07 August 2018

Open Letter

We, the undersigned, have learnt that Chief Justice of the Supreme Court of Poland Professor Małgorzata Gersdorf has had her constitutionally guaranteed term of office of six years prematurely terminated by a new statute on the Supreme Court rushed through the Polish Parliament and signed by President Andrzej Duda on 26 July 2018.

We also understand that the Chief Justice vigorously protests this unconstitutional act of forcing her into retirement half-way through her constitutionally defined 6-year term of office.

Such a politically motivated action is not only contrary to an express provision of the Constitution of the Republic of Poland (Article 183 (3)) but also constitutes a blatant violation of European standards on judicial independence which Polish authorities are under an obligation to respect.

We firmly hold the view that Professor Małgorzata Gersdorf is the only lawful and legitimate incumbent of the office of Chief Justice until 30 April 2020, i.e. until the end of her constitutionally designated term of office.

WOJCIECH SADURSKI, Challis Professor of Jurisprudence at the University of Sydney and Professor in the Centre for Europe, University of Warsaw.

LAURENT PECH, Professor of European Law, Jean Monnet Chair of European Public Law (2014-17) and Head of the Law and Politics Department at Middlesex University London

BRUCE ACKERMAN, Sterling Professor of Law and Political Science, Yale University

ALBERTO ALEMANNO, Jean Monnet Professor of EU Law, HEC Paris and Global Professor of Law, NYU School of Law in Paris

PETRA BÁRD, Visiting Professor, Central European University

LASZLO BRUSZT, Professor of Political Sciences, Central European University

TOM GERALD DALY, MLS Fellow, Melbourne Law School and Associate Director, Edinburgh Centre for Constitutional Law

GRÁINNE DE BÚRCA, Florence Ellinwood Allen Professor of Law, NYU Law School

GÁBOR HALMAI, Professor and Chair of Comparative Constitutional Law, European University Institute, Florence

R. DANIEL KELEMEN, Professor of Political Science and Law, Rutgers University

DIMITRY KOCHENOV, Professor of EU Constitutional Law at the Department of European and Economic Law, University of Groningen

TOMASZ TADEUSZ KONCEWICZ, Professor of European and Comparative Law, Director of the Department of European and Comparative Law, University of Gdansk

MARTIN KRYGIER, Gordon Samuels Professor of Law and Social Theory, University of New South Wales; Recurrent visiting Professor, School of Social Sciences, Institute of Philosophy and Sociology, Polish Academy of Science

MARCIN MATCZAK, Professor of theory and philosophy of law at the University of Warsaw, Faculty of Law and Administration

STEVE PEERS, Professor of EU Law & Human Rights Law, University of Essex

VLAD PERJU, Professor of Law, Boston College Law School and Director of the Clough Center for the Study of Constitutional Democracy, Boston College

KIM LANE SCHEPPELE, Laurance S. Rockefeller Professor of Sociology and International Affairs, Princeton University and President, Law and Society Association 2017-2019

JUSTINE N. STEFANELLI, Maurice Wohl Senior Research Fellow in European Law, Bingham Centre for the Rule of Law

MAXIMILIAN STEINBEIS, Founder and Editor of Verfassungsblog

NEIL WALKER, Regius Professor of Public Law and the Law of Nature and Nations, The University of Edinburgh


SUGGESTED CITATION  Sadurski, Wojciech; Pech, Laurent: Open Letter, VerfBlog, 2018/8/07, https://verfassungsblog.de/open-letter/, DOI: 10.17176/20180807-135152-0.

40 Comments

  1. Joseph Savirimuthu Tue 7 Aug 2018 at 19:49 - Reply

    Please include me
    Joseph Savirimuthu
    Senior Lecturer in Law
    University of Liverpool

  2. Bart Tue 7 Aug 2018 at 21:25 - Reply

    Its, sad that those lawyers dont understand polish law. Gersdorf is not anymore judge

    • Martin E.J. Krygier Wed 8 Aug 2018 at 03:22 - Reply

      It’s sad that Bart (and the Persident of Poland) don’t understand European law. Gersdorf is still chief justice of the Polish Supreme Court.

  3. Michał Romanowski Tue 7 Aug 2018 at 22:52 - Reply

    Please include me

    Michał Romanowski, Professor of Civil and Business Law, Faculty of Law and Administration, University of Warsaw

  4. Strach Wed 8 Aug 2018 at 06:18 - Reply

    the average retired age in all polish courts is 62 years, and maybe it’s time for gersdorf to quit and shut off mouth . nobody knows how she had been elected and become chief of supreme court , only narrow group of polish lawyers decided -it was really not like in normal European countries.
    According to new regulations the choise it’s more transparency than was. So state is more democratic, no more judges with communistic past in polish courts.

  5. Dawid Bunikowski Wed 8 Aug 2018 at 08:26 - Reply

    Some commentators are always malicious, using arguments ad personam or just wish to forget rules of legal interpretation in Western legal culture. I skip this issue. Let us focus on a good legal job. Article 183 para. 3 of the Constitution establishes that the First President of the Supreme Court shall be appointed for a 6-year term of office. Let us read it literally. Let us read the Constitution both literally and holistically. Take it seriously. This is about principles, not persons – about being governed by rules, not by arbitrariness of authorities. If we can change this particular term (the Gersdorf case) by an ordinary legal act, we can also change every other term from the Constitution, e.g. the term of office of the President of the Republic. This is ridiculous. This is bad and devastating for legal and political culture. And, this is sad. And, it will give someone food for thought – for more protests – as it is very frustrating for many citizens who disagree to such style of politics.

    • Chris Wed 8 Aug 2018 at 12:55 - Reply

      The retirement age is the same for all judges. Otherwise it would be a violation of the constitutional principle of equality before the law.

  6. Wojciech Sadurski Wed 8 Aug 2018 at 08:34 - Reply

    My big thanks to all those who already have, or who will, join our letter. I will add all these additional names to the final copy of the letter which will be sent to Professor Gersdorf and to Polish authorities.

    • Dr. Marcin Michalski Wed 8 Aug 2018 at 08:50 - Reply

      I guess they will be impressed 🙂

  7. Wojtek K. Wed 8 Aug 2018 at 08:40 - Reply

    To have the whole view of the situation there is also a need to mention article 180 (4) of the Polish Constitution: The act of Parliament establishes the age when the judges become retired.
    Why was it not mentioned in the letter signed by the professors?

    • Pawel S. Wed 8 Aug 2018 at 09:10 - Reply

      The act of Parliament establishes the age of retirement for judges, but that act – as all other legal acts – cannot have backward effect, it may affect only the judges elected after it becomes law, not earlier.
      That is the reason the said article 180.4 is pointless in respect to active judge.

  8. Dr. Marcin Michalski Wed 8 Aug 2018 at 08:46 - Reply

    The only purpose of the ‘Open Letter’ is to generate news in Poland of the kind ‘Law professors from allover the world support Gersdorf’. The fact is that the opposition in Poland cannot offer anything to the voters, and seeks any kind of obstruction, if possible backed by foreign powers. The bad news is, that this kind of ‘Targowica Confederation’ won’t work anymore.

  9. Jurek Jakubowicz Wed 8 Aug 2018 at 08:50 - Reply

    Oczywiste jest to ze kadencja pani Gersdorf jest do 2020 , Polski rzad lamie prawo !!!

  10. Wojciech Sadurski Wed 8 Aug 2018 at 09:03 - Reply

    To Wojtek K.:
    You are wrong. A general norm which establishes the legislature’s competence to set the retirement age (Art. 180.4) cannot prevail over a very specific, express rule which sets the Chief Justice’s term of office as 6 years (Art. 184.3). Otherwise, we would have an absurd situation that any constitutional term of office could be shortened by statutory changes regarding the eligibility for that office. Further, there is a general constitutional rule of irremovability of judges (Art. 180.1) as a result of which the changes in the retirement age for judges under Art. 180.4 which you refer to can apply only to judges appointed AFTER the statutory change, not ex post to judges already serving in their office to whom the old retirement age must apply.

  11. Wojciech Sadurski Wed 8 Aug 2018 at 09:07 - Reply

    To Dr Marcin Michalski
    Thank you very much for your comment. You just gave non-Polish readers of Verfassungsblog a great sample of the quality and depth of arguments used by PiS supporters in public debate in Poland. I could not have done it better. And when I summarize such arguments to my non-Polish friends, they don’t believe me.

    • BRONISŁAW CHLIPAŁA Wed 8 Aug 2018 at 09:22 - Reply

      całkowicie błędne podejście i błędna argumentacja. Proszę odnieść się do Art.91 naszej Konstytucji i wówczas zrozumiesz , że to nasze instytucje a prawo europejskie jest nasze. Znamy prymitywną i z założenia opartą na kłamstwach, lecz ta propaganda nijak się broni jeśli pytany zwolennik PiSokleptokracji czy chce powrotu granic, zakazu pracy, braku ochrony prawnej umów w Europie robi wielkie oczy, że i to jego może dotyczyć

    • Dr. Marcin Michalski Wed 8 Aug 2018 at 09:37 - Reply

      Dear Prof. Sadurski: you are welcome. However, you completely missundersttod my point. My intention was not to participate in any debate about term of office of prof. Gersdorf. Maybe I am not even PiS supporter? My point is, that is lamentable for you and your milieu to conduct polish political debate on .de-site, after foreign goverments denied significant support to overthrow polish goverment.

  12. BRONISŁAW CHLIPAŁA Wed 8 Aug 2018 at 09:12 - Reply

    this appeal is very important for us in the country and it made an impression among many of my friends on FB. Thank you, wise and sensitive people for this appeal. we are all Europeans

  13. Piotr Wed 8 Aug 2018 at 10:00