Despite CJEU verdict, Judiciary Council and Disciplinary Chamber not slowing down

Share

Co-founder of the Rule of Law in Poland and the Wiktor Osiatyński Archive, rule of law monitoring projects. Doctor of…

More

The Disciplinary Chamber of Poland’s Supreme Court has convicted Judge Alina Czubieniak for a verdict she issued. This represents the beginning of a new phase in repressions against judges in Poland. The National Council of the Judiciary has elected new judges to two chambers of the Supreme Court.



Text by Anna Wójcik

 

Despite the 19 November judgment of the Court of Justice of the European Union, the statement addressing that judgment by the First President of the Supreme Court, and despite the appeal to the country’s authorities by 13 organisations associating lawyers and involved in the defence of the rule of law in Poland to immediately implement the CJEU’s judgment, the National Council of the Judiciary and the Disciplinary Chamber of the Supreme Court continue their activities.

 

In the opinion of organizations that signed the appeal – including the judges’ associations “Iustitia” and “THEMIS”, prosecutors from “Lex Super Omnia”, the Stefan Batory Foundation, Helsinki Foundation for Human Rights, Free Courts Initiative, Amnesty International Poland, and our Osiatyński Archive – to properly implement the CJEU judgment, a new National Council of the Judiciary (KRS) must be appointed.

 

The KRS in its current form should suspend its activities in light of the fact that 15 of its judicial members were appointed in violation of EU standards explicitly detailed in the Court of Justice’s judgment. All nomination proceedings conducted by the KRS should be suspended.

 

In turn, the Disciplinary Chamber of the Supreme Court should suspend all disciplinary proceedings.

 

KRS in charge of Supreme Court appointments

 

However, two days after the Court of Justice’s ruling, on November 21st, the National Council of the Judiciary decided to fill vacancies in the Civil and Criminal Chambers of the Supreme Court. Judge Dariusz Pawłyszcze received a recommendation to the Civil Chamber.

 

On Friday, November 22nd, the KRS will decide on recommendations from the Labour Law and Social Security Chamber. The procedure, which was to be concluded in 2018, was suspended after a scandal erupted in September in the Ministry of Justice.

 

Disciplinary Chamber punishes Judge Czubieniak

 

Supreme Court Judge Tomasz Przesławski, President of the Disciplinary Chamber, issued a statement in which he stressed that “the Disciplinary Chamber will continue to perform its responsibilities related to the administration of justice entrusted to it by the constitutional authorities of the Republic of Poland.”

 

And thus, the Disciplinary Chamber today issued today a final judgment convicting Alina Czubieniak, Judge of the District Court in Gorzów Wielkopolski, for one of her rulings – however, no punishment was imposed. Explanations in the case of Judge Czubieniak have been demanded by various authorities, including – for the first time –the UN Special Rapporteur on the Independence of Judges and Lawyers, Diego García-Sayán.

 

Disciplinary Chamber President with unique interpretation of CJEU verdict

 

The statement by President Przesławski also contains a peculiar interpretation of the CJEU ruling. He maintains that the judgment has effect only with respect to the main proceedings conducted by the Labour Law and Social Security Chamber of the Supreme Court in which questions were referred for a preliminary ruling, and thus “invoking decisions contained therein in other court proceedings is invalid.”

 

In addition, Judge Przesławski invokes the Polish Constitution to emphasize that only the Constitutional Tribunal has the power to interpret provisions of Polish law. He also refers to the ruling of the Constitutional Tribunal chaired by President Julia Przyłebska, which “legalised” the National Council of the Judiciary.

 

Meanwhile, the CJEU judgment clearly states and reiterates several times that the independence of the judiciary is a matter of European law and therefore falls within the competence of the Luxembourg Court.

 

See for instance the relevant paragraph 75 that reads:

 

“The Court has previously held that, although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 52 and the case-law cited.”

 

In paragraph 164, the Grand Chamber elaborates:

 

“The national court is required to ensure within its jurisdiction the judicial protection for individuals flowing from Article 47 of the Charter and from Article 9(1) of Directive 2000/78, and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.”

 

The issue of the relation of the CJEU judgment and interpretation of the Polish Constitution is explained by Professor Ewa Łętowska of the Polish Academy of Sciences, a former justice of the Constitutional Tribunal and first ever Commissioner for Human Rights in Poland.

 

“The ruling of the EU Court of Justice on 19 November 2019 explains what the independence of courts and independence of judges mean. These two terms are used in our Constitution. So, the criteria formulated in this ruling impart meaning to our constitutional provisions which refer to judicial independence.

 

The CJEU gives meaning to Polish law, which is applied by Polish courts.

 

Polish courts translate the standards of EU law as determined by the CJEU into what happens in Poland. This was the subject of the CJEU ruling.
The CJEU detailed what criteria must be met by an independent authority and an independent judge. The effect of the CJEU applies to the operation of Polish courts.

 

Whenever Polish courts find it difficult to address the independence of a Polish authority or the independence of a court, they can refer to the criteria set out in the CJEU judgment. This is where EU law and Polish law come together.

 

That is why this ruling is so important. It shapes legal thinking on matters of independence. Both of judges and of lawyers who appear before the courts. It should also shape the thinking of those who legislate. It should, but will it? In this, I am unable to give an answer,” Łętowska concludes.

 

KRS is “satisfied”

 

The National Judicial Council issued a statement in which it “notes with satisfaction” that the Grand Chamber of the Court of Justice of the EU did not share the position presented in June by the Advocate General of the CJEU, Evgeni Tanchev. The Advocate General stated that the KRS infringed Article 19.1 TEU and Article 47 of the Charter of Fundamental Rights.

 

The CJEU did not assess the Council of the Judiciary itself, but provided the Labour Law and Social Security Chamber with cross-sectional and detailed criteria for assessing the Disciplinary Chamber, as well as the KRS. In its judgment, the Court of Justice stressed that an assessment of the appointment and functioning of the KRS is a necessary component in assessing the independence of the judges of the Disciplinary Chamber who were appointed on the recommendation of the KRS, and in order to make this assessment, the Labour Law and Social Security Chamber must consider all the information available to it.

 

The scale and variety of documented reservations concerning the establishment and functioning of the KRS make it likely that the Labour Law and Social Security Chamber will soon determine that the KRS does not guarantee the appointment of an independent court within the meaning of EU law. The First President of the Supreme Court, Małgorzata Gersdorf, announced that the Labour Law and Social Security Chamber would make this assessment without undue delay. She admitted that the CJEU shared the Supreme Court’s reservations regarding the independence of the Disciplinary Chamber and the National Council of the Judiciary. She also appealed to the authorities for a new law on the KRS.

 

Advocates at CJEU demolish KRS narrative

 

Further on, the KRS statement maintains that “the Court’s position is consistent with most of the arguments presented by the Council’s attorneys at the oral hearing.”

 

The above statement is refuted by Sylwia Gregorczyk-Abram and Michał Wawrykiewicz, who represented justices of the Supreme Administrative Court and Supreme Court in the case concerning the CJEU ruling.

 

Rule of Law in Poland obtained the following statement from Gregorczyk-Abram and Wawrykiewicz:

 

“The position published today of the new KRS on the EU Court of Justice’s judgment of 19 November 2019 in joined cases C-585/18, C-624/18 and C-625/18 shows that the new KRS fails to understand the CJEU’s ruling, its significance, and its exceptionally groundbreaking nature.

 

Contrary to the position taken by the new KRS in its statement, the CJEU has very clearly confirmed that it is competent to assess the condition of the independence of the judiciary in a Member State, as this issue is covered by EU law. In its judgment of 19 November, the CJEU reinforced its previous jurisprudence in this matter.

 

In the course of the proceedings before the CJEU, the new KRS maintained that this issue is not a matter of EU law. Therefore, the claim of the KRS that the CJEU shared the arguments put forward by the KRS in the proceedings is untrue.

 

Moreover, the CJEU has provided a very clear, unambiguous interpretation of European law, which is its primary task. Within the framework of this interpretation, it has precisely set out the criteria that an independent, impartial court must meet. The Court of Justice made it clear that such an independent court, as defined by European standards, cannot be appointed by a body which is decisively dependent on the executive and legislative powers. And this is precisely the situation of the new KRS.

 

In the statement by the KRS we read: ‘Although in its ruling the Court [of Justice] states that every political factor involved in the appointment of judges may give rise to doubts and lead to an assessment of whether a court is independent, it also points out that only the totality of factors – with examples given – that may lead to a final conclusion excluding the presence of the attributes of independence and impartiality. Among these factors, [the Court of Justice] mentions the practice of authorities involved in the judicial appointment process. The Council notes that practice is a matter of fact. The nature of practice is that it can change over time. The laws establishing the political system, however, are universal in nature.’

 

Contrary to the above position of the new KRS, the CJEU did not list in its ruling any ‘accidental’ factors that affect the lack of independence and impartiality of a body participating in the judicial nomination procedure.

 

On the contrary, the CJEU listed very specific factors, starting with shortening the term of office in contravention of the Constitution, through the politicised selection of new members, the lack of transparency, and the characteristics and actual circumstances of the functioning of the body participating in the judicial nomination procedure.

 

There is no doubt that the Luxembourg Court has perfectly grasped the essence of the lack of independence of judges appointed under the new system created over the last three years in Poland. By the same token, the CJEU provided all courts in Poland with an unambiguous test for assessing the independence of courts and individual judges.

 

We are convinced, as lawyers and above all as citizens, that soon, on the basis of the CJEU judgment – the standard of EU law binding in Poland – Polish courts will assess whether a given judge appointed by the new KRS has the right to sit on the bench, or whether a ruling issued by such a judge may be considered binding.

 

It should be noted that the fact that the Luxembourg Court has interpreted and defined criteria, rather than resolving the question referred for a preliminary ruling, is the most normal practice.

 

The CJEU has issued an instructional rather than a final judgment, which is less frequently issued by the Court in preliminary ruling cases.
We encourage the members of the new KRS to study the joint position of civil society organisations on the CJEU judgment of 19 November 2019.”

 

[translated by Matthew La Fontaine]



Author


Co-founder of the Rule of Law in Poland and the Wiktor Osiatyński Archive, rule of law monitoring projects. Doctor of…


More

Published

November 22, 2019

Tags

Supreme CourtPolandConstitutional TribunalDisciplinary Chamberjudgesrule of lawdisciplinary proceedingsZbigniew ZiobroNational Council of the JudiciaryCourt of Justice of the EUjudicial independenceEuropean CommissionEuropean UnionAndrzej DudaMałgorzata ManowskaCourt of JusticeMinister of JusticeEuropean Court of Human RightsAdam BodnarIgor Tuleyadisciplinary systemmuzzle lawJarosław KaczyńskiNational Recovery PlanCJEUMateusz Morawieckineo-judgesCommissioner for Human RightsCourt of Justice of the European UnionPrzemysław RadzikWaldemar ŻurekdemocracyNational Council for JudiciaryPiotr Schabelectionspresidential electionsKamil ZaradkiewiczJulia Przyłębskamedia freedomcriminal lawelections 2023disciplinary commissionerharassmentprosecutionSupreme Administrative CourtHungaryelections 2020preliminary rulingsjudiciaryDagmara Pawełczyk-WoickaK 3/21First President of the Supreme CourtPaweł JuszczyszynNational ProsecutorRecovery FundPresidentMichał LasotaProsecutor GeneralŁukasz PiebiakBeata MorawiecprosecutorsEuropean Arrest Warrantfreedom of expressionConstitutionPrime MinisterSejmimmunityMaciej NawackiIustitiaRegional Court in KrakówCriminal ChamberCOVID-19Maciej FerekOSCEMałgorzata GersdorfcourtsVenice CommissionMarek SafjanMinistry of JusticeExtraordinary Control and Public Affairs ChamberEU budgetdisciplinary liability for judgesWojciech HermelińskiPiSNCJKrystian MarkiewiczStanisław PiotrowiczPresident of the Republic of PolandAleksander Stepkowskicommission on Russian influenceJustice FundTHEMISLabour and Social Security ChamberLaw and JusticeNational Public ProsecutorCouncil of Europecriminal proceedingsconditionalitycorruptionStanisław BiernatreformsAnna Dalkowskafreedom of assemblyconditionality mechanismWłodzimierz WróbelsuspensionPiotr GąciarekOrdo IurisReczkowicz and Others v. PolandparliamentMarcin RomanowskiAndrzej Stępkamedia independenceChamber of Professional LiabilityBroda and Bojara v PolandXero Flor w Polsce Sp. z o.o. v. PolandP 7/20K 7/21LGBTPresident of PolandNational Reconstruction PlanJarosław DudziczLex DudaProfessional Liability ChamberMay 10 2020 electionsStrategic Lawsuits Against Public ParticipationPiotr PrusinowskidefamationLex Super OmniamediaUrsula von der LeyenKrzysztof ParchimowiczEAWabortionMichał Wawrykiewiczelectoral codeAmsterdam District CourtNext Generation EUSLAPPConstitutional Tribunal PresidentDidier ReyndersTVPEwa ŁętowskaSenateParliamentary Assembly of the Council of EuropeLech GarlickiSylwia Gregorczyk-AbramArticle 6 ECHRAndrzej ZollNational Electoral CommissionFreedom HouseJarosław WyrembakJustice Defence Committee – KOSreformArticle 7acting first president of the Supreme CourtSupreme Court President2017PM Mateusz MorawieckipolicePiotr TulejaJerzy StępieńAndrzej RzeplińskiFerdynand RymarzStanisław RymarMałgorzata Pyziak- SzafnickaDariusz ZawistowskiOKO.pressreportSławomira Wronkowska-JaśkiewiczMirosław WyrzykowskiMarek ZubikDariusz KornelukMarzanna Piekarska-DrążekEuropean Parliamentmilestoneselectoral processAndrzej MączyńskiJózef IwulskiWojciech MaczugavetoOLAFViktor OrbanSzymon Szynkowski vel SękMaciej Miterajudcial independencecourt presidentsJanusz NiemcewiczTeresa Dębowska-RomanowskaMarek MazurkiewiczZiobroMirosław GranatWojciech ŁączkowskiBiruta Lewaszkiewicz-PetrykowskaStefan JaworskiAdam JamrózKazimierz Działochainsulting religious feelingsrestoration of the rule of lawright to fair trialXero Flor v. PolandLaw on the NCJKrakówstate of emergencydecommunizationBelarusAdam SynakiewiczAstradsson v IcelandK 6/21Joanna Hetnarowicz-SikoraCentral Anti-Corruption BureausurveillanceMariusz KamińskiPegasusEdyta BarańskaJoanna Misztal-KoneckaCivil ChamberUkraineSupreme Audit OfficeMarian BanaśKrystyna PawłowiczCCBERafał PuchalskiThe Council of Bars and Law Societies of EuropeMarek PietruszyńskiMichał Laskowskipublic opinion pollsmear campaignMariusz MuszyńskiHuman Rights CommissionerMaciej TaborowskiPaweł FilipekInternational Criminal CourtKonrad WytrykowskirecommendationaccountabilityJakub IwaniecDariusz DrajewicztransparencyFree CourtsBohdan Zdziennickiretirement ageSLAPPsPATFoxLGBT ideology free zoneslexTuskAdam Tomczyński11 January March in Warsawabuse of state resourcesEuropean Association of Judgespublic mediaEwa Wrzosekcourt changesC-791/19democratic backslidingcoronavirushuman rightscriminal codePiebiak gateelections fairnessZuzanna Rudzińska-BluszczJarosław GowinEU law primacyPiotr PszczółkowskiBelgiumtransferNetherlandscivil societyRussiaBogdan Święczkowskielections integrityintimidation of dissentersMarcin Warchołlex NGOGeneral Assembly of the Supreme Court JudgesAgnieszka Brygidyr-DoroszCrimes of espionageNCBiRJoanna KnobelKasta/AntykastaThe National Centre for Research and DevelopmentHater ScandalPaweł StyrnaGrzegorz FurmankiewiczDariusz BarskiJoanna Kołodziej-MichałowiczJustyna WydrzyńskaKrystyna Morawa-FryźlewiczEwa ŁąpińskaIrena BochniakZbigniew ŁupinaNational Broadcasting CouncilKatarzyna ChmuraStanisław ZdunLasotaAntykastaEuropean Anti-Fraud Office OLAFMarek JaskulskiRome StatuteCourt of Appeal in Warsawlex RaczkowskiCourt of Appeal in KrakówNational Council for the JudiciaryMarek Astgag lawsuitsAssessment ActAct sanitising the judiciaryenvironmentPorozumienie dla PraworządnościAgreement for the Rule of LawMaria Ejchart-DuboisPaulina Kieszkowska-Knapikstrategic investmentPiotr HofmańskiUS State DepartmentPutinismKaczyńskilex Wośdisinformationextraordinary commissionlegislationthe Spy ActZbigniew KapińskiAnna GłowackaHelsinki Foundation for Human RightsinvestmentMałgorzata Wąsek-WiaderekOsiatyński'a ArchiveJarosław MatrasPaulina AslanowiczPiotr Raczkowskict on the Protection of the PopulatioAndrzej SkowronoppositionDariusz DończykPetros TovmasyanJerzy KwaśniewskiPiotr MazurekGrzegorz PudaNational Recovery Plan Monitoring CommitteeinsultState TribunalDonald Tusk governmenttest of independencepilot-judgmentVěra JourováTomasz Koszewskiright to an independent and impartial tribunal established by lawJakub KwiecińskidiscriminationAnti-SLAPP DirectiveODIHRcivil lawDonald TuskJustice MinistryJoanna Scheuring-WielgusAction PlanAdam GendźwiłłElżbieta Jabłońska-MalikSebastian Mazurekjustice system reformJędrzej Dessoulavy-ŚliwińskiEuropean Court of HuMałgorzata FroncRafał LisakKarolina MiklaszewskaRadosław BaszukNGOFull-Scale Election Observation MissionWałęsa v. PolandAct on the Supreme CourtLech WałęsaMichał DworczykDworczyk leaksAleksandra RutkowskaE-mail scandalRafał WojciechowskidelegationsTomasz SzmydtEmilia SzmydtWatchdog PolskaArkadiusz CichockiKaspryszyn v PolandDobrochna Bach-GoleckaMonika FrąckowiakNCR&Delection fairnessIvan Mischenkomedia pluralism#RecoveryFilesWiesław Kozielewiczelectoral commissionsMarcin MatczakChamber of Extraordinary Control and Public AffairsMałgorzata Dobiecka-WoźniakArkadiusz RadwanMarcin KrajewskiBohdan BieniekGeneral Court of the EUKrzysztof Rączkarepairing the rule of lawPoznańNational School of Judiciary and Public Prosecution (KSSiP)Koan Lenaertscodification commissionKarol WeitzŁukasz BilińskiPKWhate speechGrzęda v PolandŻurek v PolandSobczyńska and Others v PolandRafał Trzaskowskimedia lawPrzemysła RadzikElżbieta KarskaJacek Czaputowiczhate crimesChamber of Extraordinary Verificationinfringment actionEU valuesENCJIsraelforeign agents lawOrganization of Security and Co-operation in EuropeFirst President of the Suprme CourtLGBT free zonesequalityPrzemysław Czarneklegislative practiceAK judgmentSimpson judgmentpublic broadcastermutual trustLMIrelandIrena MajcherAmsterdamthe Regional Court in WarsawOpenbaar MinisterieRegional Court in AmsterdamENAZbigniew BoniekOmbudsmanKraśnikNorwayNorwegian fundsNorwegian Ministry of Foreign AffairsC-487/19Article 10 ECHRUnited NationsLeon KierespopulismLIBE CommitteeFrans TimmermansUS Department of StateSwieczkowskiadvocate generalpress releaseRights and Values ProgrammeC-619/18defamatory statementsStanisław ZabłockiCouncil of the EUequal treatmentfundamental rightsCT PresidentEUWhite Paperlustrationtransitional justice2018Nations in TransitWorld Justice Project awardWojciech SadurskiAct of 20 December 2019repressive actKoen LenaertsharrassmentAlina CzubieniakGerard BirgfellerEwa Maciejewskapostal votepostal vote billlawyersLSOjudgePechKochenovEvgeni TanchevFreedom in the WorldECJFrackowiakAmnesty Internationaltrans-Atlantic valuesresolution of 23 January 2020Olsztyn courtoligarchic systemEuropean Public Prosecutor's OfficePolish National FoundationLux VeritatisMałgorzata BednarekPiotr WawrzykTVNjournalistslexTVNclientelismArticle 258Przemysła CzarnekEducation MinisterIpsosOlimpia Barańska-MałuszeHudocKonrad SzymańskiPiotr BogdanowiczPiotr Burasauthoritarian equilibriumPolish mediaRzeszówMichał WośMinistry of FinanceJacek SasinErnest BejdaThe First President of the Supreme CourtMaciej CzajkaMariusz JałoszewskiŁukasz RadkepolexitRoman GiertychWiktor JoachimkowskiborderprimacyEU treatiesAgnieszka Niklas-BibikSłupsk Regional CourtMaciej RutkiewiczMirosław Wróblewskiright to protestSławomir JęksaDolińska-Ficek and Ozimek v PolandTribunal of StateLeszek MazurCelmerC354/20 PPUC412/20 PPUAusl 301 AR 104/19Karlsruheact on misdemeanoursCivil Service ActForum Współpracy Sędziówmedia taxGermanyMariusz Krasońinterim measuresautocratizationMultiannual Financial Frameworkabortion rulingproteststhe NetherlandsDenmarkSwedenFinlandadvertising taxmediabezwyboruArticle 2Forum shoppingEuropean Economic and Social CommitteeSebastian KaletaC-156/21C-157/21Marek PiertuszyńskiNational Prosecutor’s OfficeBogdan ŚwiączkowskiRome IIBrussels IJacek KurskiKESMAIndex.huTelex.huJelenJózsef SzájerKlubrádióGazeta WyborczaPollitykaDisicplinary Chamber