The article was posted in Polish at OKO.press on 20 March 2021.

After the National Prosecutor’s Office headed by Bogdan Święczkowski requested the lifting of the immunity of three judges of the Criminal Chamber, it has now come to light that Zbigniew Ziobro’s men are preparing for a frontal assault on the old, legal Supreme Court.

The wyborcza.pl portal revealed on Saturday 20 March that the National Prosecutor’s Office demanded access to the files of 25 cases heard by judges from the Criminal Chamber. These are disciplinary cases regarding attorneys-at-law which, according to regulations passed by PiS, should be heard by the illegal Disciplinary Chamber.

However, the disciplinary court of the bar, like many lawyers, does not recognize the Disciplinary Chamber as being a legal court and submitted the cases to the Criminal Chamber, which has heard most of them.

Now, as wyborcza.pl revealed, the proceedings are being conducted by the internal affairs department of the National Prosecutor’s Office, which was appointed by PiS to prosecute judges and prosecutors. The prosecutor’s office is not disclosing the title of the proceedings or its criminal classification. It also doesn’t say at what stage it is – whether these are preliminary proceedingss or whether an investigation has already been launched.

However, knowing the ‘achievements’ of this department, namely prosecuting judges and prosecutors known for their defence of the rule of law, it can be assumed that the proceeding (possibly an investigation) would have the objective of holding the judges of the Supreme Court criminally liable for hearing these 25 cases. Therefore, the prosecutor’s office would be prosecuting the judges for their judicial activity, in which they are independent and impartial, as well as for implementing the CJEU’s rulings.

However, the assault on the Criminal Chamber is no accident. It is one of the three old, legal Chambers of the Supreme Court, whose judges have shown that they will defend the rule of law and an independent Supreme Court. If charges are pressed, this will also be the public humiliation of these judges. However, it will echo throughout the EU, all the more so that the prosecutor’s office will use criminal charges to change the CJEU rulings that the Supreme Court judges have applied.

Who will the investigation of the National Prosecutor’s Office strike at?

The National Prosecutor’s Office requested the files from the Criminal Chamber a dozen or so days ago. The letter to the President of the Supreme Court was signed by the National Prosecutor himself, Bogdan Święczkowski.

Judgements have already been passed in most of these cases, while a few cases were suspended. Only two are still waiting for consideration. Therefore, if the National Prosecutor’s Office decides to file a motion to lift the immunity of the judges and press criminal charges, for example for allegedly overstepping their rights, this will pose a threat to everyone who dealt with these cases. In other words, a dozen or so judges of the Criminal Chamber who have ruled on them. The president of the Criminal Chamber, Michał Laskowski, who also ruled on the cases and appointed the panels, and even the former president of the Supreme Court, Małgorzata Gersdorf, are under threat of being charged.

Prof. Gersdorf decided that the majority of appeals against decisions of the disciplinary court for attorneys were sent to the Criminal Chamber. When her term of office expired at the end of April 2020 and when she was replaced by President Małgorzata Manowska (appointed by President Andrzej Duda), some of these cases were still being accepted by the president of the chamber, Michał Laskowski. The attorneys themselves addressed the appeals to the Criminal Chamber rather than to the illegal Disciplinary Chamber, but this was curbed in the summer of 2020 by President Manowska.

Since then, the president of the Criminal Chamber has been opening his mail in her presence, and if appeals in disciplinary cases are received, which are addressed to the Criminal Chamber, Manowska takes them away.

It arises from OKO.press’s information that National Prosecutor Bogdan Święczkowski demanded information from the Supreme Court on whether any of the judges hearing these cases stated that they do not have the jurisdiction, as well as who works in the secretarial offices of the Chamber, together with their job specifications. Why does the prosecutor’s office need this information? This knowledge can be useful for attributing alleged criminal liability to specific people for hearing disciplinary cases against attorneys.

The demand to provide the files is another strike at the old, legal Supreme Court. Several days ago, the National Prosecutor’s Office applied for the lifting of the immunity of three judges from this chamber for alleged errors in issuing two judgments. The request is groundless, as the secretarial staff are responsible for the errors.

This was confirmed by the President of the Supreme Court in a statement. The request to lift the immunity is, however, primarily a strike at a legal authority, namely Professor Włodzimierz Wróbel of the Jagiellonian University, who was Małgorzata Manowska’s most serious opponent in the elections to the post of President of the Supreme Court. Wróbel is also a harsh critic of the bad change in the courts introduced by the current rulers.

The prosecutor’s office wants to undermine the CJEU rulings and the historic resolution of the Supreme Court by force

The proceedings into the rulings of the Supreme Court’s Criminal Chambers shows that the prosecutor’s office would like to discipline the old, legal judges of the Supreme Court and to impose its interpretation of the law, which is contrary to the case-law of the CJEU and the Supreme Court, by force.

By prosecuting the judges, the prosecutor’s office would be also interfering in the case-law of the Supreme Court and the CJEU, and would exerting pressure on judges and inciting a so-called chilling effect on them. Therefore, the proceedings targeted at the Criminal Chamber would have features of a political investigation.

Just to reiterate. The dispute in this matter is about the legality of the Disciplinary Chamber, the new National Council of the Judiciary and the judges recommended by it, including the new judges of the Supreme Court. Most lawyers and judges are questioning their legality. The new NCJ is politicized – it was staffed with judges who agreed to cooperate with Zbigniew Ziobro’s justice ministry.

The same is true of the Disciplinary Chamber, which, other than the judges collaborating with Ziobro’s ministry, was also staffed with former prosecutors, also Ziobro’s associates.

The CJEU issued a landmark ruling in November 2019, in which it told Polish judges how to examine the legality of the new NCJ and the Disciplinary Chamber. Based on this ruling, the Supreme Court issued a judgment and a historic resolution in the full membership of the three, old legal Chambers, namely the Civil Chamber, the Criminal Chamber, and the Chamber of Labour and Social Security. It arises from this judgment and resolution that the new NCJ is politicized, so its promotions for judges can be examined for legality. The Supreme Court also ruled that the Disciplinary Chamber is not a court and its rulings are not binding.

How Gersdorf implemented the CJEU ruling

In order to save its nominees in the courts and judges recommended by the new NCJ, PiS hurriedly passed the unconstitutional Muzzle Act prohibiting judges from challenging the legality of institutions established by PiS and the legality of institutions staffed by PiS. Judges face penalties for this, including expulsion from the profession. This was supposed to block the judges from applying the CJEU ruling and the Supreme Court’s resolution.

The CJEU additionally suspended the adjudication activity of the Disciplinary Chamber in April 2020 pending a judgment in its case. And the then president of the Supreme Court, Małgorzata Gersdorf, froze its work. She then just transferred some of the cases to the Criminal Chamber.

But the suspension did not last long. Because President Gersdorf’s term of office ended and her position was temporarily taken by President Andrzej Duda’s ‘commissioner’ (acting president of the Supreme Court), Kamil Zaradkiewicz. After a dozen or so days, he changed Gersdorf’s order and unfroze the work of the Disciplinary Chamber, with the exception of disciplinary cases of judges. That is why the Chamber is continuing, for example, to lift the immunity of judges.

Since then, there has also been a dispute between the new and the old judges of the Supreme Court over cases transferred to the old, legal Chambers. These are cases involving attorneys-at-law, but also precedent-setting actions against new judges of the Supreme Court to establish that they are not judges. They are pending in the Labour and Social Security Chamber and are awaiting a ruling by the CJEU on the matter. The Disciplinary Chamber also wants to take over these actions.

And now the National Prosecutor’s Office is entering the dispute. This was only to be expected, because its head, Bogdan Święczkowski, had already fiercely attacked President Małgorzata Gersdorf for freezing the work of the Disciplinary Chamber. At that time, Święczkowski was demanding an explanation from the president of the Supreme Court. He wrote that her decision is in conflict with the Act on the Supreme Court, which PiS has amended many times in order to be able to take control over the Supreme Court.