Position of the Board of the “Themis” Judges’ Association

of 28 May 2020 regarding the appointment of the First President of the Supreme Court

On behalf of the “Themis” Judges’ Association, we are absolutely convinced that, on 25 May 2020, the Polish President, Andrzej Duda, appointed a person, who should be considered invalidly elected, to serve as the First President of the Supreme Court.

Professor Małgorzata Manowska was appointed judge of the Supreme Court in a procedure that was grossly in breach of the Constitution. The involvement in it of an incorrectly appointed National Council of the Judiciary (a breach of Article 179 in connection with Article 187, item 1 of the Constitution) and the absence of a countersignature of the Prime Minister on the announcement of the recruitment (a breach of Article 144, items 2 and 3 of the Constitution) results in the ineffectiveness of the election and nomination application submitted to the President of the Republic of Poland.  She was then appointed First President of the Supreme Court with the votes of people who were also incorrectly appointed as judges of the Supreme Court, despite the lack of support from the majority of the members of the Supreme Court Assembly and the lack of resolution of the Assembly required by the Constitution (breach of Article 183, item 3 of the Constitution), with the Assembly being chaired incorrectly and by unauthorized people. As a result, this position was assumed by a person who could only be elected as a result of repeated breaches of the Constitution and the support of the politicians of the current ruling camp, which does not guarantee that the function of the First President of the Supreme Court will be performed independently and impartially (breach of Article 7, Article 10, Article 45 item 1, Article 173 and Article 178 item 1 of the Constitution).

Furthermore, we consider Prof. Małgorzata Manowska’s view expressed in her statement of 27 May 2020 about the need to revise the resolution of the joint chambers of the Supreme Court of 23 January 2020 as extremely harmful. This resolution, stating the lack of independence of the National Council of the Judiciary in its present form and questioning the status of the Disciplinary Chamber of the Supreme Court, did not automatically undermine legal status of judges appointed with the participation of the neo-NCJ and the validity of their judgments, which was an expression of a far-reaching compromise between maintaining the standard of the rule of law and ensuring stability of legal transactions. Equally importantly, the resolution was issued on the basis of the guidelines contained in the CJEU ruling of 19 November 2019. The possible future repeal of this resolution at a time when incorrectly appointed judges fill most of the positions in the Supreme Court will lead to the preservation of a politically corrupt judicial evaluation system with the participation of the neo-NCJ, which was elected in conflict with the Constitution. This system does not meet the standards of independence of the judiciary from political authority arising from both the Polish Constitution and the principles of European law, which leads to a drastic reduction in the level of protection of civil rights and freedoms and threatens Polish membership of the European Union.

Given the above, inspired by the concern for preserving the independence of the Polish judiciary, we appeal to Professor Małgorzata Manowska to stop performing the duties of the First President of the Supreme Court. This is the only way for her to keep her reputation and simultaneously not assume responsibility for the deliberate and unjustifiable participation in the devastation of the Polish justice system.