The situation in the Supreme Court after the coming into force of the provisions on retirement

Małgorzata Gersdorf has not received a decision from the President on his retirement. The minister of the president claims that it works automatically. However, the law provides otherwise. Gersdorf thus appeared Wednesday in her cabinet, she spoke publicly as the first president of the Supreme Court, and the Speaker of the House, which she appointed to replace in the absence, said that she was neither the deputy nor the successor of the first president.

"The President is lost", "everyone has taken cover", "the president has returned to action" – that is the situation around the Supreme Court commented by experts in law

The first whistle that led to this "zakopania" resulting from the new law on the Supreme Court. Written according to the proposal of the President, amended in Parliament and amended several times after the entry into force

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After July 3 Supreme Court Judges The Supreme, who turned 65, was to retire, unless he asked the President for permission to continue. 39; arbitration. The first president of SN Małgorzata Gersdorf turned 65, but she did not ask permission to continue her work. Therefore, according to President Andrzej Duda, she should retire. She and the General Assembly of Supreme Court justices, however, emphasize the provision of the Constitution. She says the first president of the Supreme Court is appointed for a six-year term. This Gersdorf lasts until 2020.

The President has not yet exercised his rights

On Tuesday, July 3, however, it has become a surprising thing. The Chancellery of the President announced that "The first President of the SN Małgorzata Gersdorf, (…) by the law in retirement", but the announcement posted on the official website of the President, Andrzej Duda n 39 entrusted to nobody the Supreme Court.

In the absence of the first President of the Supreme Court, he is replaced by the President of the Supreme Court appointed by him and, in the event of Prevention, by the President of the Supreme Court

Article 14, paragraph 2, of the Najszą Act

Well, the official communication on the website of the President contains information about the will of the President and information on the regulations in force.

President-in-Office Paweł Mucha said that 14 par.22 of the law on SN & # 39; in the absence of the first president of the Supreme Court, he is replaced by the president of the Supreme Court appointed by him, and in case of impossibility of appointing – the president of the Supreme Court the oldest judge "

Andrzej Duda is a doctor of legal sciences. Paweł Mucha is a lawyer by profession. Therefore, it is unlikely that they refer to this provision (and specifically cite the fragment) by accident or negligence. And the provision to which they refer does not apply to the competence of the president. This provision defines who is on duty during the absence of the first president of the Supreme Court.

Routine handover of functions before holidays

The first president used this provision. Recall, half an hour before Tuesday's meeting with the President, Małgorzata Gersdorf appointed the President of the Labor Chamber of the Supreme Court, Judge Józef Lwulski, to replace her for the time of her absence. Judge Iwulski acknowledged this – as he claims – as a routine activity related to the summer holidays, not the departure of Judge Gersdorf

– it is a typical ordinance that your first president has already pronounced dozens of times when she was in delegation. that aliens were on leave or not, "said Judge Iwulski on Wednesday

– President joined the usual procedure applied to the Supreme Court – said Professor Marcin Matczak, an expert in legal theory on TVN24

Gersdorf and Iwulski said that the first president of the Supreme Court is Małgorzata Gersdorf, who recalled that the other judges of the Supreme Court would recognize her as the first president, because last week they drafted a resolution that Małgorzata Gersdorf would be the first president until the end of the term, until 2020.

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On Wednesday, Gersdorf indicated that his absence, although temporary, could be

– The situation is audacious. be caused not only by leave, "she said.

When she asked him what she meant, she allowed him to "get sick."

For a while it is not known how much Małgorzata Gersdorf can be sick. absent at the Supreme Court. But the judges of the Supreme Court still consider her as its president. They refer to the constitutional guarantee of a six-year term. They recall that this guarantee is more important than the provision of the Act (that is, a deed of lower rank). Judge Iwulski explained on Wednesday that the constitutional norm establishing the six-year term of the first president of the Supreme Court is so clear and clear that it is not necessary for the law to be respected by the rules of the Tribunal.

that the President has not applied

the President of the Republic of Poland entrusts to the Supreme Court or the House the appointment of the First President of the Supreme Court until the appointment of the First President of the Supreme Court.

Article 111, paragraph 4, of the Supreme Court Act

In the comments after what happened Tuesday at the Presidential Palace and Wednesday before the Supreme Court, the question arises as to why the president did not directly and directly exercise his powers and did not assign judge Iwulski the functions of first president. Such a law gives the president another provision of the Supreme Court Act – article 111, paragraph 4. It states:

"If the position of the first President of the Supreme Court (…) is released after the 39, entry into force of this law, the President of the Republic The Supreme Court or the Judge of the Supreme Court appointed until the appointment of the first President of the Supreme Court. "

However, let us repeat, he did not assign Judge Iwulski his duties, which was confirmed by Judge Iwulski himself, confirmed also by Presidential Minister Paweł Mucha on Wednesday,

Minister Mucha asserts, however, that did not have to formally entrust the duties of the first president to Judge Iwulski According to Mucha, "the effect stems directly from the law." 19659053 Opposition politicians claim the president feared violating the guarantee Constitutional Court of the first President of the Supreme Court, and so he did not give Judge Iwulski

– There is no formal decision, because this decision would have no legal basis today – Minister Mucha said Wednesday

Irremovability in the understanding of legal experts

Judges are irremovable

The law sets the age limit, at the moment the arbitrators are withdrawn.

Art. 180, points 1 and 4 of the Constitution of the Republic of Poland

The Constitution, in addition to guaranteeing the term of office of the first President of the Supreme Court, also includes another – the irremovability of judges.

"Judges are irremovable" – Art. 180 point 1 of the Constitution of the Republic of Poland. What does this security of tenure mean?

"This excludes independent executive decisions from decisions on the judge's legal situation," Professor Roman Hauser explains in one of his articles. This way of understanding the role of the judge was confirmed ten years ago by the President of the Republic of Poland, Lech Kaczyński, when he appointed Małgorzata Gersdorf judge to the Supreme Court

"C & # 39; is the authority that is under control.external, "stresses Lech Kaczyński on July 18, 2008.

The principle of the irremovability of judges is not a privilege of the judges themselves.C & rsquo; Is a guarantee for ordinary citizens that judges will govern according to the law and their own conscience, and not please someone, get promoted, or look for another term in a post.

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The Dif Feral about the Supreme Court also raises the issue that the automatic transfer of 65-year-old and retired arbitrators may violate this principle. The constitution provides exceptions to the guarantee of security of tenure. The exception is, among other things, the age of retired judges. This age is determined by law and not by the Constitution. However – as legal experts point out – legislators can not freely decide which judges and when they will retire.

– The new law can not change the assumptions on which judges were elected. According to Dr. Richard Balicki of the University of Wrocław in TVN24

whether the current judges of the Supreme Court were elected at the time their retirement age was 70, the principle of irremovability guarantees them the opportunity to work there. age, even if the regulations would change later. And as you know, they have changed.

Some of the most senior judges of the Supreme Court have expressed in writing their willingness to try until the age of 70 directly on the constitution

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According to the arbitrators, the state of rest did not work

I would prefer that the President of the Supreme Court, the Head of the Chamber of Labor, Józef Iwulski, aged 66, prefers to work in writing. As stated on Wednesday, he did not invoke any provision. He only expressed the will to continue to rule

According to the new regulation of the Supreme Court, the president must consult the National Council of Magistracy before rendering its decision to the judge who made such a declaration. All this procedure can take up to three months. The National Register of Courts has 30 days to take a position, and the President has two months to decide. During this process, judges who are waiting for a decision are still judges.

That's why Józef Iwulski, 66, is an active judge all the time. There is no dispute about it. He does not feel, as he says himself, neither the deputy nor the successor of Małgorzata Gersdorf. He is recognized, like the other judges of the Supreme Court, as the first president

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However, he is not recognized by the president, who was again stressed Wednesday by Minister Paweł Mucha.He said that there is no doubt that Małgorzata Gersdorf has retired, and therefore is not the first president

The date of passage of the judge of the Supreme Court to the state of rest or transfer of the judge of the Supreme Court in the state of rest is indicated by the President of the Republic of Poland

Article 39 of the Supreme Court Act

Interestingly, the environs of Andrzej Duda argue that Małgorzata Gersdorf retired "by law". The President has not given Małgorzata Gersdorf the decision on his retirement.

The Supreme Court Act does not refer to retirement "by law". He says however that "the date of transfer of the judge of the Supreme Court to the state of rest is pronounced by the President of the Republic" (article 39)

Although Paweł Mucha defends the decisions of the president as consistent , consistent and logical, they have a different opinion on the subject with the camp

– the president came back into action for fear of a frontal collision with the constitution. He did not go so far as to violate the constitution. President Gersdorf did not deliver the document that would have interrupted his term. It is clear that the president of the Keys – evaluates the former president of the Constitutional Court Jerzy Stępień

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– The moral of this is that the president is lost. Everyone has already been zakiwali – Piotr Schramm, a lawyer, said on TVN24

– I have the impression that they got a little lost. Contrary to appearances, the situation at the Supreme Court is very clear, simple and transparent. The first president is Professor Małgorzata Gersdorf and, in a sense, the president also confirmed it, as he should have appointed the interim president, and he not only accepted the replacement in the same way. absence of the first president – the lawyer Michał Wawrykiewicz proves the initiative of the free courts [19659053] The presidential minister, Paweł Mucha, assured Wednesday afternoon that "the decision of the president will be taken" about the Appointment of the functions of the first president of the Supreme Court during the interim period