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The first order concerns judicial disciplinary cases. The second one relates to all the other judicial matters the Disciplinary Chamber of the Supreme Court usually decides on. Both orders are a direct response to recent rulings by the Court of Justice of the EU limiting the activities of the disputed Chamber.

In July, the CJEU ruled that the Disciplinary Chamber (which was staffed with the help of the politicized National Council of the Judiciary) is not sufficiently independent, and thus acts in violation of EU law.

However, shortly after the EU Court order was announced, the head of Poland’s Supreme Court, Małgorzata Manowska, had lifted the partial suspension of the Chamber, claiming it was independent. Brussels then gave Poland an ultimatum: either it implements the interim measures issued by the CJEU by August 16, or the European Commission will seek to impose financial penalties on Poland.

The Commission expects the Polish government to start working on amending regulations deemed by the CJEU as incompatible with EU law and suspend the Disciplinary Chamber.

Supreme Court President Manowska: I’m taking over the case files

And indeed, in two orders announced on Thursday, August 5, Ms Manowska decided to partially freeze the disputed Chamber.

The case files of new judicial disciplinary proceedings that come to the Supreme Court are now to be sent directly to the office of the Court’s First President, where they will also be kept.

Cases that have already been filed are to be decided by the head of the Disciplinary Chamber. "He will consider keeping them in the Chamber’s office without assigning them to particular judges" – Justice Manowska wrote.

What about the cases where the judges have already been assigned? "The Chamber’s President will consider asking the judges to decide, within the boundaries of their power, whether or not to hear the cases" - Manowska explained.

She thus left the final decision to the judges themselves. It is no secret that several of them are ready to adjudicate despite the CJEU ruling. On Tuesday, the Chamber already suspended a judge from Wrocław.

Manowska recently asked government authorities, including President Andrzej Duda and Prime Minister Mateusz Morawiecki, to revise the disciplinary regime for judges.

"The order shall remain in force until legislative solutions enabling effective functioning of the system for disciplining judges are introduced into the Polish legal system" - She wrote, emphasizing that the orders should remain in place "no longer than until November 15, 2021".

The orders have an expiration date  

The second order refers to a mid-July ruling by the CJEU’s Vice President. At the request of the European Commission, CJEU ordered the Disciplinary Chamber to stop hearing other judicial cases, including those regarding the removal of judicial immunity. Judgments that have already been passed should not go into effect.

Manowska decided that new case files regarding this sort of proceedings will also be kept in her office. The head of the Disciplinary Chamber is again to decide on the cases that have already been filed. As with the disciplinary proceedings, the Chamber’s President will also consider asking the judges to decide whether or not to hear the cases that have already been assigned to them.

At the same time, Manowska points out that the cases in question include inquiries to prosecute or temporarily arrest not only judges, but also prosecutors. The interim measures issued by the CJEU mentioned only the former.

The order is theoretically supposed to remain in force until the CJEU resolves the European Commission's complaint against Poland which led to imposing the interim measure. Yet, here too, Manowska indicated the same deadline: November 15. It is unrealistic to expect the CJEU to resolve the case by then.

Is this enough for Poland to avoid financial penalties?  

In July, when the head of the Supreme Court decided to lift the suspension of the Disciplinary Chamber, she invoked the ruling of Poland’s unlawfully composed Constitutional Tribunal. The Tribunal decided that interim measures imposed by the CJEU that concern the judiciary are incompatible with the Polish constitution. Now, Ms Manowska mentions the "universally binding character of the Constitutional Tribunal’s judgments" but also the "need to respect international law binding upon Poland".

She cites "the good of the Republic of Poland, its sovereignty and constitutional identity guaranteeing the protection of human rights to an extent no less than that resulting from Poland's membership in the EU and the Council of Europe".

Her orders are intended to provide government authorities with the necessary "conditions" to introduce new rules on the disciplinary regime for judges.

"The Supreme Court’s First President does not exercise legislative authority and has no power to suspend legal validity" - she wrote. "Neither can she/he order judicial panels or the presidents of the Supreme Court to take actions other than those explicitly required by the current legislation" - she added.

Will the measures taken by the head of the Supreme Court be enough for Poland to avoid financial penalties? - Everything depends on the reaction of the judges of the Disciplinary Chamber. If they continue to adjudicate, Poland will indeed have to face penalties- says a lawyer following Poland's dispute with the European Commission.

- The effectiveness of the interim measures is also severely undermined by the limited duration of the order. The measures are all about protecting judges. What certainty do they have that they won't soon be brought before the Disciplinary Chamber? None, because the order may not be renewed. So, uncertainty remains. This may be speaking in favor of the argument that such a measure is insufficient.

Half measures at best

- Ms Manowska's orders are an attempt to avoid her future liability for failing to comply with CJEU rulings. They are rather mild: even though they are intended to freeze new disciplinary cases, in pending cases they politely ask the Disciplinary Chamber to consider suspending its activities. This is by no means an implementation of the CJEU rulings- believes Prof. Marcin Matczak, a constitutional law expert.

- In her orders, Ms Manowska falsely emphasizes that she can't do much, and again attempts to shift the responsibility onto politicians, so she abdicates. These orders show that the head of the Supreme Court is trying to avoid her responsibilities. One day, Ms Manowska will probably ask - "what do you mean I didn't do anything?"- he adds.

- Instead of these orders, we need full implementation of the CJEU rulings by disbanding the Disciplinary Chamber. The Polish raison d'etat is not about letting a dozen or so people keep their job, but about Poland’s fully-fledged membership in the EU and a green light for the Recover Fund - says Prof. Matczak.

Minister of Justice and his acolytes are not happy with the decision

Sebastian Kaleta, Deputy Minister of Justice and a member of Zbigniew Ziobro’s far-right faction United Poland (Solidarna Polska), is not happy with Ms Manowska's decision. "Unfortunately, the consequences of Małgorzata Manowska's inconsistency will form the basis for further illegal interference in the affairs of the Polish judiciary by the EU. Freezing the Disciplinary Chamber of the Supreme Court (in defiance of the Polish Constitution and the Constitutional Tribunal) will not help, the next step will be to undermine her status as a Supreme Court judge" - he wrote on Twitter.

Prosecutor Ewa Wrzosek, a member of the Lex Super Omnia association of prosecutors that opposes the politicization of the National Prosecutor's Office, answered him by quoting provisions of the Criminal Code:

"Art.15§1 of the Criminal Code. Whoever has voluntarily abandoned the prohibited act or prevented the consequence shall not be subject to penalty for the attempt.

§2. The court may apply an extraordinary mitigation of punishment to a perpetrator who has voluntarily attempted to prevent the consequence which constituted a feature of the prohibited act- you can still make it!"


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