by Łukasz Woźnicki  

The article was published in Polish at Gazeta Wyborcza (wyborcza.pl) on 20 March 2021 

National Prosecutor Bogdan Święczkowski, Prosecutor General Zbigniew Ziobro’s right-hand man, informed the Supreme Court of the pending proceedings. In a letter addressed to the First President of the Supreme Court Małgorzata Manowska, Święczkowski requested the handover of the files of the cases handled by the Criminal Chamber last year. The prosecutor also demanded detailed information on the organisation of work in the chamber.

All this for the purposes of the proceedings being handled by the internal affairs department of the National Prosecutor’s Office. This is a special unit that was supposed to combat pathologies in the judiciary, and has recently been involved in prosecuting rebellious judges.

According to our information, this is about the files of a total of 25 cases. ‘The public prosecutor requested them in the procedural mode, so, according to the regulations, the Supreme Court has to hand them over. The prosecutor’s office has the right to conduct criminal proceedings, although it is not clear what these proceedings are for or against whom,’ they say in the Supreme Court.

‘What are the proceedings about? On whose initiative were they initiated? At what stage are they?’ these are some of the questions we asked the National Prosecutor’s Office.

‘Proceedings have been registered in the Department of Internal Affairs, within which the need arose to become acquainted with the case files of the Supreme Court. Therefore, the prosecutor asked for them to be lent,’ the prosecutor’s office replied. ‘The good of the pending proceedings prevents the provision of further information about the case,’ it added.

The war over the files in the Supreme Court 

The information requested by the prosecutor’s office indicates that the proceedings could apply to a ‘war over files’ that is going on in the Supreme Court. The prosecutors were interested in cases which, according to the Act on the Supreme Court, should be examined by the Disciplinary Chamber. However, they were taken over by the Criminal Chamber.

The decision to redirect cases to another chamber was made by the previous first president of the Supreme Court, Małgorzata Gersdorf. ‘The continuation of operations by the Disciplinary Chamber poses a serious threat to the stability of the legal order in Poland,’ acknowledged Gersdorf when the Supreme Court ruled that the Disciplinary Chamber was not a court.

According to the presidential Act on the Supreme Court, the chamber should hear disciplinary cases of judges, attorneys-at-law and prosecutors. The President only filled that chamber with people nominated by the politicised NCJ, including Ziobro’s former prosecutors and lawyers associated with the Law and Justice (PiS) party. It is for this reason, among others, that the Supreme Court ruled that the chamber does not meet the standards of an independent court, and its rulings are burdened with an irremovable defect. The chamber was suspended in April by the EU Court of Justice.

Gersdorf first called on the judges of the Disciplinary Chamber to refrain from ruling. She then decided to transfer the cases to other chambers, and froze the Disciplinary Chamber itself with an order. The First President implemented the judgment of the CJEU, but the prosecutor’s office announced that she had breached the Act on the Supreme Court and the Constitution.

‘The order of the First President of the Supreme Court could lead to the examination of cases in a manner which is in conflict with the statutory procedure,’ wrote the prosecutor’s office in a press release, and Święczkowski himself demanded written explanations from Gersdorf.

Manowska takes over consignments 

Disciplinary cases were being received by the Criminal Chamber for over six months. This was not even changed by the overruling of Gersdorf’s order by the temporary commissioner of the Supreme Court, Kamil Zaradkiewicz, a former director in Ziobro’s ministry. The Higher Disciplinary Court of the Bar, which does not recognise the decisions of the Disciplinary Chamber, continued to refer cases. The consignments were addressed directly to the president of the Criminal Chamber, Michał Laskowski. Meanwhile, the president registered the cases and forwarded them to the judges for consideration.

The practice was finally put to an end by the new first president, Małgorzata Manowska, former deputy minister of justice in the PiS government. Today Laskowski has to open consignments in her presence and the first president takes the files of disciplinary cases. Manowska herself demanded that the Criminal Chamber hands over cases several times, as has the president of the Disciplinary Chamber. However, the Criminal Chamber has considered most of the cases on their merits and has closed them. Some proceedings have been suspended. Some are still pending. There were 25 in total.

It arises from our information that the Supreme Court handed over the files to the prosecutor’s office this week. We asked the Supreme Court about this, but have not yet received an answer.

Nor do we know exactly what the prosecutor’s office needs the files for.

‘Just six months ago, it could have been presumed that it was about getting the files out of the Criminal Chamber. But these cases have largely ended by now,’ the judges wonder. ‘There is also another possibility: the actions of the prosecutor’s office could herald repressions against the judges of the Criminal Chamber – requests to lift their immunity, to press charges, question them…’

‘Offensive against the judges of the Supreme Court’?

Theoretically, the prosecutor’s office, supervised by Zbigniew Ziobro, could consider that transferring cases to the Criminal Chamber, and even their consideration, is a crime. ‘And there are few of us who have not heard such cases,’ they say in the Criminal Chamber. In such a case, President Laskowski and Małgorzata Gersdorf (now retired as a judge) could also have problems.

If the prosecutor’s office wanted to press charges against the judges, it would first have to obtain consent to hold them criminally liable. As it happens, the decision is made on this by the Disciplinary Chamber, which is ruling despite being suspended by the CJEU. According to the Disciplinary Chamber, it is ‘illegal’ for other chambers to take over its cases. It has been lifting the immunity of judges involved in defending the independence of the judiciary in recent months at the request of the Internal Affairs Department. There is no shortage of such judges in the Criminal Chamber either.

It can be heard in the Supreme Court that the activities of the prosecutor’s office have coincided with requests to lift the immunity of three judges of the Criminal Chamber that were announced a few days ago. The prosecutor’s office wants to prosecute them for the alleged ‘negligent failure to perform their duties’, because the Supreme Court failed to issue requests to release two people from prison. However, according to the position of the Supreme Court’s authorities, it was not the judges who were to blame, but the employees supporting the work of the chamber, who were held liable on disciplinary charges for this.

‘If these two pieces of information were to be put together, the conclusion can be drawn that a decision was made in the prosecutor’s office to start an offensive against the judges of the Supreme Court,’ says one of the judges. ‘We are constantly of the position that, after the resolution of the three chambers of the Supreme Court and the judgment of the CJEU on the Disciplinary Chamber, we did the right thing. No consequences will change that.’

Translated by Roman Wojtasz