Godło RP

The situation will be like in Martin Niemöller’s poem: Then they came for me — and there was no one left to speak for me - Adam Bodnar's article for Gazeta.pl


The Supreme Court is usually invisible to citizens. On daily basis, an average citizen underestimates the Supreme Court’s important role in the development of the legislative system. Yet, let us look at the Supreme Court’s recent resolution (of 20 June 2018) concerning mortgage loans denominated in Swiss francs.

Firstly, only specialists know what “a resolution of 7 judges” is. Secondly, only specialists understand its legal significance and know how it differs from a court’s ordinary ruling or judgment.

A citizen may, in a month or a year, file a lawsuit with the aim to undermine certain provisions of his agreement with a bank, concerning a loan that is denominated in Swiss francs. And he may not even be aware that this is possible thanks to the resolution taken by seven judges.

Riding a bicycle while drunk, and the Supreme Court

Let us take another example. A citizen rides a bicycle while being drunk. He is stopped by the police. He is afraid that he is going to lose his driving license. However, the policeman fines him but his driving license is not taken away. Why? Because a few months ago the Supreme Court concluded that driving license may not be taken away for riding a bicycle while being drunk.

Again, an average citizen is probably not aware that some time ago, a group of judges analysed the issue and decided that the law had to be amended.

Large numbers of cases considered by the Supreme Court concern the rights of employees, retirement pensions and disability pensions. There are also cases that concern various other issues such as drivers’ night-time breaks, renewal of employment contracts, discrimination, or status and rights of individual professional groups.

Can an average miner, at present a user of the special retirement benefit, remember that it was the Supreme Court that adjudicated that to be eligible for the benefit, one has to have worked underground for only 5 years (instead of 15)? Prior to this, the law was not clear. On daily basis, the Supreme Court fulfils its task of interpreting the law.

The Supreme Court considered the cases of Pilecki and Komenda

The Supreme Court makes the legislation more effective, takes attempts to remove mistakes made by the legislator, and to eliminate gaps or correct interpretation errors made by lower-level courts in their judgments. The Supreme Court is like a brain that is connected, by the nervous system, with the other parts of the body. Without the Supreme Court the other parts would not be able to sense the surrounding environment. They would not know how to operate, how to react to the world around, how to take care for maintaining stability of the system of law and to ensure justice.

The Supreme Court also gives people hope for justice in many individual cases. After all, not every issue is clearly provided for under the law, under some provisions described in law books or specialist magazines. Many people seek the removal of gross errors made by lower-level courts. Based on the CHR’s experience, I find of particular importance the cases in which the Supreme Court assessed the situations of persons kept in psychiatric hospitals for many years.

There are also high-profile cases as that of Tomasz Komenda who was acquitted after 18 years in prison. And there are cases significant from the point of view of the country’s history: the annulment of the communist court’s judgment in the case of colonel Pilecki, or the annulment of judgments issued by Stalinist courts in cases of persons under repressions.

The Supreme Court  seems "distant" to lawyers

The Supreme Court may seem a distant institution for average citizens. Its hearings are not broadcast on TV. The court is located in the centre of Warsaw and its building looks like a palace but it is not visited by school trips. The judges are not celebrities, they do not seek popularity and visibility on the media. The language of the judgments is sometimes full of specialist vocabulary as the difficult matters under consideration cannot be summarized in two or three simple sentences.

The Supreme Court also seems distant to lawyers. Only few of them have an opportunity to file a cassation complaint that brings effect. Most lawyers get frustrated that their another complaint has been dismissed and that their arguments have not convinced the Supreme Court judges. But lawyers understand how the legal system works. They are aware that that the third instance court is special as the Constitution guarantees access only to first-instance and second-instances courts.

The role of the Supreme Court is to adjudicate on matters that are of the greatest importance, and not on those considered every year by Polish courts in hundreds of thousands of cases. This is required for the Supreme Court proceedings to be effective.

The Supreme Court seems distant in terms of its composition, too. Not everyone can become a judge of the Supreme Court. I have once been invited to take part in a conference of judges in one of the regions. There were nearly a hundred experienced judges in the hall, there were lectures of scientists and specialists.

However, everyone waited for the lecture of a Supreme Court judge. He was one of them, but on the other hand his professional achievements were the greatest. He was like a general in an army. As a result of his positive assessment by the whole professional community of judges, he had the honour to be a judge of the highest-level court. Supreme Court judges should be listened to, and their rulings, speeches or scientific papers should be read.

This works in the same way across the whole democratic world. The Supreme Courts everywhere – in the Netherlands, Germany, the United States or Norway – are known for their professionalism, high standards of adjudication work and employment of top-level professionals. Their judges enjoy respect and recognition because of their competences and professional experience.

There exist differences between countries with regard to specific scopes of competences of Supreme Courts. In the US, for example, the Supreme Court combines the functions of our Supreme Court and the Constitutional Tribunal. Yet, in principle, the role of all Supreme Courts is the same: to administer justice, to interpret the law and to ensure that courts of lower instances adjudicate in a uniform way in cases concerning similar matters.

Tripartite division of power and the role of the Supreme Court

The Supreme Court can fulfil its function of ensuring people’s trust in the system of administration of justice thanks to being independent of other authorities. This is the outstanding achievement of Montesquieu and his principle of tripartite division of powers, implemented in accordance with our constitution and constitution of any other democratic state.

The Supreme Court may not substitute the legislator but should interpret acts of the Parliament. It may not substitute the government but should supervise it as part of its judicial activities. It may not influence the composition of the government but in some situations it may assess whether its members have not committed an offence. The administration of justice naturally entails the possibility for the Supreme Court (and other courts) to have to act against the interests of the ruling group.

If the Supreme Court becomes subordinated to political interests, the last bastion of the rule of law will be lost. The next step from there will be the incapacitation of all common courts. We may remain silent, just watching and waiting to see how the situation develops. But each of us is either a consumer, a driver, an owner, a tenant, a member of a co-operative, an employee or a user of retirement pension or disability pension. Each of us can become a suspect, a defendant or a victim. When the state becomes all-powerful, the role of the courts should be to ensure the observance of our rights and to interpret the law in line with the Constitution rather than political interests.

Without independent courts, the situation will be like in Martin Niemöller’s poem: Then they came for me — and there was no one left to speak for me.