years appointed for individual terms, in breach of the Constitution, and the KRS was a non-representative body, it had hardly any representatives of district courts, who make up over 70 percent of Polish judges. There were also irregularities concerning the appointment of the current First President of the Supreme Court, as that procedure also turned out to be unconstitutional. If someone now started to undermine the rulings issued by judges since the early 1990s, rulings by the Supreme Court or by the judges that were appointed through the previous, unconstitutional KRS - then we would in fact see huge legal chaos. I hope it will not come to this, it depends on judges themselves.

PAP: It may turn out, however, that some judges will recognise the KRS and others will not. If such a situation arises, who will settle the dispute?

MM: A serious state cannot allow chaos. The Constitution states clearly that it is the Sejm (lower house) and the Senate that establish the law. Judges are to observe the law and apply it. They do not have to like it, they can be unhappy that certain decisions concerning, for instance, appointments of judges or disciplinary matters are no longer the domain of the judiciary but they have to act in accordance with these regulations. Especially if these regulations are good since every milieu should be subject to external evaluation. As if a bank credit department evaluated for itself whether its operations are proper - and every bank has an audit department, which has to look from the outside, in an objective way.

And it is completely inconceivable that judges can break the law. All the more so as they are often politically-motivated, with many of them not hiding this. How are average citizens to observe the law when they see that people - whose most important task is to guard over the rule of law - do not respect it? This very strongly undermines trust in the state. We will firmly oppose this. If need be, if there are any doubts regarding the position of any of the state constitutional bodies, the matter will have to be settled by the Constitutional Tribunal, since it is the tribunal and not common courts or even the Supreme Court, which is the court having the final say on the matter in our socio-political system. The Constitutional Tribunal evaluated KRS-related regulations in March and decided that they were compatible with the Constitution. Neither the Supreme Court nor common courts can ignore this ruling.

PAP: In connection with the CJEU ruling, judges from Wrocław, Poznań, Białystok, Gdańsk and Kraków adopted a resolution under which they will refrain from evaluating candidates for judicial promotion until the Supreme Court has issued its decision regarding the CJEU verdict. What do you think about such moves?

MM: This is a very interesting aspect. There are over 10,000 judges in Poland, while in France - which has nearly 70 million residents - around 7,000. Taking into account the relation of the number of judges to our population, Poland is in the lead in the EU. And despite this, Polish courts are among the slowest and least effective in Europe. For many years, judges have maintained that too few judges was one of the causes of the excessive duration of court proceedings, and that it was necessary to employ more. I do not fully agree with this but we have decided to meet their demands halfway, we want to appoint new judges, to increase their number. And now, when the KRS wants to appoint them, the same judges, who demanded this earlier, are now trying to halt this. And they do not worry too much that this might prolong the duration of trials even more. In my view, this is gross hypocrisy. It turns out that the political activity of some of judges' milieu increases the ineffectiveness of courts and makes citizens wait longer for verdicts. I hope that this will change since it should be our common task to make the Polish judicial system more effective while the delay in evaluating candidates for judicial promotion will surely negatively affect this efficiency. (PAP)