CONTENTION

“In 1990, the entire Supreme Court was dissolved, with only about 20 percent of the Communist-era judges (all judges from the criminal chamber) allowed to keep their posts. Those who judged political cases in line with the Communist regime were expelled from the Supreme Court.

Most of the remaining judges from the Communist era have long ago retired, such that the average age of judges in Poland today is about 40 years old. And the National Judiciary Council, in conformity with the Polish Constitution, is an independent body free of political influence.”

- Michał Wawrykiewicz et al., “Poland’s government is undermining the rule of law,” The Washington Examiner, January 2, 2018.


RESPONSE

Many judges, particularly in the upper tiers of the Polish judicial system, have a communist pedigree. Many of them also fail to mention their past communist affiliations in their official biographies.
 

  • In 1990, according to the Supreme Court’s official site, 22 out of 57 judges (38.6 percent) served on the previous communist Supreme Court.
     

  • Although the average Polish judge might be in his or her mid-to-late 30s, it has risen in recent years. The youngest judges typically serve in lower-level courts while upper-level and appellate court judges are often in their mid-50s.

Communist Pedigrees Still Common


The Supreme Court

    • In December 1989, legislation was passed amending the constitution; the changes relevant to the Supreme Court abolished five-year terms and made its judges – who were now to be suggested by the National Judiciary Council - irremovable. The Supreme Court’s term was also shortened and scheduled to end on June 30, 1990.
       

      • Jaruzelski, as the first president of the Third Polish Republic, nominated all of the Supreme Court’s judges on June 4, 1990.
         

      • According to the Supreme Court’s official site, 22 out of 57 judges (38.6 percent) served on the previous Supreme Court (five from the Chamber of Administration, Labor, and Social Insurance; eleven from the Civil Chamber; three from the Criminal Chamber; and five from the Military Chamber). (The fact that the remaining 35 judges had not served on the communist Supreme Court of 1986 – 1990 does not mean that the new judges had not been Communist Party members at one time or another.)
         

      • A particularly glaring case of persisting communist influence is that of Janusz Godyń, who headed the Military Chamber without interruption from 1990 to 2016. He was a Communist Party member and a communist military judge during the 1970s and 80s (Maciej Marosz, Resortowe togi, 2017, pp. 178-180).
         

      • Other nominees from 1990 – such as Tadeusz Ereciński and Lech Paprzycki – had communist affiliations: Ereciński collaborated with the communist secret police (Marosz, p. 181-182) and Paprzycki belonged to the pro-communist satellite peasant party (Marosz, p. 183).
         

      • In 2017, fifteen Supreme Court judges from the last communist Supreme Court term (1986 – 1990) still remained (Marosz, p. 220).
         

    • The Supreme Court has a record of opposing the vetting (lustracja) of former communists.
       

      • For instance, the Supreme Court cleared numerous politicians of the charges of lying about their vetting status (kłamstwo lustracyjne, i.e. lying about the fact of having been an informant or collaborator of the communist secret police), in spite of the fact that other, lower-level courts had previously upheld the charges (Marosz, p. 167).
         

    • Supreme Court presidents:
       

      • Adam Strzembosz (1990 – 1998), a non-communist but simultaneously an opponent of vetting out communists; he once claimed that the judicial milieu in Poland will eventually cleanse itself (Marosz, p. 213).
         

      • Kwaśniewski nominee Lech Gardocki (1998 – 2010) – a Communist Party member until the declaration of martial law in December 1981 – and an opponent of vetting/decommunization. Gardocki’s academic mentor had been Igor Andrejew, a Stalinist-era judge who participated in the judicial murder of the underground resistance hero, Gen. August Fieldorf “Nil” (Marosz, pp. 213-217).
         

      • Stanisław Dąbrowski (2010 – 2014), a Komorowski nominee. He was a judge during the communist period but also a Solidarity activist.
         

      • The current First President (as of 2014) of the SC is Małgorzata Gersdorf (born 1952). She was nominated by President Bronisław Komorowski. Gersdorf was an activist in the communist youth movement during the 1970s and the daughter of long-serving communist judges (Marosz, pp. 173-174).


Tribunal of State

  • Małgorzata Gersdorf (see above), the First President of the Supreme Court, is simultaneously the head of the Tribunal of State.


The Constitutional Tribunal

  • The heads of the Constitutional Tribunal include:
     

    • Mieczysław Tyczka (1989 – 1993). Although he was a Solidarity expert during the 1980s, Tyczka simultaneously remained a member of the Democratic Party [Stronnictwo Demokratyczne], one of the Communist Party’s satellite organizations.
       

    • Andrzej Zoll (1993 – 1997). A Solidarity expert associated with the liberal wing of the movement; participant of the Round Table talks. An opponent of decommunization. One example of this was that Zoll, as a Constitutional Tribunal judge, ruled to suspend the parliamentary resolution to authorize the Ministry of the Interior to publish the names of government officials whose names appeared in communist secret police archives (Marosz, pp. 122-123).
       

    • Marek Safjan (1998 – 2006), a Kwaśniewski nominee, opponent of vetting, and son of Zbigniew Safjan – a communist officer, writer, and propagandist. In 2009, Safjan became a judge on the European Union’s Justice Tribunal (Marosz, pp. 125-126).
       

    • Jerzy Stępien (2006 – 2008). Nominated by Lech Kaczyński. Although Stępień had a long Solidarity pedigree, it was during his tenure that the Consitutional Tribunal took great efforts to blunt and contain the Law and Justice party’s attempts at broad vetting/decommunization (Marosz, pp. 139-145).
       

    • Bohdan Zdziennicki (2008 – 2010). A Kaczyński nominee. During the 1970s, he had been a Communist Party member and worked for the communist regime’s Justice Ministry. He is the husband of Supreme Court/Tribunal of State/NJC head Małgorzata Gersdorf.
       

    • Andrzej Rzepliński (2010 – 2016) a Komorowski nominee whose official biographies boast of his participation in the Solidarity movement during the 1980s but omit his Communist Party membership during the 1970s (Marosz, p. 90-91).
       

    • Julia Przyłębska (as of December 21, 2016). A former anti-communist student movement activist during the 1980s, she was nominated by President Duda.
       

  • The Constitutional Tribunal has a long history of attempting to limit vetting (lustracja) as much as possible.
     

    • In May 2007, the Constitutional Tribunal ruled that many provisions of the Law and Justice-backed vetting law of October 18, 2006 were unconstitutional and inconsistent with international law.
       

    • On April 2, 2015, the Constitutional Tribunal ruled that a judge cannot be held accountable even if he/she files a false vetting declaration (i.e. if the judge falsely claims that he or she was never a collaborator of the communist secret police).
       

    • Even if the Institute of National Remembrance has doubts as to the veracity of the judge’s vetting declaration, the judge nevertheless retains his immunity, which can only be lifted if other judges agree.


National Judiciary Council

  • The NJC’s presidents:
     

    • Stanisław Zimoch (1990 – 1994). A long-time communist judge (Marosz, p. 319).
       

    • Adam Strzembosz (1994 – 1998). See section on Supreme Court above.
       

    • Włodzimierz Olszewski (1998 – 2002). Involved with Solidarity during the 1980s as a
      legal expert; also opposed decommunization and vetting. 
       

    • Stanisław Dąbrowski (2006 – 2010). See section on Supreme Court above. 
       

    • Antoni Górski (2010 – 2014). A judge in communist Poland during the 1970s and 80s.
       

    • Roman Hauser (2014 – 2015). A legal scholar during the communist period, he was a specialist on “National Councils” [Rady Narodowe], institutions of façade local government modelled on the Soviets in the USSR. Hauser was one of the judges appointed to the Constitutional Tribunal – on the last day of the legislative period – by the Civic Platform government of Ewa Kopacz. His nomination was overturned as “no longer legally binding” [brak mocy prawnej] by the combined votes of the Law and Justice party and the Kukiz ’15 movement; as a result, Hauser was never sworn in by the President.
       

    • Dariusz Zawistowski (2015 – 2018). A judge in communist Poland during the 1980s, when his father was the Provincial Prosecutor’s Office in Legnica (his mother was a Communist Party activist). In January, 2018, he resigned in protest against the Law and Justice government’s judicial reforms.
       

    • Małgorzata Gersdorf (January 2018 – present).


Supreme Administrative Court

  • The Supreme Administrative Court’s presidents:
     

    • Adam Zieliński (1982-1992). A long-time Communist Party member, Zieliński held numerous judicial and government posts in both communist and post-communist Poland. In 1996 – 2000 he served as the Spokesman for Civil Rights.
       

    • Roman Hauser (1992 – 2004, 2010 – 2015). He was nominated to the Supreme Administrative Court presidency by Presidents Wałęsa and Komorowski respectively; during the 2004 – 2010 interlude, he held high positions in the Supreme Administrate Court. See the section on National Judiciary Council above for more details.
       

    • Janusz Trzciński (2004 – 2010). In 1989 – 1991, Trzciński served as a Communist Party (PZPR) deputy in the Sejm. Afterwards, he served on the Sejm’s Constitutional Committee (which was in charge of drafting a new constitution). From 1993 to 2001, he served on the Constitutional Tribunal as one of its vice-presidents. After his term as President of the Supreme Administrate Court ended in 2010, he served as one of the court’s vice-presidents.
       

    • Marek Zirk-Sadowski (2016 – present). Appointed by President Duda. There is very little information available about his political past, but he was previously appointed Vice-President of the Supreme Administrative Court by both Aleksander Kwaśniewski (2004) and Bronisław Komorowski (2015).


Other Problems (Corruption, Lack of Transparency, Legal Inconsistency)

  • In 2012, during a period of austerity and salary freezes, judges sued the government in their own courts and awarded each other hefty sums in damages.
     

  • In 2016, a judge managed to avoid penalties for loan sharking because his fellow judges took so long to deliberate the suspension of his immunity that he was able to return to the bench unpunished.
     

  • The National Judiciary Council rejected a highly respected professor for the post of judge of the Provincial Administrative Court in Wrocław in favor of a much less experienced son of Leon Kieres, a former Civic Platform senator and current Constitutional Tribunal judge.
     

  • In 2017, the Vice President of the National Judiciary Council and head of the Military Court in Warsaw, Col. Piotr Raczkowski, received a positive recommendation from the Supreme Court to become a judge of that court.
     

    • He was a baker, quartermaster officer, and Communist Party member during the communist era; in 1989 he received a law degree despite earning mediocre marks.
       

    • He has been accused of such excesses as using business vehicles for personal ends and an alcohol-fueled altercation with another judge.
       

    • In 2015, the National Judiciary Council unanimously voted to appoint Raczkowski’s wife to the Warsaw Mokotów District Court (from among 94 candidates).
       

  • The Supreme Court headed by Małgorzata Gersdorf refused to publish the complete records of Supreme Court bank card usage by individual judges, in violation of the law and a verdict by the Supreme Administrative Court.
     

    • Such information was demanded by a transparency watchdog organization, but the Supreme Court at first refused and, later, published information only for certain years and with the names of judges excised (Marosz, pp. 171-172).
       

  • In early 2017, Gersdorf threatened to run over a tent city of protesters in front of the Supreme Court with her car. When confronted with the accusation that she was making a legally punishable threat, she dared the demonstrators to arrest her (Marosz, pp. 174-175).
     

  • In 2014, the Supreme Court dismissed corruption charges against two liberal politicians by invoking the “fruit of a poisonous tree” legal doctrine – which Poland does not recognize – because the evidence was allegedly gathered illegally the Central Anti-Corruption Bureau.
     

    • However, in 2016, when two ordinary policemen were accused of accepting bribes, the Supreme Court ruled that the “fruit of a poisonous tree” doctrine does not apply in the country (Marosz, p. 168).


KEY POINTS

  • The post-1990 Polish judicial system underwent no significant and meaningful decommunization. In fact, many top judges have worked hard to rein in and blunt decommunization and vetting.
     

  • Rather than retiring, many communist-era judges, or judges with communist-era affiliations, have continued to cling to their posts.
     

  • Many key judges in post-communist Poland have been circulating and shuffling between the country’s judicial bodies for years. Some, like Małgorzata Gersdorf, have amassed and concentrated tremendous power in their hands (she currently heads the Supreme Court, the Tribunal of State, and the National Judiciary Council).
     

  • There are numerous examples of judges behaving in a corrupt and/or unaccountable manner while demonstrating contempt for the law and the ordinary citizen.