The Disciplinary Commissioner will be able to prosecute a judge who adopts a legal interpretation making the Catholic Church liable for sexual abuse of children committed by priests. And this is just one of the possible pitfalls contained in the presidential bill.
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At the beginning of February, President Andrzej Duda submitted a bill seemingly abolishing the judicial Disciplinary Chamber and pretending to implement the judgments of international courts. The neo-judges of the Supreme Court, including Małgorzata Manowska, played a major role in drafting the amendments. The current authorities of the Supreme Court were presumably consulted on the proposed solutions, but it is not known to what extent. The consultations were not transparent, the citizens were unable to find out which proposals were presented, which of them were included in the bill and which ones were not.

Even at first glance, it is clear that the bill is little more than a gimmick. Essentially, the Disciplinary Chamber will not be dissolved in accordance with the requirements of the judgments of the Court of Justice of the EU and the European Court of Human Rights. Its members will be able to continue to adjudicate in other chambers of the Supreme Court or leave to a lucrative judicial retirement. If they move to other chambers of the Supreme Court, the role of the legal judges will be reduced and the number of doubtful judgments which are also issued in the old chambers will increase.

The new Professional Liability Chamber, which is to be established in place of the Disciplinary Chamber, is to consist of 11 people nominated by the President –a politician – from among 33 judges of the Supreme Court previously drawn by lots by the Court’s First President. Joining the Chamber will not only be possible for neo-judges from other chambers of the Supreme Court, but also former members of the Disciplinary Chamber. As a result, it will again be possible for the panels examining judicial disciplinary or immunity cases to include neo-judges of the Supreme Court, who, according to the judgments of international courts, do not guarantee the right to an independent court and whose judgments may be found to be null and void.

Similarly, the bill does not solve the problem with the politicised National Council of the Judiciary, which, according to the international courts, is the root cause of the defective appointments of neo-judges.

"This draft is one major trap. It has been deliberately written in a manner that is in conflict with the rulings of the CJEU and ECtHR. It is not only about Manowska and other neo-judges of the Supreme Court keeping their positions. It is worse. This bill has the objective of preventing judges from implementing the CJEU’s and Strasbourg’s judgments"- assesses one of the judges. In his view, solutions that actually threaten judges are concealed behind the noble slogans.

Unlimited opportunities for disciplinary commissioners

When examining the system of disciplinary liability of Polish judges in July of last year, the CJEU ruled that Poland had breached EU law because Polish judges could be held liable on disciplinary charges for their judgments and for submitting requests to the CJEU for preliminary rulings (namely requests for binding interpretations of EU law).

"A misinterpretation of the law, questions to the CJEU or examining the compliance of courts with EU requirements cannot be disciplinary offences"- Duda promises.

In fact, the bill contains provisions that clearly list which circumstances related to adjudication cannot constitute a disciplinary offence. What can judges not be prosecuted for?

  1. for a mistake in interpreting and applying national or European Union law in establishing the facts or assessing evidence;
  2. for referring a question to the CJEU for a preliminary ruling;
  3. for examining whether the requirements of judicial independence and impartiality are satisfied.

But will this really improve anything?

"Nothing will be better. Please note that the provision only rules out an error in applying the law with regard to the establishment of the facts or the assessment of evidence from the category of disciplinary offences. It does not exclude the application of substantive law. And issues of the rule of law are substantive law"- explains our interviewee.

Disciplinary commissioners will be able to apply a contrario interpretations. They will be able to conclude that a judge may be found guilty of a disciplinary offence to the extent not mentioned in the provision (namely in the interpretation or application of substantive law).

The commissioner will be able, for instance, to prosecute a judge who interprets that the Catholic Church is liable for the crime of paedophilia of its subordinates. This is because such a position does not arise from factual findings. It is the result of an interpretation of the provisions of the Civil Code on organisational liability and on responsibility for a subordinate. -If a judge wrote these provisions, it is a crime against adjudication- comments our interviewee. In his opinion, such a structure of the provision will give unlimited opportunities to the disciplinary commissioners.

Prosecution for the rule of law

As if that were not enough, the bill also introduces a new type of disciplinary offence: the refusal to administer justice.

This provision allows judges who refuse to adjudicate with neo-judges to be prosecuted.

Many are already making such decisions today in order not to expose parties to the revocation of judgments passed with the involvement of defectively appointed members of benches. There are already over a thousand neo-judges in the ordinary courts and almost 50 in the Supreme Court.

"Here, the intentions are very clear. Legitimate judges are supposed to gracefully adjudicate in benches with neo-judges, whose judgments may be declared null and void in the future. Otherwise they will be grilled by the disciplinary commissioners"- the judge points out.

Challenging or legalising a judge’s status?

Another novelty is the introduction of a procedure allowing the impartiality and independence of a particular judge to be questioned.

On the surface, it may seem to eliminate defectively appointed neo-judges from proceedings and minimise the risk that rulings issued with their involvement will be overturned. Nothing could be further from the truth: this is, in fact, about casting the current situation in concrete and protecting neo-judges.

It will only be permissible to examine a judge’s impartiality "with account taken of the circumstances surrounding his or her appointment and his or her conduct after appointment" if, in the circumstances of the particular case, it "can bring about a breach of the standard of independence or impartiality that could affect the outcome of the case". It will not be easy to demonstrate such an effect in a specific case.

The procedure for filing such motions is not very citizen-friendly.

A party will only have three days to file them from the moment the party is notified of the membership of the bench.

The right to file a motion expires after that deadline. The motion itself will have to satisfy a number of strict formal conditions. Failure to satisfy them will mean that the motion will be rejected without a request to supplement the shortcomings.

The key issue will be who will adjudicate on the impartiality of the Supreme Court judge. And here again, there is a catch. In the first instance, the motion is to be examined in camera by the Supreme Court "in a panel of five judges drawn by lots from among the judges of the whole of the Supreme Court". In the second instance it is a panel of seven judges drawn by lots from among the judges of the whole of Supreme Court. What does that mean?

"The decision on the impartiality of a judge will be made by someone who has this status himself. And the number of new judges is constantly increasing. As a result, it is highly likely that a panel with neo-judges in the majority will decide on the status of a neo-judge. And the judgments of the Chamber of Extraordinary Control and Public Affairs of the Supreme Court to date indicate that no neo-judge has ever been removed because of such doubts"- the judge tells us.

There is still another trick: the bill only applies to the removal of a judge from a particular case, not removal from office.

"In other words, even if a miracle takes place and a case involving the removal of a new Supreme Court judge is heard by a bench consisting of old Supreme Court judges, and the neo-judge is removed because of a lack of impartiality, this may not be the case in other matters"- explains one of the judges.

Verifying or legalising judgments?

Duda’s bill introduces a mechanism for verifying final judgments issued in breach of the standard of independence or impartiality. A party will have six months from the entry into force of the bill to file a relevant motion.

This again sounds promising at first glance. But the devil is in the detail. A catch has been introduced: the circumstances accompanying a judge’s appointment cannot be the sole basis for challenging a decision made with his or her participation or questioning his or her independence and impartiality.

The imposition of such a restriction means that it will be practically impossible to verify judgments.

Not only that: the effect of applying this procedure will be the legalisation of a ruling made with the involvement of a neo-judge.

The restriction introduced by Duda is directly in conflict with the rulings of the international courts. In their opinion, gross defects in a given person’s appointment to the office of judge are sufficient to challenge a bench which includes that person and declare their judgments null and void. In October last year, when addressing questions about the status of neo-Judge Aleksander Stępkowski, the CJEU held that, if a judge was appointed in gross breach of the law, his or her judgement should be declared null and void.

Stępkowski – like several dozen other new judges – got into the Supreme Court as a result of the recommendation of the politicised National Council of the Judiciary. President Andrzej Duda appointed him before the appeals against the results of the Supreme Court recruitment had been resolved. He also ignored the ruling of the Supreme Administrative Court, which suspended the execution of the resolution with the recommendation to the Supreme Court, while a judge cannot be appointed without it. -This was a deliberate violation of the law – the Supreme Court later held.

Stępkowski’s case is important to the further fate of the neo-judges in the Supreme Court, including Małgorzata Manowska, first president of the Supreme Court, and Joanna Misztal-Konecka, president of the Civil Chamber. That is why Manowska and Misztal-Konecka are doing everything they can to torpedo the implementation of the judgment in his case. Manowska is blocking access to the case file for a panel comprising legal judges of the Supreme Court, while Misztal-Konecka recently removed the only legal judge from the panel (illegally, in the opinion of the Supreme Court judges) and filled the vacant positions with neo-judges (because legal judges had retired in the meantime). All this was done to ensure that the status of neo-judges of the Supreme Court was decided on by a panel which has neo-judges in the majority.

The problem also applies to the benches which are to review judgments. Just as in the case of examining the impartiality of a judge, the panels (five or seven people) will be drawn by lots from among all the judges. In other words, a decision made by neo-judges of the Supreme Court could end up in a panel in which neo-judges predominate.

Cases would not reach Strasburg

Duda’s bill introduces the possibility of seeking compensation for a final judgment issued in breach of the standard of impartiality at a level of between PLN 2,000 and PLN 20,000.

"This solution only serves the purpose of preventing these cases from reaching the ECtHR. This was how the problem of the tardiness of court proceedings was solved in the past. When a complaint about the length of court proceedings was introduced into domestic law, these cases stopped going to Strasbourg" – one of the judges tells us.

Neo-judges will evaluate neo-judges

The idea of reviewing the measures applied by the Disciplinary Chamber (e.g. removing a judge from adjudicating or reducing his or her salary) looks encouraging.

But again, this is pretence. Just to reiterate: The Disciplinary Chamber is not concerned about the rulings of the international courts. It recently suspended four judges, despite the CJEU’s interim measure: Maciej Ferek from the Regional Court in Kraków, Piotr Gąciarek from the Regional Court in Warsaw, Maciej Rutkiewicz from the District Court in Elbląg and Krzysztof Chmielewski from the Regional Court in Warsaw. It had also previously suspended Judge Paweł Juszczyszyn of the District Court in Olsztyn and Igor Tuleya of the Regional Court in Warsaw.

The new Professional Liability Chamber is to immediately examine the interim measures to date. If the decision to reduce a judge’s salary is overturned, the judge is to receive compensation for all components. Only that the decisions about the rulings of neo-judges of the Disciplinary Chamber will be made by neo-judges of the Supreme Court, as well as those neo-judges of the Disciplinary Chamber who will be in a new chamber.

"It was Duda who appointed people to the Disciplinary Chamber who are destroying the legal judges today. It is highly likely that, when nominating people to the new chamber, he will choose mainly neo-judges, including those he previously appointed to the Disciplinary Chamber"- assesses a judge who analysed the bill.

Translated by Roman Wojtasz

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