THE ARGUMENTS OF POLISH JUDGES ASSOCIATION IUSTITIA RELATED TO THE PM MATEUSZ MORAWIECKI STATEMENTS AT THE MEETING WITH FOREIGN JOURNALISTS ON JANUARY 10TH, 2018.

Polish Prime Minister Morawiecki:

There was no revolution after 1989 (the fall of communism in Poland). There was a transformation ... On the one hand, the post-communists maintained real power in the country. I was myself often facing the real brutality of the communist regime in the 1980s and saw the same judges, the same faces, in the 90s and 2000., actually at the top of the structure of the judiciary. In judiciary, politics, executive power, business ... even today if one looks at the resumes of the CEOs of key private companies, they come from communist times. The richest 100 people in Poland, probably 90% of them, maybe 80 % ... are communist secret service officers, sometimes brutal murderers of my brothers from the 80s, or collaborators of the comrades from the Communist Party.”

Iustitia:

It is incomprehensible to combine judges with the business community or the top 100 richest people in Poland. The Supreme Court after 1990 was one of the most screened institutions. In 1990 the term of office of all Supreme Court judges nominated in times of communism expired and its entire composition was reestablished with the participation of the newly created (by Solidarity government) National Judicial Council. The new composition included only 22 judges of the previous Supreme Court, the most outstanding, credible and uncompromised:

  • 11 judges out of the total number of 31 remained in the Civil Chamber,
  • 3 judges from the total number of 47 remained in the Criminal Chamber,
  • 3 judges from the total number of 14 remained in the Chamber of Administration, Labour and Social Insurance,
  • 5 judges from the total number of 19 remained in the Military Chamber.

That means that 98 judges (81% of total number of all Supreme Court  judges) have been "verified". So harsh, thorough and effective "verification" probably did not occur in the early 90s, in any environment, body or professional group in  Poland.

In present Supreme Court, there are only few judges presiding, who held the post during the martial law, but none of them can be accused of any kind of misbehaviour at that time. If this is the case, then current authority should perform an individual assessment rather than total political cleansing. (this is also the assessment of Professor Adam Strzembosz, the icon of the Polish judiciary and the First President of the Supreme Court in 1990-1998, http://wyborcza.pl/7,75398,22936039,sztrzemsz-ze-sedzieach-sad-najwyzszego-wachowali- Aug-przyzwoicie.html

Under the new law the legendary figures defending human rights during communist regime in Poland, who now serve in Supreme Court (such as, for example, Stanisław Zabłocki – defender of opposition activists in the communist era, Józef Iwulski - Solidarity's court activist in the 1980s, and many others, meritorious in actions for the observance of human rights) will be forced to retire prematurely.

[Meanwhile, the Parliament dominated by PM’s party, designates Stanisław Piotrowicz as a Chairman of the Parliamentary Committee on Justice and Human Rights. Ironically, Stanisław Piotrowicz is a former communist prosecutor and member of the Polish communist party, who persecuted oppositionists and for his loyalty received the Bronze Cross for Valor from communist government, he is now leading the “reforms” devastating Polish judiciary.

Besides, it was the current ruling party that promoted a decade ago one of those few “evil” judges involved in the trials against oppositionists (in 2005 - 2007, when current ruling party was in power, the government of Prime Minister Jarosław Kaczyński nominated as a deputy minister of justice a communist judge Andrzej Kryże, a judge who administered jail penalties for oppositionists organizing celebrations of the Independence Day in ‘80s).  There are documented cases where the Minister of Justice - under applicable law - refuses (without any justification) to accept the extension of the post to judges who have turned 60 (recently reduced retirement age of 60) and agrees to extend a post to a judge who was an employee of the communist ministry of justice in 80’s, during martial law.

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 Polish Prime Minister Morawiecki:

The judicial system is one of the key elements that helps understand what has happened in the last 30-35 years in Poland. In DDR (East Germany) all the judges were inspected/screened in 1991. Only 11 percent of judges in Berlin remained on their offices,. And only 33 percent of judges in the former East Germany remained judges and prosecutors in the new eastern Germany. Nothing like that took place in Poland. It was a bit of it in the Supreme Court. Regarding the common courts is 7,000 or 8,000 judges, whose behavior in the 70s and 80s was terrible, it was terrifying, sometimes it was criminal, they actually entered a new era without any changes one-to-one. I hated it because I felt that this was the highest injustice.

 

Iustitia:

Poland cannot be compared with Eastern Germany, because out of 4 500 judges in the 80's, up to 1000 were members of Solidarity movement – an act which required exceptional courage and could cost a career at minimum. Of course there were also people involved in shameful trials, but the vast majority of them - due to the pressure of the other judges, and also to avoid the screening procedure had resigned  from offices at the early 1980s. According to prof. Adam Strzembosz (the first President  of the reformed Supreme Court after the collapse of the communism) there were several dozens of  judges with an infamous past. But today, due to biological reasons, most of them are gone.

Possible negligence regarding the verification of this sparse group shall be attributed to politicians, including the founding fathers of current ruling party (PiS), since despite strong arguments given by prof. Strzembosz, Lech Kaczyński (who in the 1990s was the Minister of Justice) refused to deal with this matter (page 161 of the  book - interview with the professor Strzembosz: "Between law and justice ").

Contemporary judges, with average age of 44, cannot be blamed for negligence of politicians who did not introduce the system of verification 30 years ago, as the Prime Minister expects today.

It should be noted, that for many years already, the judges are obliged to submit declarations revealing whether they were collaborators of secret services during communism. Failure to submit one or giving false information means immediate disciplinary proceedings resulting in removal a judge from office (e.g. the judgment of the Supreme Court of 17 May 2005 SNO 22/05).

 

Polish Prime Minister Morawiecki:

They have gone from the previous era in which they had minimal independence and maximum responsibility, to something quite opposite: minimum responsibility, but maximum independence ... The disciplinary chamber does not work. The only screening, presented in 1998, was ineffective because of the 48 cases brought by this legislation judges judging other judges concluded that none from judges who were clearly guilty of court offenses, cannot be prosecuted or subject to any disciplinary action. This group is very happy with total independence was not able to remove corruption.

 

Iustitia:

See previous comment - the average judge is 44 years old. In 1989 average judge was a teenager. (source:

http://www.kancelaria.lex.pl/czytaj/-/artykul/coraz-starsi-sedziowie-orzekaja-w-sadach)

 

Polish Prime Minister Morawiecki:

In 1990 there were 100 judges from the darkest communist era, committing criminal crimes that they had sentenced death penalties for our heroes fighting for democracy in the fifties, sixties ... and none of them were prosecuted. If you ask someone on the street: if those judges from the Stalinist era were really guilty when the militia was shooting workers on the street, everyone or 99 percent would say: of course, they were very bad people. But nothing happened. Of those who still live in 1990, no one was ever tried or prosecuted.

 

Iustitia:

A judge, age 30,  working in ‘50s, during Stalinism era, would be 70 years old in 1990. So he would be retired in any case. This misinformation of PM is going a bit too far…

Why 30 and 40 y/o judges, grown and educated in democratic Poland, nominated to posts by democratically elected Presidents of Poland shall bear imaginary responsibility for communist judges sentencing people during Stalinism era, 68 years earlier?

If Mateusz Morawiecki knows any such cases, that he is describing, he should report a crime to proper authorities or initiate criminal proceedings, which he never did. It's the role of the prosecutor's office to collect crime evidence in individual cases and form an indictment. However, PM’s arguments about the events happening 68 years ago, cannot justify the political subordination of the judiciary – exactly the same type of subordination that existed in times of darkest communism.

 

Polish Prime Minister Morawiecki:

(We have) situations in the judicial system that are extremely frightening (burning).The reform introduces random allocation of cases. Earlier, the journalist phonedjudge Milewski (the chairman of the Regional Court in Gdansk), and Judge Milewski said that in the biggest scandal bank in this country (Amber Gold) ... he will assign the case to the appropriate judge to judge, that the Prime Minister should not be afraid, everything will be fine. And nothing happened ... This judge is still in office in Bialystok. He was transferred from Gdańsk to Białystok. In my opinion, this offends democracy.

 

Iustitia:

Judge Milewski was sentenced to the most severe disciplinary punishment, beyond removal from the office. He was transferred to another court, located a few hundred kilometers from his place of living. Contrary to the suggestion contained in the PM’s statement, Milewski had no influence on the allocation of a case to a particular judge, as well as setting a specific date for the hearing.

The extract from the Supreme Court disciplinary ruling says:

“The deed of the perpetrator judge must be qualified to the category of serious disciplinary offenses. This does not mean, however, to consider him a person, with the total lack of qualities necessary to perform the judicial function. The act proven to the accused does not demonstrate, that in progress of the telephone conversation he showed full submissiveness and real availability towards representatives of government bodies along with readiness to follow their instructions. As it has been determined, the composition of the court to consider the complaint for the arrest of the Company president  "A. (...) G. (...)" S.A. and the date of hearing had already been established before the provoked phone conversation, but during this conversation the accused pretended to have powers to influence what decisions will be taken in the certain issues and, that he is ready to solve it in the way expected by the interlocutor. Thus, the complainant's assertion goes too far, considering the violation of basic principles by the defendant, as well as the functioning of the judiciary and its independence from the executive power, having in mind provisions of the Constitution of the Republic of Poland. If so, it is not justified to demand the highest disciplinary penalty, i.e. the dismissal a judge from the office, and therefore the penalty imposed by the Court of the first instance is not grossly gentle. However, it should be considered too gentle, and thus demanding more severe penalty. In the result it is appropriate for the offender to be transferred to another place of the service."

The prime minister refers to Milewski`s case, while for a year or so, in broad daylight, de facto political corruption is in progress. New regulations increased the dependence of the presidents of courts from the Minister of Justice (and it should be noted that the new rules also made the Minister of Justice and Prosecutor General the same person), because he can dismiss the presidents of the courts and appoint new ones at will, without any justification or consultation with the judges.

The public opinion is troubled by such matters as judge Sowul, who ten days before the verdict on the appeal against the critics of the current authorities, meet with deputy minister of justice, Łukasz Piebiak. The sentence was given according to the government’s expectation. Soon after, judge Sowul took the post of the president of the court (and current president was quickly dismissed).

Over 100 presidents and vice presidents of courts have been dismissed so far (this number is growing every day). Very often, the dismissed learned the facts from an overnight fax or read the information on the Ministry`s website (http://iustitia.pl/informacje/2052-juz-107-prezesow-i-wiceprezesow-zostalo-odwolanych-przez-ministra-sprawiedliwosci).

Many of the newly-appointed court`s presidents have disciplinary records, including embezzlement of court assets (District Court in Olesno, woj. Opolskie), or mobbing (District Court in Rybnik). Most of them are socially connected with employees of the Ministry of Justice.

 

Polish Prime Minister Morawiecki:

Two judges, one of the Supreme Court and one of the Supreme Administrative Court,were recorded only three years ago. They agreed the decision, clearly breaking the procedure - and nothing happened. And one of the judges said he was going to Thailand, forgive my brutal language, have sex with very young people. This is pedophilia - nothing happened. No disciplinary action has been taken. No disciplinary action.

 

Iustitia:

Illegally obtained record of conversation does not contain any facts about agreeing the court verdict. The judges in question merely discussed how a specific procedural letter is written (cassation complaint). Above all, the prosecutor's office controlled by PM Morawiecki’s government (and led by Minister of Justice who is also Prosecutor General), did not find any traces of crime. Finally, contrary to alleged interests of the caller, the cassation appeal was not accepted in the pre-trial hearing in Supreme Court.

A statement about pedophilia means that the Prime Minister again, either did not notify the law enforcement authorities about a crime punishable by up to 12 years imprisonment (so he abuses the law himself) or he is perfectly aware that there is no crime at all.

 

Polish Prime Minister Morawiecki:

I do not want the Minister of Justice to control the judiciary ... I want the Disciplinary Chamber to be effective ... Before that, the Disciplinary Chamber was completely ineffective because it never brought the matter to an end. It was the opposite. Can you imagine that the Supreme Court decided that the judge could lie? Because the judge was fined for speeding, and his face was on the camera ... the speed camera ... and then the whole case went to the Supreme Court and of course the face was there. But the judge said, this is not my face, but every child will say it's your face. And the Supreme Court said that the judge could lie. And an ordinary citizen would be fined or even imprisoned in this situation in accordance with the Polish criminal code.

 

Iustitia:

The case of the speeding judge: Poland is (was) the state of law. That means that any defendant, including judge, may exercise its rights to defend himself, like any other citizen. A judge was speeding, 14km/h and had a picture taken by speed camera. He pleaded not guilty, claiming that he wasn’t the driver. The disciplinary court found him guilty of obstruction of justice (his face was easy to identify). He appealed to the Supreme Court, which ruled that everyone, including a judge, has the constitutional right to reject the charges including “claiming not guilty” and to use any means to defend himself. The Supreme Court decided that the judge’s behaviour was within the “minimum acceptable limits of the right to defend himself” drafted by the Constitution of the Republic of Poland. The decision of the Supreme Court did not refer to him being “guilty or not” of speeding. It was about his right to defend himself.

Regarding the effectiveness of disciplinary proceedings: in 2015, “Law and Justice” government (where he was vice-PM, now PM) had already established special prosecutors’ unit with the objective to fight “skyrocketing” crime in judiciary. After 18 months of work of 8 dedicated public prosecutors, they managed to initiate just 20 investigations resulting in two judges charged of road traffic offences. Meanwhile, judges themselves initiate and proceed 50 cases of misconduct annually in the courts. And there are 10.000 judges in Poland. That’s 0.5% offending judges. Perhaps there are cases that Morawiecki knows about and forgot to inform the “special prosecutors unit”, but that’s unlikely, as hiding the crime would be a crime too.

 Polish Prime Minister Morawiecki:

In 2008, the Supreme Court issued an extremely important ruling, which changed everything, that all tax fraud related to VAT (carousel) and missing trade links would be subject to the fiscal penal code, not the penal code. It changed everything. From the country that had the lowest VAT gap, we went to the country that has the highest VAT gap. The court system has defended this very bad change

 

Iustitia:

In short, Prime Minister Mateusz Morawiecki claims that:

1. The Supreme Court issued a judgment reducing the penalty for VAT fraud.

2. As a result of the sentence, the gangsters began to extort VAT refunds, which means that the State Treasury lost billions of zlotys.

3. If it were not for the Supreme Court judgments, taxes would be lower.

In fact, the Supreme Court issued in 2008 issued two judgments (II KK 347/07 and V KK 76/08), in which accepted that extortion of VAT refund was a crime subject to the Fiscal Penal Code (Article 76 paragraph 1), and not Penal Code (Article 286, paragraph 1). However, contrary to the suggestion of Mateusz Morawiecki - qualifying the VAT fraud as a tax offense in 2008 did not mean lower penalty for fraudsters.

This is what the regional court considered, but it was the Supreme Court in the justification of the cassation of March 19, 2008, which ruled just the opposite. The Penal Code provided a penalty of six months to eight years imprisonment, and the Penal Fiscal Code - up to ten years.

However, if we try to accept this interpretation, that the verdict of the Supreme Court encouraged the extortion of VAT refunds, it should be also clear, that if the Supreme Court changes its mind, frightened fraudsters should immediately withdraw from illegal activities. And meanwhile, the Supreme Court changed its mind - in the judgment of 2013, it concluded that the VAT fraud is indeed a criminal offense (judgment of 10 July 2013, reference number II KK 20/13).

Now, in 2013 the VAT gap size as a percentage of GDP did not change, in 2014 it fell by 0.5  percentage points, to increase by 0.6 percentage points in the following year. Therefore, there is no statistical proof that the Supreme Court's judgments had any influence on the scale of VAT extortion.

Even if the Supreme Court's qualification of VAT fraud really resulted in lower penalties for fraudsters and if another Supreme Court judgment effectively deterred cheaters, the judges of the Supreme Court cannot be blamed for the effectiveness of taxes collection in Poland. The judges discussed what kind of crime VAT fraud belongs to, not how many years in prison a fraudster should spend or what rules would best protect the interests of the Treasury.

It is the role of the legislator, i.e. the government, deputies and senators, to shape the regulations, and the tax service or the prosecutor's office and the police to enforce them. And there are the fraudsters themselves who are responsible for extortion, not the court.

 

Polish Prime Minister Morawiecki:

(Effectiveness): We have 10,000 judges. There are 7,500 judges in France, and France is a much larger country. There are 5,000 judges in Spain. Our expenses on the court system are 1.77 vis á vis our budget. The average for the EU is 0.64 ... So we have by far the least effective judicial system. Why is this? Because we have such a limited, closed ... group of people who have extremely good conditions.

 

Iustitia:

The Prime Minister is right about the number of judges in Poland. And only there…

Spain in 2016 had 7.687 judges of peace and 5.692 professional judges (13.137 in total) - data for 2016 from the Spanish national judiciary: (http://www.poderjudicial.es/cgpj/es/Temas/Estadistica-Judicial/ )

In 2014, in France, 6.035 professional judges, 24.941 permanent non-professional judges and 510 occasional non-professional judges (Systèmes judiciaire européen. Efficacité et qualité de la justice, no. 23, data for 2014); study available at

http://www.coe.int/T/dghl/cooperation/cepej/evaluation/2016/publication/REV1/2016_1%20-%20CEPEJ%20Study%2023%20-%20General%20report%20 -% 20FR.pdf

Thus a total of 31.856 French judges are adjudicating on a permanent basis - recognizing cases and 510 judges serve occasionally (as jurors, etc.). INSEE statistics for the years 2014 and 2015 indicate, respectively, 31.036 and 31.641 full-time equivalents judges in France.

https://www.insee.fr/fr/statistiques/1906692?sommaire=1906743

Regarding the financial issues, the official EU statistics give somehow different picture than PM Morawieckis’ statements. Polish courts budget (per capita) are close to EU average (EU: 36 EUR per capita, PL: 37 EUR per capita)

 

Source: European judical systems. Efficiency and quality of justice. CEPEJ Studies No.23

And if we consider the relation between speed of resolving cases in polish courts (4th place in EU) and the level of funding (18th place in EU) then the effectiveness of judiciary is obvious.

 

 

Polish Prime Minister Morawiecki

REMUNERATION, for example in Germany, a beginner judge is approaching the average salary ... In Poland, the judge's salary is double in this respect. It is therefore very beneficial for the judges to get into this system.

 

Iustitia:

First of all to get into this system, one has to go through a very long education with a number of exams, interviews, psychological tests and so on. The German case is so much irrelevant, because different solutions have been adopted in each Land. Perhaps in the whole country there are Länder, where the novice judge - a judge at the rehearsal - earns about the average, but it increases very quickly. Moreover, polish judges earn less than many lawyers of other professions, such as notaries, attorneys, etc. The judge's remuneration in Poland falls within the standards of the Venice Commission. Moreover, Venice Commission praises Poland for current state:

“The Venice Commission shares the opinion that the remuneration of judges has to correspond to the dignity of the profession and that adequate remuneration is indispensable to protect judges from undue outside interference. The example of the Polish Constitution, which guarantees to judges remuneration consistent with the dignity of their office and the scope of their duties is a commendable approach”. - (Report on the independence of the judicial system, March 2010)

It is also important to highlight, that the newly introduced disciplinary judges in the Supreme Court will earn 40 percent more than the other judges of the Supreme Court.

The analysis of property statements (which every judge is supposed to produce every year), which DGP (Dziennik Gazeta Prawna) conducted, show that judges live with dignity, but without extraordinary glamour. Most of them drive several-year-old cars. Brands such as Toyota, Honda and Ford dominate. Mercedes and Lexus can be counted on the fingers of one hand. The adjudicates in the Supreme Court do not spend money on movable property worth over 10,000. zł. Only two judges indicated that they have RTV equipment worth more than this amount. Only one judge has an expensive watch. The statements also list one horse…Similarly, one of the judges stated that he collects precious metals. It is also known that the judges do not collect books. Only one person declared that her library is worth over PLN 10,000 (EUR 2500) (see:

http://prawo.gazetaprawna.pl/artykuly/1054908,majatki-sedziow-oswiadczenie-majatkowe.html)

 

Polish Prime Minister Morawiecki

 Now it will be transparent, because there is a random allocation of cases.

 

Iustitia:

Until now, at least in district courts, a random allocation of cases based on the order of registration was present. This solution met international requirements (recommendations of the Committee of Ministers of the Council of Europe No. R (94) 12). In any case, the citizen was able to determine on what basis his case went to a particular judge.

The central system of random case assignment to judges is fully controlled by the Minister of Justice - Prosecutor General, i.e. by the party or potential party to court proceedings, which is contrary to international standards (ECHR ruling of 10.102000, Daktaras v. Lithuania - no. 42095/98). Since the change of law, the parties of the proceeding have no longer control over the judges assignment - that is, they cannot get information about the criteria of assigning their judge managing their case. It is worthwhile to note that this random system will not be introduced in the Constitutional Tribunal and the Supreme Court, where politicians already have secured the influence on the election of presidents and entrusted them with case allocation.

The Ministry refused to provide non-governmental organizations with the drawing algorithm and the source code. Since all information about drawing algorithm and code are secret, we can as well assume that there is no drawing system and the judges are assigned manually by a trusted employee of the ministry.

 

Polish Prime Minister Morawiecki

Now it will be fair, we will repair errors and distortions – (about extraordinary complaint)

 

Iustitia:

The extraordinary complaint will result in disastrous legal uncertainty, since all judgments from the last 20 years can be challenged and re-assessed by the body elected by politicians:

  • one non-professional juror will be elected by the Senate’s ruling party majority
  • two Supreme Court judges will be elected by a new, politicized National Judicial Council.
  • the formation of the court may also include common court judge assigned to the Supreme Court by the Ministry of Justice.

From now on, any business or a person that once won a case against the company owned by the State, a State Treasury or a politician, cannot be sure whether the sentence will stand. Regardless of whether the extraordinary complaint is accepted - the very introduction of this mechanism will result in the collapse of state institutions, including the Ombudsman.

The violation of legal stability rule will apply to all cases from the last 20 years, this is 60 million judgments. Such regulation violates the principle of citizen's trust in the state.

 

 Polish Prime Minister Morawiecki

 The new disciplinary chamber will clean the judiciary – at last

 

Iustitia:

The new regulations introduce the inquisitorial process, which will concern not only judges, but also other lawyers: attorneys or legal advisors.

Under the new regulations, the Prosecutor General, who is also the Minister of Justice, will appoint judges adjudicating disciplinary cases as well as prosecutors in the same case. Thus, he will be in full control of the trial. Disciplinary proceedings will be either very quick (3 months), or the Minister of Justice, using his powers, will be able to lead a never ending  disciplinary action against the judge (which means suspension of the lawyer for the time of the disciplinary action). If we take into account the statements of the ruling party's politicians directly pointing to the future use of disciplinary proceedings against specific judges or groups of judges (for instance those applying international law or applying the constitution directly), it will be an obvious repressive measure against judges.

The Disciplinary Chamber will not only be formed in the Supreme Court.

A disciplinary court will be appointed at each court of appeal. It will consist of judges with at least 10 years of service, directed to this court by the Minister of Justice, regardless of their duties in the home court. As a consequence, there will be a special court, independent of the court at which it was established at each court level.

Moreover the judges to the disciplinary court will be appointed by the Minister of Justice, based on arbitrary (not disclosed to public) criteria. The only formal requirement for the judge is to be in service for 10 years.

polish version:

http://iustitia.pl/informacje/2064-polemika-stowarzyszenia-sedziow-polski-iustitia-z-wypowiedziami-premiera-mateusza-morawieckiego-na-spotkaniu-z-zagranicznymi-korespondentami-w-dniu-10-01-2018