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In a decision issued on April 8, 2020, the Court of Justice of the European Union has ruled that "Poland must immediately suspend the application of the national provisions on the powers of the Disciplinary Chamber of the Supreme Court with regard to disciplinary cases concerning judges".
Despite the order, two judicial disciplinary cases have recently appeared in the Supreme Court’s calendar of proceedings. Both will be decided at hearings scheduled for mid-September.
The risk of irreparable damage
The CJEU issued an interim measure suspending the court’s disciplinary proceedings of judges until the complaint filed against Poland is finally resolved. Brussels challenged some of the legal provisions introducing a new disciplining regime, arguing that they threaten judicial independence and thus violate both EU law and the Polish constitution.
The Disciplinary Chamber itself was accused of failing to guarantee the impartiality and independence in adjudication, as president Andrzej Duda had packed the chamber entirely with candidates appointed by the politicized National Council of the Judiciary. The Supreme Court has ruled several times that the Disciplinary Chamber cannot be considered a real court.
The CJEU agreed with the EU Commission that the chamber's activities could cause "serious and irreparable damage to the EU legal order." "A guarantee as to the independence of the Disciplinary Chamber, as the court competent to rule in disciplinary cases concerning the judges of the Supreme Court and of the ordinary courts, is essential in order to preserve the independence of these courts"- the reasoning goes.
Brussels' complaint has not yet been recognized, but the CJEU's decision is binding on all institutions of the Polish state.
For the past year, the Disciplinary Chamber has respected the interim measure issued by the CJEU, at least in the part concerning judicial disciplinary hearings. The interim measure itself was broader - the CJEU also prohibited the transfer of cases to panels of the Disciplinary Chamber that fail to meet the requirement of independence and impartiality. But the new authorities of the Supreme Court and the Polish government have interpreted the ruling more narrowly. While the Disciplinary Chamber had indeed stopped hearing disciplinary cases of judges, it continued to waive their immunity. Now, the chamber will again be hearing disciplinary cases as well.
The high-profile case of judge Robert W.
The first judicial disciplinary case in over a year is to be decided on September 15. The daily "Rzeczpospolita" was the first to break the news.
It concerns the famous case of judge Robert W. from the Appeals Court in Wrocław. In January, the court legally sentenced him for stealing, among other things, sound speakers and flash drives from an electronics store, imposing a suspended sentence of one year in prison and a PLN 10.000 fine. In a parallel disciplinary proceeding, the Disciplinary Chamber ruled to remove the judge, but he appealed it. One hearing was held before the CJEU interim measure stepped into force. The case will now be continued.
Among others, the case of judge Robert W. was used by the ruling camp in 2017 to justify its "reforms" of the judiciary system. "The times when those wearing a judge’s toga and chain can feel immune to the rule of law is definitely coming to an end" –the Minister of Justice, Zbigniew Ziobro, said back in 2017. "The Supreme Court's Disciplinary Chamber is there to fight such pathologies as judge-thieves"- he added two years later when the European Commission initiated proceedings against Poland over its judicial disciplinary regime. Now the high-profile case of judge Robert W. may be used to justify the need to override the CJEU ruling.
On September 16, the Disciplinary Chamber will hear an appeal against a verdict of the Court of Appeals in Warsaw. According to available information, the case concerns a judge who was reprimanded.
Disciplinary Chamber’s spokesperson: the decision belongs to the adjudicating panels
"It was the chairman of the adjudicating panel who’d set the date of the hearings" - the chamber’s spokesman, Piotr Falkowski, has told us.
In both cases, the adjudicating panels will be chaired by Prof. Jan Majchrowski- a lawyer associated with the University of Warsaw and a former advisor to former Speaker of the Parliament Marek Kuchciński (PiS). He was appointed to the Disciplinary Chamber at the request of the politicized National Council of the Judiciary. Mr Majchrowski was one of the judges who recently claimed that the CJEU rulings have "drastically limited the sovereignty of the Polish State". Mr Majchrowski will be joined by the former prosecutor Paweł Zubert. Other members of the adjudicating panels include Supreme Court jurors.
We’ve asked Mr Falkowski whether the Disciplinary Chamber plans on hearing the disciplinary cases despite the interim measure. In his answer, the spokesman cited the order of the president of the Disciplinary Chamber issued after the CJEU decision.
"It is recommended to suspend, postpone, or use any other form of suspending the proceedings"- Tomasz Przesławski wrote in May of last year. The recommendation concerned cases in which the panels had already been appointed. The files of new cases were to be kept in the president's secretary's office and not handed to the judges.
"The president of the Disciplinary Chamber recommended that the proceedings be suspended. However, the final decision in this regard belongs to the adjudicating panel" – Mr Falkowski replied. "The obligation to comply with the order of the CJEU is addressed to the panel, which has full autonomy in deciding the course of the proceedings within the limits of the law"- he added.
One step closer to a de-jure Polexit
The appearance of disciplinary cases on the Supreme Court's agenda coincides with a hearing scheduled for next week in the Constitutional Tribunal (controlled by the ruling Law and Justice party).
The Constitutional Tribunal’s adjudicating panel, chaired by the former PiS MP Krystyna Pawłowicz, will answer whether Poland has to comply with the interim measures issued by the CJEU in matters concerning the judiciary.
This question was issued by the Disciplinary Chamber.
The ruling may provide the Disciplinary Chamber and the ruling camp with a pretext to ignore the CJEU's decision. By returning to hearing judicial disciplinary cases, adjudicating panels of the Disciplinary Chamber suggest that they are prepared to override the interim measures.
- The Disciplinary Chamber, which is not a court, is blatantly disregarding the CJEU order. The legal order of the EU is being challenged- says Michał Wawrykiewicz, a lawyer from the Free Courts initiative.
Law professor Wojciech Sadurski has called the chamber’s decision to ignore the CJEU’s interim measure a "test for the EU". "Legal Polexit is getting closer and closer"- he claims. On Twitter, he turned to the Vice President of the European Commission Vera Jourova: "They are testing you"- he Tweeted.
In the case of non-compliance, the Commission can ask the CJEU to impose severe financial penalties on Poland. Referring to Commissioner Jourová as well, the professor of European law at Middlesex University in London Laurent Pech Tweeted: "What will it take for the EU Commission to do its job in the face of sustained & open violations of CJEU orders and judgments?".
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