History of the Supreme Court of the Republic of Poland
The Feudal Times and the Nineteenth Centuary
In the feudal system it is difficult to clearly indicate a court of justice which would resemble a supreme court. The division of society into classes, being the principle of feudalism, resulted in the appearance of a legal structure in which each class was governed by its own law and, as a matter of fact, the jurisdiction of its own courts of justice. Besides, to be able to speak of the supremecourt, one would need to distinguish a hierarchy of the courts of appeal, which, however, did not exist in medieval times. The then principal legal system in Poland, that is the one of the gentry, had a relatively modern system of court appeals introduced in 1523 by the code of procedure (both civil and criminal) known as Formula Processus. The next step was the establishment of the Crown Tribunal in 1578 (and the Lithuanian Tribunal in 1581) which was a court of justice of the highest instance. It was characteristic that the Tribunal was separated from the legislative and the executive powers and that its judges were elected at annual Sejmiki (local parliaments) by the gentry. The Tribunal was not the king’s court of justice but the one of the gentry which was a political sovereign in its democratic Republic.
In the 19th century, after Poland lost its independence, autonomous institutions functioned in its territory only temporarily. In the Duchy of Warsaw (1807–1815), a modern institution of cassation was introduced, following the French model. The function of the court of cassation was performed by the Council of the State. After 1815, in the Kingdom of Poland, the Court of the Supreme Instance was established to recognise cassation complaints in civil matters. The then cassation, however, began to bemore revision-like. After the failure of the anti-Russian uprisings, the Russian invader gradually liquidated the Polish court system and replaced it with the Russian one which did not know the concept of cassation.
The Second Republic
The Beginnings
After a long period of national bondage and the partitioning of Poland’s territory by the three neighbouring powers (Russia, Germany and Austria), at the end of the First World War the Polish people began to rebuild their independent state. The formation of the Polish judicial system in 1917, with the Supreme Court at its top, took place even before the official formation of the independent Polish state and before the reconstruction of the other state institutions. The law of 1917 on the temporary organisation of the Polish courts of justice placed the Supreme Court at the top of the then formed structure of the judiciary. The Supreme Court was composed of two chambers, civil and criminal. The head of each chamber was a president of the Supreme Court whereas the head of the whole Supreme Court was its first president. At that time, this function was performed by Stanisław Pomian-Srzednicki, the only Polish judge in the part of the country formerly functioning under Russian rule who performed the duty of vice president of the court. The justices and the presidents of the Supreme Court were appointed by the then Polish temporary authorities from among the candidates elected before by lawyers’assemblies. At that time the Supreme Court was a cassationcourt. Its task was also to explain the existing law. It served also as a disciplinary court for justices or public prosecutors. The idea to form the third, administrative, chamber playing the role of an administrative court of justice was not implemented at that time. Later on (in 1922) a separate administrative court system was established in Poland.
During the first weeks of regained independence and struggle for its maintenance, the Temporary Commander-in-Chief of Poland, Józef Piłsudski, issued his decree of 8th February 1919 by which he regulated the organisation and jurisdiction of the Supreme Court. The Supreme Court gradually took over the duties of the German and Austrian supreme courts as well as the Austrian Supreme Administrative Court and exercised them until the establishment of the Polish Supreme Administrative Court in 1922. After taking over the duties of the German and Austrian supreme courts, the reorganisation of the internal structure of the Supreme Court took place, that is, the temporary establishment of another three chambers (which made five of them altogether) including the chamber of administrative matters (which functioned until 1922). The Supreme Court’s decisions were made by a bench of three justices, but they could also be adopted by the entire bench or even by the general assembly of the Supreme Court justices. Public prosecutors of the Supreme Court were appointed at the Supreme Court with the first public prosecutor of the Supreme Court as their head.
At the end of 1918 and the beginning of 1919, a separate military judiciary was established. A separate Supreme Military Court was within its structure. Such state of the matters was confirmed by the constitution. It lasted until the end of the Second Republic.
Period until the Unification of the System of Common Courts (1921–1928/29)
In 1921, a democratic and liberal constitution was proclaimed. It adopted the Montesquieu principle of three separate powers. An independent judiciary functioning within this system was supposed to guarantee the rights of a person as a subject. Apart from the safeguarding of other principles, the constitution guaranteed that no person could be deprived of a court judgement as provided for by the law, nor that any legislative act could deprive a citizen of his or her right to court proceedings. The constitution made justices independent and subject only to legislative acts. Justices were appointed by the president of the Republic and could not be dismissed. The constitution guaranteed the justices’ immunity. It stated only generally that the system of all the courts of justice would be regulated by legislative acts. It made, however, an exception: the Supreme Court resolutions constituted a norm for civil and criminal matters, which at the same time determined the Supreme Court’s competence. Apart from that, the constitution made the Supreme Court competent to determine the validity of contested parliamentary (Sejm and Senate) elections.
The legal principles of the functioning and structure of the Supreme Court did not undergo major changes in the years to come.
After the Unification of the Judicial System (1929–1939)
In 1919 the Codification Committee was appointed by virtue of an act of law. Its task was to draft civil and criminal law codes and, besides, to work out the law on the system of common courts which was published in 1928 and entered into force on 1 January 1929 (Dz. U. 1928, No. 12, item 93).The structure of common courts was a follows:
The Supreme Court was divided into two chambers, the Civil Law Chamber and the Criminal Law Chamber. Initially, there were two civil law chambers which later (1933) were combined into one. In 1938, still another chamber, i.e. the Bar Chamber, was formed. The first president was still the headof the Supreme Court and the presidents were the heads of its chambers. There was the Supreme Court Office for Judicial Decisions whose main task was to compile collections of the Supreme Court’s judicial decisions, which were important for the judicial practice. The General Assembly of Justices of the Supreme Court played an important role. Among others, for some time, it was entitled to propose candidates for justices of the Supreme Court, to adopt the Supreme Court’s rules of internal procedure, to elect members of disciplinary courts and some of the members of the Supreme Court’s Administrative Board. As the time went on (in 1932), the General Assembly began to gradually lose its power in favour of the smaller and more efficient Administrative Board managed by the first president of the Supreme Court. The Supreme Court justices were, as before, appointed by the president of the Republic, upon the motion of the Minister of Justice. They still enjoyed all the rights and privileges they used to enjoy in the past. In order to enable the justices to make unbiased, independent decisions, the law of 1928 prohibited the justices’ membership in political parties. In principle, the Supreme Court’s decisions were taken by a bench of three justices, they could, however, also be taken by a bench of seven justices, by an entire chamber or by the General Assembly.
The Supreme Court Public Prosecutor’s Office still (i.e. from 1917) operated at the Supreme Court with the first public prosecutor as its head. It was supervised by the Minister of Justice.
The Supreme Court was first of all a cassation court. Apart from that, it still verified the validity of contested parliamentary elections. It also played the role of a disciplinary court. The principal function of the Supreme Court was that of the supervisor of court decisions. This was supposed to ensure the uniform application of law. The Supreme Court’s detailed supervision of judicial decisions concerned specific civil and criminal matters tried within the course of cassation proceedings, whereas its general supervision took the form of interpretation of the applicable regulations which gave rise to doubts or the application of which differed considerably.The Supreme Court, thus, formulated legal principles, collected in the register of legal principles. The legal principles established by the Supreme Court played a very important and positive role in the judicial decision making in the Second Republic.
The process of unifying the court law (especially civil law) was very slow in the Second Republic and until 1939, in the territory of Poland there still existed various sources of law originating from the period following the Partitions of Poland: in various regions of Poland to a significant extent there functioned the remains of the Russian, German or Austrian sometimes pre-First World War legislation. That is why the legal principles formulated by the Supreme Court which enabled making judicial decisions uniform were of special importance. The problem was not only of legal or judicial significance. Its was also of political nature, since some of still binding 19th century post-partitioning legal acts were anti-democratic and anti-liberal as regards their contents and spirit. This in turn was contrary to the contents and spirit of the democratic and liberal constitution of 1921. The Supreme Court resolved numerous problems and doubts resulting from this situation. Its decisions were made in the spirit of the constitution.
The standard of the Supreme Court’s judicial decisions was very high in terms of their merits. Throughout the twenty years’ period the majority of the Supreme Court justices were distinguished lawyers.
In 1935 a new constitution reflecting authoritarian trends in the political system of the state entered into force. It rejected the Montesquieu principle of the division of powers, and formally subordinated all the state bodies to the president of the Republic. This, in practice, did not affect the situation or the functioning of the Supreme Court. The courts of justice, including the Supreme Court, were still independent and so were the judges and the justices. The law on the structure of common courts of 1928 was still in force. In 1939 the invaders – the Nazis and the Soviet Union – did not let the Supreme Court continue its work, despite the fact that in some regionsof Poland (the so-called General Government) the Nazis allowed the functioning of the Polish courts of justice toa certain extent, but without the Supreme Court.
IN THE POLISH PEOPLE’S REPUBLIC
The Beginnings of the Communist Regime: until 1949/50
In 1944, when taking over the rule of Poland, the communists maintained the pre-war legal state to a certain extent. Such policy served to maintain an impression of the legality of their administration. Among others, they maintained the pre-war institutions of justice administration, including the Supreme Court, and most of the former justices and public prosecutors. The pre-war law on the judiciary was kept in force. The former law and lawyers were not able, however, to satisfy the expectations of the new authorities. The communists aimed at making the bodies of justice administration a tool of their power. They changed their staff and adopted many detailed legal acts enabling a slow process of introducing changes into the court procedure and the substantive law. The process ended with the introduction of the final, principal changes leading to the establishment of the Stalinist legislation and actual relations in the years 1949–1950.
Beginning from the end of July 1944, the communists established their rule in the part of the Polish territory occupied by the Red Army, to the East of the Vistula River. Among others, they organised the judiciary, however without the Supreme Court. Warsaw, after the tragic sixty three days long uprising (approx. 195,000 people killed), and the Polish territory to the West of the Vistula River were occupied by the Red Army only starting from January 1945. At that time (February 1945) the work on reactivating the Supreme Court began. Warsaw had been the seat of the Supreme Court ever before. At that time, however, in view of the complete destruction of the Polish capital city, the Supreme Court was temporarily moved to Łódź (a big town in the central point within the new Polish boundaries, 90 kilometres from Warsaw) and remained there until May 1950. At that time, the Supreme Court performed its functions through two chambers: the Civil Law Chamber and the Criminal Law Chamber. The communist authorities (Bolesław Bierut) appointed Wacław Barcikowski as the first president of the Supreme Court. He held this office throughout the whole Stalinist era, until the political crisis in the autumn of 1956. Already in 1944, a separate Supreme Military Court was established as the top court of a separate military judiciary. The Supreme Military Court was liquidated in 1962. Its jurisdiction was taken over by the Military Chamber of the Supreme Court.
At first, the Supreme Court acted pursuant to the still binding pre-war legislation, which was undergoing slow and only fragmentary changes. It was, then, still a cassation court. In the second half of 1948, in Poland, similarly to all the other countries being under the communist or the Soviet rule, upon a signal from Moscow, the communist party faceda turning point within its structures. The worst Stalinist period began with the restructuring of all the institutions and structures as well as the contents of the law, to follow the Soviet pattern. It was at that time (27 November 1948) that the General Assembly of the Supreme Court decided that the pre-war decisions and legal principles not being in agreement with the existing regime, were of only historical value. Later on (12 February 1955), an ambiguous Supreme Court formula extended this idea onto the pre-war legislation. The main changes in the organisation of the administration of justice and the court procedures (both criminal and civil) took place in the years 1949 to 1950. Many of them survived, in whole or in part, until the end of the communist regime in Poland, that is until 1989 or even a bit longer.
From 1950 until the “Solidarity” Movement
In the years 1949–1950 substantial changes were introduced in both of the court procedures (civil and criminal). The pre-war system of three instance proceedings was cancelled (appeal and cassation) and a two instance revision system was introduced, following the Soviet pattern. The common courts of lower instance were reorganised accordingly.Their structure was now as follows:
THE SUPREME COURT
voivodship courts
poviat courts
The reorganisation of the courts did not, as a matter of fact, apply to the Supreme Court. The procedural changes, however, affected its functions. Thus, the Supreme Court ceased to be a cassation court and became, among others, an ordinary second instance court of appeal against the judgements pronounced by voivodship courts dealing with major cases as first instance courts.
In 1952, a new constitution entered into force. It stated that the Supreme Court “is the main judicial authority and exercises supervision over all the other courts of justice as far as the judicial decisions are concerned”. This constitutional principle used to be violated for another ten years’ period to come, for the Supreme Court was the top common court of justice, whereas the military judiciary had its own Supreme Military Court at its top. Besides, the main social security judiciary institution was to be the Social Security Tribunal. Such situation existed until 1962. The constitutional principle was satisfied by the Act on the Supreme Court as late as 1962 (Dz. U. No. 11, item 54). Thus, the Supreme Court ceased to be a common court.
The Supreme Court was still composed of the first president, presidents who were heads of chambers and the justices. An important novelty provided for by the constitution was the “election” of the Supreme Court by the Council of the State for five years, which in practice meant the appointment of the Supreme Court justices rather than their “election” for a five year term. The introduction of the system of terms of office violated the principle of the independence of justices. Its aim was to ensure that the justices were at the disposal of the political authority. In 1962, the Supreme Court was divided into four chambers: 1. the Civil Law Chamber, 2. the Criminal Law Chamber, 3. the Labour Law and Social Security Chamber, and 4. the Military Chamber. Besides, there was the Supreme Court Office for Judicial Decisions at the first president of the Supreme Court. Among its other tasks, it kept a register of legal principles and edited judicial decisions for their later publication.
As it has already been mentioned, the Supreme Court was a second instance court of appeal against the decisions of voivodship courts acting as first instance courts, that is, it exercised a regular higher instance judicial supervision. Apart from that, it was entitled to use special means of judicial supervision, like hearing extraordinary revisions and adopting guidelines for the administration of justice and court practice, answering juridical questions asked by lower second instance courts. Apart from the above mentioned tasks, the legislative acts imposed also other duties on the Supreme Court, like for instance restricted supervision over the Bar. After the introduction of the administrative judicature in 1980, supervision over the judicial decisions of administrative courts was entrusted to the Supreme Court. The Civil Law Chamber was then changed into the Civil and Administrative Law Chamber.
The Supreme Court’s interpretation of law was of great importance. It could be made at the trial of a given matter within the course of instance. It was binding only in that particular matter and bound only the lower instance court to which it was returned for re-trial. The Supreme Court adopted also legal principles, that is, explanations of a general nature. Formally, they were not binding for the courts either (with the exception of the Supreme Court itself), whereas in practice they indeed played such role.
Beginning from 1949, the question of the “guidelines for the administration of justice and court practice” issued by the Supreme Court was particularly controversial. The guidelines were formulated either by the Supreme Court’s General Assembly or by the entire chamber (since 1962 also by two joint benches) upon a motion of the Minister of Justice, general public prosecutor or the first president of the Supreme Court. The guidelines were binding for the courts: at first, only common courts and, starting from 1962, all the courts in general. The guidelines were supposed to guarantee the uniformity of the judicial decisions of all the courts in civil and criminal matters as well as their conformity with the principles of the “people’s rule of law”. The guidelines were different from the judicial decisions of the Supreme Court also in that they dealt not only with the interpretation of law, thatis, not only the determination of the meaning of legal norms,but also with their application, that is, also the way of the execution by the courts of the general instruction of a legislative act in particular cases. Thus, the problem arises whether such guidelines were in compliance with the constitution or not. This problem, however, was not discussed at that time.
In practice, the essence of the guidelines was prepared by political agencies outside the Supreme Court and the Supreme Court’s task was only to write them properly and supplement them with their justification. This does not mean, however, that the initiative to adopt the guidelines was always of a po-litical nature. On the contrary, the guidelines were also often necessary to the courts of justice; they helped judges in their work, cleared doubts or simply corrected poorly drafted law. Within the period of the first twenty years, the Supreme Court adopted 8 guidelines, in the seventies – 17 guidelines and, later on, ceased this practice in criminal cases (to substitute it with very detailed legislation), but continued it – however only exceptionally – in civil cases. In criminal cases, the guidelines often aimed at more severe penal reprisal, imposed the evaluation of the committed act on the judge, which led tothe automatic administration of justice. Most often, judges applied the guidelines very strictly, often opportunistically.So did they with not binding Supreme Court resolutionsrecorded in the register of legal principles and with the Supreme Court’s ordinary judicial decisions. Generally spea-king, however, the Supreme Court’s judicial decisions played a positive role in the development of the court judicature, especially as far as civil matters were concerned.
The Decline of the Communist Regime
In 1981, in the period of the great social movement of “Solidarity”, justices’ “Solidarity” called for the liquidation of the system of holding the justice’s office for a specified term andfor the liquidation of the binding character of the guidelines.
Together with the changes of law initiated by the authorities of the communist party, the Act on the Supreme Court of 1voivodship 984 entered into force (Dz. U. No. 45, item 241). It stipulated that the Supreme Court “protects the political and social system”, the social property and, finally, the citizens’ rights. Thus, the political aspects rather than the rule of law were emphasised in it. It defined the Supreme Court as the main judicial body exercising supervision over the activity of all the other courts of justice from the point of view of their judicial decisions. The Supreme Court’s task was to guarantee the regularity and uniformity of the interpretation of law and the court practice. The Supreme Court heard appeal cases, adopted guidelines concerning the interpretation of law and the court practice (their name was changed), explained the law and resolved the legal issues which gave rise to doubts. Depending on the category of the matter, the resolutions were adopted by a bench of seven justices, by an entire chamber, by joint chambers or by the entire Supreme Court. The guidelines were binding for the courts. Apart from that, the Supreme Court’s bench of three juctices adopted resolutions which were not legal principles and were binding only for the case in which they were adopted. In practice, the weakness of this system was that the Supreme Court was overloaded with second instance decision making, that is the hearing of appeals against judgements pronounced by voivodship courts.
The Supreme Court was divided into four chambers: 1. the Civil and Administrative Law Chamber, 2. the Criminal Law Chamber, 3. the Labour Law and Social Security Chamber, 4. the Military Chamber. The head of the Supreme Court was its first president and its presidents were the heads of chambers. Justices were still appointed by the Council of the State fora five-year term of office. They vowed that they would first of all protect the regime and the social property. They could be dismissed by the Council of the State if, among others, they did not “guarantee” due performance of duties. This phrase was intentionally unclear in order to allow the dismissal of those justices who were politically incorrect. The Office for Judicial Decisions was still functioning. So was the General Assembly of justices, the assembly of the justices of the chambers, the Supreme Court Board, which constituted the bodies with restricted competence, having powers to adopt resolutions. A true justices’ self-government was not established, some of its elements, however, could be enjoyed by collective bodies. The justices maintained their official immunity (from being tried) as far as criminal law was concerned and the financial immunity in the domain of petty offences. Despite the declared independence of justices, in fact it is difficult to speak of it in view of the system of holding the office for a five-year term. How much politically driven the Supreme Court was one can see from the fact that, for instance, in 1982, among 113 appointed Supreme Court justices, 88 were members of the communist party (Polish United Workers’ Party), 11 were members of the United People’s Party (ZSL) or the Democtratic Movement (SD) and 14 did not belong to any political party. It should, however, be realised that in the communist regime which was imposed on the nation, it was not rare that membership of the communist party was, as a matter of fact, forced by the circumstances. It was often ostensible and did not affect peoples’ everyday life. The Supreme Court, as a rule, kept away from politics and concentrated on the administration of justice. The work of the Supreme Court was appraised highly as far as the subject matter of its activity was concerned. This does not apply, however, to the role played by several Supreme Court justices in political trials – particularly during the martial-law period in Poland (1981–1984).
Formally, the Act of 1984 was binding until 31 December 2002, but it was significantly amended. In particular, in 1989, after the adequate amendment of the constitution, the Act of 20 December 1989 (Dz. U. No. 73, item 436) cancelled the justices’ five-year term of office and introduced the irremovability of the Supreme Court justices. The same Act liquidated the institution of the Supreme Court guidelines and soon, by a resolution of its full bench, the Supreme Court decided that all the previous guidelines ceased to be binding.
THE PRESENT TIME
The December 1989 Act shortened the then five-year term of the Supreme Court. The Court was dissolved on 30 June 1990 (art. 9 of the Act). The new Supreme Court bench was appointed by the President of the Republic of Poland on 4 June 1990. In total, 57 justices were appointed to the four chambers of the Supreme Court, of which there were 22 justices from the previous bench appointed for a specific term (5 justices from the Administrative, Labour Law and Social Security Chamber, 11 justices from the Civil Law Chamber, 3 justices from the Criminal Law Chamber, and 5 from the Military Chamber; justices from the former bench represented 38.6 per cent of all the members of the new bench). In 1990 the post of the First President of the Supreme Court was assumed by Professor Adam Strzembosz who was appointed by the Sejm of the Republic of Poland on 1 July 1990.
Major changes in the Supreme Court’s powers were made by the Act on the Establishment of the Courts of Appeal and other laws, dated 13 July 1990, by virtue of which on 1 October 1990 the established courts of appeal assumed the trial of appeals against the decisions of voivodship courts issued in the first instance. As a result of this, the Supreme Court ceased to be a secondinstance court (except matters adjudicated by military courts).
On 25 May 1997 the national referendum resulted in the approval of the new Constitution of the Republic of Poland adopted by the Parliament on 2 April 1997. Work on that Constitution started in the early 1990s. The new Constitution did not introduce any major changes as regards the organisational position of the Supreme Court and maintained the principle according to which the Supreme Court is the supreme judicial authority which exercises judicial supervision over the operations of common and military courts. The Constitution changed the procedure of appointing the First President of the Supreme Court (by introducing the system of the terms of office; the right to appoint the First President was vested in the President of the Republic of Poland).
The Constitution of the Republic of Poland of 1997 introduced separate two-instance administrative courts which were no longer subject to judicial supervision by the Supreme Court. The Supreme Court’s competence in administrative matters was assumed by the Supreme Administrative Court. This made it necessary to redefine the position of the Supreme Court by means of a new act of law and divide it anew into chambers. The drafting of such law started in 1998.
In October 1998 the term of office of the First President of the Supreme Court, Professor Adam Strzembosz, expired. He was replaced by Professor Lech Gardocki, a justice from the Criminal Law Chamber of the Supreme Court who was appointed to this post by the President of the Republic of Poland on 17 October 1998 and held it for two terms.
1 January 2003 was the effective date of the new Act on the Supreme Court of 23 November 2002 (consolidated text Dz. U. of 24 April 2013, item 499) which provided for a new division of the Supreme Court into four chambers:1. the Civil Law Chamber, 2. the Criminal Law Chamber, 3. the Labour Law, Social Security and Public Affairs Chamber, 4. the Military Chamber. Under the new act the General Assembly of Supreme Court Justices became competent to determine the internal organisation of the Supreme Court, the detailed allocation of cases among individual chambers and the rules of internal procedure which until then had been defined by the regulation of the President of the Republic of Poland. On1 December 2003 the General Assembly of the Supreme Court Justices adopted the Supreme Court Bylaws.
On 19 October 2010 the President of the Republic of Poland appointed Stanisław Zbigniew Dąbrowski, a justice of the Civil Law Chamber, as First President of the Supreme Court. President Dąbrowski died on 9 January 2014 followinga serious illness. He carried out his duties until the endof his days. After his death, until the moment of appointing a new President, Professor Lech Paprzycki, President of the Supreme Court in charge of the Criminal Law Chamber, was acting First President of the Supreme Court.
Since 30 April 2014 the office of the First President of the Supreme Court has been held by Professor Małgorzata Gersdorf, a Supreme Court Justice of the Labour Law, Social Security and Public Affairs Chamber, appointed for a six-year term by the President of Poland, Bronisław Komorowski. Professor Małgorzata Gersdorf is the first woman to hold this honourable office in the history of the Supreme Court.
Written by Prof. Adam Lityński, PhD