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On Thursday, the disputed Disciplinary Chamber refused to waive the immunity of Barbara W. and Andrzej B. - two judges from Tarnów. By deciding to hear their cases, the Chamber acted in violation of the July CJEU order.

The case has been initiated by a private citizen who filed a subsidiary indictment for false testimony. It was decided in a closed session by Małgorzata Bednarek, a former prosecutor considered to be one of Zbigniew Ziobro's most loyal acolytes. She made headlines during the first Law and Justice government (2005-07) as the head of the Regional Prosecutor’s Office in Bielsko-Biała who investigated local judges for their alleged involvement in a corruption scheme. The cases ended in acquittals, and some of the falsely accused defendants received compensation and pensions.

When PiS lost its grip on power, Ms Bednarek founded and presided over the Ad Vocem association, which brings together close associates of the Minister of Justice Zbigniew Ziobro (its members currently hold top prosecutorial positions). After the 2015 election, the new Minister of Justice appointed her to head the Silesian division of the National Prosecutor's Office. Then, she was appointed to the Disciplinary Chamber. Ms Bednarek's husband - Paweł - was the Silesian treasurer of the Law and Justice party. 

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 by hearing judicial disciplinary cases acts in violation of EU law. The EU Court had also issued an interim measure freezing the Disciplinary Chamber’s activity in cases regarding judicial immunity. Yet, the unlawfully composed Constitutional Tribunal also decided at that time that the interim measures imposed by the CJEU that concern the judiciary are incompatible with the Polish constitution.

It is of crucial importance that the question about the validity of interim measures issued by the CJEU was raised by Małgorzata Bednarek. It is the decision of the Constitutional Tribunal following directly from her question that the Polish authorities are now relying on when refusing to implement the CJEU's rulings concerning the Disciplinary Chamber.

Judge Bednarek ignores the CJEU order

Ms Bednarek decided to settle the case on Thursday and passed a resolution refusing to allow the two judges to be prosecuted. This means that she openly disregarded the rulings of the EU court, especially the CJEU's order prohibiting the Disciplinary Chamber from hearing cases regarding judicial immunity. Unsurprisingly, Ms Bednarek sided with the members of the Disciplinary Chamber, who, citing the ruling handed down by the unlawfully composed Constitutional Tribunal, announced that they would defend their right to adjudicate like the Polish WWII soldiers who defended Westerplatte.

According to legal experts and independent judges, the Chamber has no right to adjudicate. The Polish government and every state institution are obliged to comply with the decisions of the CJEU.

- The Disciplinary Chamber should not adjudicate on any category of cases, and certainly not after the CJEU and the European Court of Human Rights concluded that it does not meet the requirements of an independent court. Although the rulings concerning the Disciplinary Chamber relate to judicial cases, in view of such fundamental objections as to the validity of the Disciplinary Chamber as a judicial body, it is not permissible for it to function in the rest of its scope as well. For it cannot be said that only judges have the right to an independent court in disciplinary matters, while prosecutors, lawyers, or solicitors do not. Therefore, the activities of this chamber should be completely suspended- says Dr Michał Laskowski, Chairman of the Supreme Court’s Criminal Chamber.

So far, however, the government has failed to implement the CJEU's rulings and initiate appropriate changes in the law. In its response to the European Commission, it claims that it does not have the means to suspend the operation of the Disciplinary Chamber and the effects of its judgments without violating the principle of judicial independence.

Schrödinger’s Disciplinary Chamber

The Disciplinary Chamber has indeed been suspended, but only partially.

The activity of the Chamber has only slowed down. On August 5, the First President of the Supreme Court, Małgorzata Manowska, decided to partially freeze the disputed Chamber, stating the case files of new judicial disciplinary proceedings that come to the Supreme Court are now to be sent directly to her office kept there. The judges themselves were to decide whether to rule on pending cases. One of such cases concerned the immunity of two judges, decided on Thursday by Małgorzata Bednarek. The case came before the Supreme Court on June 21, 2021 (that is, before Ms Manowska's orders partially freezing the chamber's activity). In accordance with the orders of the First President, the decision as to its procedure was left to the adjudicating panel.

Judges from the Supreme Court’s Criminal Chamber were to rule on urgent cases involving the suspension of judicial immunity, such as when a judge had been caught red-handed.

The Court’s First President had the idea of delegating people from the Criminal Chamber to the Disciplinary Chamber, but the head of the Criminal Chamber, judge Michał Laskowski, refused to accept it. The Criminal Chamber has long expressed its willingness to adjudicate on cases falling within the jurisdiction of the Disciplinary Chamber. But new cases submitted to the Supreme Court are kept in "president Manowska's freezer" even when they are addressed to the Criminal Chamber or the president of the Criminal Chamber himself.

Wiesław Kozielewicz was the judge appointed by Ms Manowska to be on duty in urgent cases, but his duty period has already ended. Currently, it is performed by the head of the Criminal Chamber, and afterward, it will be taken over by other judges of the Chamber, according to a fixed schedule. So far, according to our findings, the judges on duty from the Criminal Chamber have not received any urgent cases (under the jurisdiction of the Disciplinary Chamber) to adjudicate on.

How many disciplinary cases are still pending?

According to the Polish Press Agency (PAP), the Disciplinary Chamber has a total of 66 pending cases involving judges. Of those, 19 are disciplinary cases. Since the beginning of the year, however, no cases from this category have been heard. On the other hand, 24 cases concern motions to waive judicial immunity. Three of the registered cases concern the labor law of judges, and four others are cases relate to the suspension of specific judges. There are also 16 other judicial cases waiting to be heard in the Chamber.

How many cases concerning other legal authorities are there? As reported by PAP, there are 52 cases involving prosecutors, 17 involving attorneys, 25 involving legal advisors, and three involving notaries.

The Disciplinary Chamber's calendar of proceedings shows that the hearings concerning judges are scheduled for the next few days of September. Later this month, the Chamber is to deal with cases involving prosecutors and legal advisers.

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