Citizen! The courts are not for you!

“Citizen, the courts are not for you!”, or why is it that in the “restoring the rule of law in the courts”, the CITIZENS come last, despite the construction of a narrative on ensuring the “right to a fair trial”….

The dispute over the shape of the judiciary in Poland continues. The goal of the current ruling majority is to restore the situation in the judiciary from before 2018 by all means possible, and thus to effectively eliminate from the judiciary all judges appointed (or promoted) by President Andrzej Duda with the participation of the National Council for the Judiciary created by the Act of 8 December 2017 amending the Act on the NCJ. This concerns approximately 25% of the nearly 10,000 judges wearing the judicial robe. The announced intentions of those in power indicate, that the legal (and constitutional) constraints are virtually of no importance to them.

The government’s actions are openly supported by a part of the judicial community and every now and then new rulings are announced by courts challenging the status of fellow judges. Such rulings are overturned and the parties then wait for years for the case to be settled.

What is most astonishing, however, is that the justification given for this type of action is to ensure the parties’ right to a “fair trial”. However, let’s be honest – hardly anyone in this dispute cares for the parties to court proceedings.

In fact, for the average participant of a litigation in Poland (and there were 14.6 MILLION cases filed in 2022 alone!), the question of whether the judge ruling in his case is appointed by Lech Wałęsa, Andrzej Duda or Bronisław Komorowski is of NO importance. They want their case to be processed swiftly, reliably and fairly. And politely.

The issue of “political/ideological issues” is sometimes raised in the public debate. Yes, such issues do exist. However, they are present in less than one in a thousand of court cases. Nonetheless, they capture our imagination because they simply arouse the interest of the media.

Moreover, EVERY judge in Poland has some worldview. It is important, however, that he or she is able to “suppress” it in his or her adjudication and assess the case impartially, while applying the law in force. Naturally, not everyone is successful in doing this….

And now it is time to present a MODEL example of a court case in which NO ONE cares about the fate of the citizens.

On 29 January 2021, the First President of the Supreme Court asked the full panel of the Civil Chamber of this court, pursuant to Article 83 § 1 of the Supreme Court Act, to resolve a number of legal issues concerning the consequences of a ruling, which determines the unfair nature of the terms of Swiss Franc credit agreements. The matter is very important, as it concerns almost a MILLION households in Poland.

The Supreme Court’s resolution could unify the jurisprudence practice in Poland, streamline proceedings (many judges did not want to rule and suspended cases to wait for the Supreme Court’s interpretation) and increase legal certainty.

The full panel of the Civil Chamber of the Supreme Court proceeded to hear these issues in a session on 2 September 2021, with the participation of 21 judges, 7 of whom were appointed by the President of Poland on 10 October 2018, i.e., 14 of them were “old” and 7 were “new” judges.

Instead of analyzing the legal issues at hand, discussing the legal arguments and issuing a resolution that is important for the Polish people, the majority of members of the full panel of the Civil Chamber expressed doubts regarding the correctness of staffing of the panel and whether it had the status of an independent and impartial court. For, as is commonly known, the “new” judges who are ruling in the case are mere “politicians in togas”.

The majority of the Chamber decided to file a prejudicial enquiry with the Court of Justice of the European Union, which boiled down to the question of whether it was compatible with EU law for ‘old’ judges to rule with ‘new’ ones, and this was the resolution they passed in this case.

Now comes the best part: the Court of Justice of the European Union has a lot of cases and did not really have time to deal with the question of the Civil Chamber of the Supreme Court. It only did so on 9 January 2024 (reference C-658/22).

And what did it say?

The Court said that the prejudicial enquiry would not be answered because it was “OBVIOUSLY inadmissible”.