text by Dominika Sitnicka

On Tuesday 4 February 2020, President Andrzej Duda signed what is being referred to as the Muzzle Act. It will come into force a mere 7 days after its promulgation, on 14 February. A Valentine’s Day present for judges.

The obvious aim of the legislation is to prevent Polish courts from examining the legitimacy of judges appointed in the procedure before the new National Council for the Judiciary, which would in consequence constitute an examination of the independence of the Council itself.

Hence the provisions in the Act to extend the disciplinary responsibility of judges for:

– “acts or omissions likely to obstruct or significantly impede the functioning of the justice system”;

 

– “actions calling into question the existence of a judge’s employment relationship or the effectiveness of his appointment”.

Despite repressions ramping up even before the adoption of the law, courts in Poland continue to engage in such review. The Muzzle Act therefore introduces an additional provision that is intended to make it impossible to examine the independence of judges and the Council by even those courts which, adhering to the opinions of the CJEU and the Supreme Court, would decide to do so without concern for the risk of disciplinary liability.

In addition, a provision has been included in the act which opens the door for one of the Supreme Court’s new chambers to abolish the resolution of the combined chambers of the Court, adopted 23 January.

Where do things stand? Chambers in conflict

In the resolution of 23 January, the three combined “old” chambers of the Supreme Court stated that panels containing judges who were appointed in proceedings before the new Council, which is without its independence, are unlawful or may turn out to be unlawful. Therefore:

– Supreme Court judges who were recommended by the new National Council of the Judiciary should be excluded from adjudication;

 

– Common courts judges may be charged with procedural irregularities under the relevant provisions of criminal and civil procedure.

However, a court of appeal examining such a charge will not automatically declare such a judge unfit to rule, but will verify whether there were indeed irregularities in proceedings before the new Council, and will verify whether these irregularities affected the content of the ruling that was made.

The Disciplinary Chamber ignored the resolution of the merged Supreme Court chambers and after 23 January continued its work as if nothing had happened.

The Chamber of Extraordinary Control, which was also set up by the Law and Justice government and which is entirely composed of judges who underwent the procedure before the new Council, took a different approach. These judges have respected the resolution of the Supreme Court and are abstaining from adjudicating.

Since 23 January, sessions and hearings of the Chamber of Extraordinary Control have been suspended. Officially, this was for reasons unrelated to the resolution, but in cases forwarded to the Chamber and requiring rapid resolution because of statutory time-limits, judges from the Criminal Chamber ruled. The President of the Chamber of Extraordinary Control, Joanna Lemańska, filed such a motion to the First President of the Supreme Court, Małgorzata Gersdorf.

However, the judges of the Chamber of Extraordinary Control are of a different opinion regarding the impact of the CJEU judgment of 19 November and the possibility of examining the procedure before the new Council. In a resolution of 8 January 2020, an enlarged panel of judges of the Chamber of Extraordinary Control ruled that the independence of the National Council of the Judiciary and proceedings before it can be reviewed only when considering a judge’s appeal against a resolution by the Council, and only until the moment the President appoints the judge.

This was a definite narrowing of the scope of judicial review compared to the decision of the Labour Law and Social Security Chamber of the Supreme Court on 5 December 2019. This led Małgorzata Gersdorf to file a motion to the combined chambers of the Supreme Court, which led to the resolution of 23 January.

The fact that the judges of the Chamber of Extraordinary Control, despite obvious differences of opinion, acknowledge this resolution and are refraining from adjudicating, is an expression of their legalistic approach. Unlike the Disciplinary Chamber, they respect the legal principles of the Supreme Court of which they are part.

Power in the hands of the Chamber of Extraordinary Control

Meanwhile, in the so-called Muzzle Act, the legislator granted further powers to the Chamber of Extraordinary Control. These powers address the core of the dispute that arose between the Polish justice system and the Law and Justice government.

According to Article 26 of the Supreme Court Act, as amended by the Muzzle Act, it is the Chamber of Extraordinary Control to which will be addressed all cases in which motions or statements were submitted concerning “the disqualification of a judge or the designation of the court before which proceedings are to be conducted, including the charge of the lack of independence of the court or the lack of independence of the judge”.

This is a quite clever trick. We know that the government was seeking to stop such oversight, hence the provisions prohibiting the undermining of another judge’s status. Ultimately, the Muzzle Act introduces disciplinary responsibility for “reviewing the effectiveness of the appointment of a judge” (according to the resolution of the Supreme Court, this is not questioning the appointment itself and the status of the judge, but there is no doubt that this will be assessed by disciplinary officers following the wishes of the Ministry of Justice).

But what to do if an appellate court has the courage to review the independence of a court or of a judge following the procedure set out in the Supreme Court’s resolution?

The authorities have found a workaround: under the amendments to the law on the Supreme Court, the court will be obliged to refer the case to the Chamber of Extraordinary Control.

Will a common court be able to ignore such a provision? It is difficult to say – after all, it does not directly contradict the CJEU judgment, as it theoretically leaves intact the possibility of examining judicial independence. But this will be done by a new Chamber of the Supreme Court. And paragraph 3 of the amended Article 26 imposes on that same Chamber an obligation to leave a motion without further consideration “if it involves the determination and assessment of the lawfulness of the appointment of a judge or his authority to perform judicial tasks”.

However, even without such a provision, it is more than likely that the Chamber of Extraordinary Control would leave such cases unreviewed. As we know, in its resolution of 8 January it presented a very narrow interpretation of the CJEU judgment, narrower than that provided for in the resolution of the Supreme Court.

Subsequent paragraphs of Article 26, added in the course of legislative work on the Muzzle Act, also introduce a new type of complaint about the unlawfulness of a final judgment. It is, of course, to apply to rulings in which “the illegality consists in undermining the status of a person appointed to hold office as a judge who issued a ruling in the case.”

Interestingly, the original institution of an application for a declaration of unlawfulness, which comes from civil procedure, assumes that such a complaint is filed when a party has been harmed. Here, however, “it is not necessary to demonstrate any damage caused by the ruling to which the complaint relates.”

This means that all such cases will go straight to the Chamber of Extraordinary Control, which will not even bother to investigate their circumstances, but will simply automatically rule on their illegality. And behind these applications will be the Prosecutor General, Zbigniew Ziobro.

Chamber of Extraordinary Control – a court unto itself

As we know, for the time being the Chamber of Extraordinary Control refrains from adjudicating because it respects the resolution of the Supreme Court. But there are provisions in the new law stating that in cases concerning the independence of judges and the independence of the court, resolutions of thar Chamber are binding on all panels of the Supreme Court.

The Chamber of Extraordinary Control is not bound by resolutions of other compositions of the Supreme Court, even if those resolutions the force of a legal rule.

What does this mean?

This means that theoretically, after the law comes into force, the Chamber of Extraordinary Control can convene and adopt a resolution, even one similar to its resolution of 8 January. Such a resolution would again state that it is not allowed to examine the appointment procedure of a judge before the new National Council of the Judiciary if the President has already appointed that judge. And it would invalidate the Supreme Court resolution of 23 January.

But the Chamber is not adjudicating. For now.

Yet, to pass a resolution, you have to be able to adjudicate. The second possibility, therefore, is for the Chamber of Extraordinary Control to recognise that with the entry into force of the law, the new rules for being bound by resolutions apply to cases before the adoption of that law. And simply recognise that they are not bound by the resolution of the Supreme Court of 23 January, or by any other resolution of the Supreme Court on this matter.

It should be kept in mind that the decision of the Constitutional Tribunal is also on the horizon, which on March 3 will announce a verdict on a spurious competence dispute. Its content is predictable.

Perhaps the Chamber of Extraordinary Control will simply wait for this judgment, which would mean that it will return to adjudication after 3 March. It will then pass a resolution and start assuming all cases concerning the independence of courts.