Oral justification of the Supreme Court judgment in connection with the CJEU ruling regarding the Disciplinary Chamber and the National Council of the Judiciary
Thanks to the Association of Judges “Themis”, we publish the translation of oral justification of the Supreme Court judgment of 5 December 2019 in case in which it requested the Court of Justice for preliminary ruling of 19 November 2019
The independence of the courts and the impartiality of the judges constitute the fundamental right to a fair trial. This is the inviolable essence of this right and, after all, it is one of the general principles of European Union law. It can be said that this is a fundamental right of the European Union. Therefore, the Supreme Court will refer first and primarily to these principles later in the oral motives.
As we are all aware, the principles of law are universal, timeless rules. They arise from constitutional traditions which are common to the Member States and the international agreements that are binding on them. When it comes to the principles of law, namely norms that are hierarchically higher than others, they take priority because of their position in the system of sources of law. Every interpreter cannot exclusively decode a norm by referring to the wording of the act, for example the Act on the Supreme Court or the Act on the National Council of the Judiciary. If we see a discrepancy, a dissonance between the content of laws and the principle of the law, those adjudicating in the case of courts are required to verify whether, by establishing a specific law, the ordinary lawmakers observed the standards arising from the principles I have just mentioned.
The Supreme Court points out that, in the recent past, the status of a court of a Member State was not examined under EU law for compliance with the features and conditions required by EU standards. However, certain factual and legal circumstances, the sources of which were the changes initiated in the Polish justice system, among other things in combination with the initiation of the procedure of breaching the rule of law, the activities of the Venice Commission and the European Commission, resulting in the latter case in complaints to the Court of Justice of the European Union and the rulings of that Court – these doubts obliged the Supreme Court, as the court of the last instance of a Member State, to request a preliminary ruling, which – as we know – took place on 30 August of last year.
The Supreme Court emphasises that since every European country has voluntarily acceded to the European Union; this means that it accepts the common values and undertakes to abide by them. Therefore, a national court, and the Supreme Court is even obliged to check whether the dispute resolution mechanism formed by the national lawmakers is in line with European Union law. After all, this law, the law of the European Union, is an inherent part of the legal order in force in Poland.
As we are aware, the request for the preliminary ruling of 30 August of last year aimed to clarify doubts as to the interpretation of EU law. The task of the Court of Justice is to resolve these doubts and possibly to set a standard if such a Court considers this appropriate. Therefore, the task of the Court of Justice in Luxembourg was not to make the decision in this case for the Supreme Court – specifically, whether the authority of the Member State, in this case the Disciplinary Chamber of the Supreme Court, is a court. While the national court referring the request settles the individual case in line with the guidelines contained in the Court’s ruling, the interpretation of European Union law by that Court is binding on all Member States, not only Poland. It is binding on all courts, not just the Polish court submitting the request. Finally, it binds all bodies and not just the courts. In turn, this means that the consequence of the ruling of the Court of Justice in Luxembourg of 19 November 2019 is the distributed control of satisfying the requirements set out in that ruling regarding the right to an independent, impartial trial. Such control is conducted in various procedures by the national courts, because, after all, it is the national courts that are responsible for ensuring compliance with the EU standard regarding independence and impartiality in every case being examined.
Please note that the mere refusal of the Court of Justice to respond, having joined – as we are all aware – three cases for a joint hearing, the refusal to respond to the questions contained in case III PO 7/18 has no impact on the Supreme Court being bound in this case by the interpretation of European Union law made in the ruling of 19 November. In this case, the Supreme Court is bound by a binding interpretation of the Court of Justice, just like any other court and any other court in another Member State.
Three main issues arise from the ruling of the Court of Justice about which are talking.
First, the national court is authorised to assess whether it is to consider the case or even whether it is to be considered by an authority that is a court that is independent and impartial of the executive and legislative authorities in the meaning of European Union law.
Second, when making that assessment, the national court has to take into account whether another body, the objective and statutory jurisdiction of which is to safeguard the independence of the courts and the impartiality of the judges, took part in the formation of that body, which is referred to as a ‘court’ under national law. Two more supporting criteria need to be considered to make this assessment. One being objective, namely whether there are verifiable facts giving rise to doubts as to the lack of independence of that body. The other being subjective, namely how the people who are members of that body actually behave, what their individual statements, acts or omissions are.
Third, it arises from the judgment of the Court of Justice of the European Union that, when making this assessment, the outcome of the procedure is not about the validity of the act of nomination which the President handed to these people, but whether we are dealing with an independent and impartial court.
However, please note as a side-line issue, that it was in the practice of the Constitutional Tribunal itself that the judges were discretionally removed from adjudication. Therefore, this is not an institution that suddenly appeared in the legal space, out of nowhere, in the practice of the ordinary courts or the Supreme Court.
The Supreme Court reiterates that this case is an EU matter. This arises directly from the content of the appeal filed in this case by the judge of the Supreme Administrative Court, because, in the content of his appeal, he referred to the respective provisions of European Union law, also demanding the assessment of the standard from the point of view of the European Convention on Human Rights, as well as Article 45 of the Constitution. We would simultaneously like to point out that, if there is a decision of the Constitutional Tribunal in the national order which specifies a particular model for forming the National Council of the Judiciary as being in line with the constitution, this does not release the Supreme Court from further examination as to whether this model complies with EU law or the Convention.
This is explained directly by the Cordero-Alonso rule. According to that rule, judgments of a national constitutional court declaring that some solution is compatible with the constitution cannot be an obstacle for the Supreme Court to ensure that European Union law is respected in the national legal order when these solutions do not comply with it.
Therefore, the decision of the Constitutional Tribunal stating that the current model of members of the NCJ is in compliance with the constitution act is irrelevant from the point of view of the decision in question. Even so, regardless of these doubts about, for example, the membership of the current Constitutional Tribunal, please note that, in 2007, this body emphasised that the National Council of the Judiciary, like no other constitutional body of the state, has been established to safeguard the independence of the courts and the impartiality of the judges. Therefore, in the interest of the independence of the Council itself, the constitutional objective is that the judges elected to its membership are not associated in any way with the legislative and executive authorities. Please note that this ruling from 2007 – case reference K 25/07 – ensures that the constitutional standard is in compliance with the EU standards.
The ruling of the CJEU of 19 November of this year setting the standard encompasses the comprehensive assessment of guaranteeing the right to an independent and impartial trial. This assessment consists of a two-stage rule. First – the assessment of the level of impartiality and independence of the National Council of the Judiciary from the legislative and executive authorities in the performance of its statutory tasks. Second – the circumstances in which the members of such a body as the Disciplinary Chamber were appointed and what the role of the National Council of the Judiciary was. Of these two rules, reference should first be made to the circumstances related to the formation of the National Council of the Judiciary.
Firstly – the National Council with its new membership was established by shortening the four-year term of office of this body’s members.
Secondly – fifteen members of the National Council, previously elected by the judiciary, are currently designated by the legislative authority. Such a change results in an increase in the number of members of the Council appointed by the legislative and executive authorities, as they actually currently elect 23 of the 25 members of the National Council of the Judiciary.
The second circumstance, which is extensively addressed in the mass media, is the matter of the lists of support. They have not yet been publicised, despite the judgment of the Supreme Administrative Court. There is no way of checking whether support was given by judges adjudicating in courts or by judges seconded to the Ministry of Justice and therefore, in some way being dependent on the executive authority.
Furthermore, as transpires from the reports in the media, one of the members of the National Council disclosed that he supported himself. This is surprising because, in the position of the Council itself, albeit issued later, but from September 2018, it was stated that the participation of a judge applying for promotion rules him out of voting by the bodies that are considering his candidacy. This could reveal a certain discrepancy between the standard of applying for membership in the Council and obtaining the status of a judge of a senior court.
The mechanism of nominating candidates gives rise to further doubts, for example judges to the National Council of the Judiciary were recommended by presidents of the district courts, who were obviously appointed by the Minister of Justice. Judges were nominated to the National Council by judges who are dependent on the candidate, namely, for example, in the court in which the candidate held a managerial post. Judges to the National Council were entered by, among others, a representative of the justice institute at the Ministry of Justice. Judges were finally nominated by relatives, the candidate himself proposed another candidate and members of the future National Council had previously worked in the Ministry of Justice.
The fourth element is an important assessment of how an authority such as the National Council performs its constitutional tasks of safeguarding the independence of the courts and the impartiality of the judges and how it exercises its individual powers and, in particular, whether it does so in a way that can cast doubt over its independence of the legislative and executive authorities from the point of view of individual rights.
In this respect, the Supreme Court took into account the following circumstances: for almost 2 years, the National Council has not taken any stances or passed any resolutions, objecting to the attacks on individual judges, for example those affected by disciplinary repression for judicial decisions. The Council has not taken a positive stance with respect to the unlawfully retired judges of the Supreme Court and the Supreme Administrative Court. This was confirmed by the judgment of the Court of Justice in Luxembourg in case C-619/18. I would like to remind you that there was a similar position of the Council regarding the matter of who holds the position of the First President of the Supreme Court. There were also no votes supporting the first president that she is still holding her position.
In addition, with regard to the requests referred by the Supreme Court for a preliminary ruling, the members of the Council demanded that disciplinary proceedings be instituted with respect to the judges who made such requests. Please also note that the judge-members of the National Council of the Judiciary are the beneficiaries of the changes in the justice administration introduced by the legislative and executive authorities. Among other things, they were seconded to higher courts, some of them hold the posts of presidents and vice presidents in the courts in which the authorities of these courts were previously dismissed ad hoc. All this indicates a dependence of this Council on the executive authority because of the extent of the minister’s interference in the activities of the courts.
Fifthly, the Supreme Court took into account the fact that the negative premise of impartiality and independence of the executive and legislative authorities can also be seen in the activities of the Council, as well as in the assessments of the Council’s activities made by external entities, for example the resolutions of the Supreme Bar Council of the National Chamber of Legal Counsels and resolutions of law faculty councils from, as it would seem, most universities in Poland, resolutions of the federation of European bar associations, general assemblies of ordinary court judges, as well as opinion of the Venice Commission of December 2017 and circumstances related to the suspension of the National Council from the work of the European Network of Councils for the Judiciary.
In making this summary assessment of the circumstances referred to a moment ago, the Supreme Court holds that the National Council of the Judiciary does not give a sufficient guarantee of independence of the legislative and executive authorities. This conclusion is the starting point for assessing whether the Disciplinary Chamber of the Supreme Court is an impartial and independent court in the meaning of Article 47 of the Charter of Fundamental Rights and Article 6 of the Convention and therefore whether it can be a court in the meaning of national law. In this respect, attention should be drawn to the following circumstances.
Firstly – the new unit has been awarded exclusive jurisdiction in further adjudication in the cases of judges of the Supreme Court and the Supreme Administrative Court, which were examined to date by the Labour and Social Insurance Chamber, previously also the Public Affairs Chamber. It should be noted on the side-line that, in employee matters, this change actually deprived judges of the right to two-instance court proceedings. This type of case was considered to date by the ordinary courts, whereas now, the remedy against a decision is filed with a different panel from the same chamber. This is as if it were a horizontal appeal, so people adjudicating in the same chamber evaluate each other’s decisions.
Secondly – only members of the Disciplinary Chamber can assess which of the judges of the Supreme Court and the Supreme Administrative Court will be able to remain in active service at their own discretion.
Thirdly – only new judges chosen by the National Council are able to join the Disciplinary Chamber. None of the judges of the Supreme Court to date could be a member of this panel. This means that only the judges appointed by the new Council will decide on the fate of the judges to date.
Fourthly – it can be seen that people who are strongly associated with the legislative or executive authorities have been elected to this new chamber, and this type of circumstance can give rise to objective doubts among individuals regarding the obligation to form the right to an independent and impartial trial.
It should also be remembered that this chamber has been guaranteed extensive autonomy and a special status as an exceptional court, which can actually only be formed in wartime, which directly arises from the provisions of the constitution. This process has been extensively described in the legal literature. I would like to draw your attention here to the article by Mr. Włodzimierz Wróbel, published in “Palestra” 2019 issue 1. But it was also mentioned in the line of judgments – I will refer here to the judgment in case II PO 3/19.
Each of these circumstances, which have been mentioned so far, assessed on their own, do not, of course, determine that the standard of Article 47 of the Charter of Fundamental Rights has not been observed. However, when all the circumstances are taken together – namely, the creation of a new organisational unit in the Supreme Court from scratch, filling this unit with only new people, staffing by the National Council not acting independently of the legislative and executive authorities and a Chamber with extensive autonomy and powers taken away from other courts and other chambers of the Supreme Court, staffed by judges elected by the dependent National Council, an unambiguous consequence clearly arises from all these circumstances – the Disciplinary Chamber of the Supreme Court is not a court in the meaning of Article 47 of the Charter of Fundamental Rights and Article 6 of the Convention, as well as in the meaning of national law.
The Court of Justice also clearly explained in its ruling what the effects will be when a national court considering a case after receiving responses to questions comes to such conclusions as were contained in the decision of the Supreme Court. In other words, the national court is required to refuse to apply national provisions which reserve jurisdiction for the competent authority on matters in which the main proceedings are pending. Let us remember that primary European Union law takes precedence over national law. In the realities of this case, this means that the Labour and Social Insurance Chamber is bypassing the provisions regarding the Disciplinary Chamber of the Supreme Court, and therefore repealing the resolution of the Council, because it is not a body that is independent of the legislative and executive authorities.
The Supreme Court also considers that the examination of the appeal of the Supreme Administrative Court judge is not pointless, because the resolution of the authority, which, nota bene, is referred to as an opinion, and which is disadvantageous for the judge, remains in legal circulation. There was an entitlement to appeal against this resolution because in individual matters the Council can only pass resolutions, while the opinion applied to the appellant’s legal situation. He has a legal interest in demanding that this resolution be repealed, because the Act restoring Supreme Court judges and Supreme Administrative Court judges to active service is based on a certain legal fiction that they were in active service all the time. Meanwhile, the effect of the judgment of the Court of Justice in case C-619/18 was that these judges had never stopped being in service because of their age and the regulations arising from national acts of law. This subtle difference should be noticed and reserved in the decision that has just been announced.
I would finally like to point out that, of course, the Supreme Court does not negate and does not have the right to negate the right of the lawmakers to make changes in the structure of the justice administration, including the structure of the Supreme Court; it can rebuild the model of disciplinary proceedings or adjudication on the rights and obligations of judges in the decisions on their retirement. It is the lawmakers who specify the objective and means necessary for achieving it, whereby the objective of the lawmakers is not subject to the court’s assessment.
However, it must be most emphatically highlighted that the means used for this are assessable, so that they guarantee the party the right to an independent and impartial trial in every case. These measures are also assessed from the point of view of European Union law, not just national law. It arises from the assessment in this case that, despite the announcements – as they were attached to the justification of new acts of law, such as the justification of the bill – it transpired that the intention of the lawmakers is to raise the standard. Of course, this is the right objective, but did the means used to achieve it ensure that this objective was achieved? If we consider all the circumstances that have been raised, according to the panel of the Supreme Court hearing the case, this was not so.
The independence of the courts and the impartiality of the judges is the same for citizens as freedom of speech is for journalists. The statutory guarantees of a democratic state governed by the rule of law will not be preserved without guaranteeing actual independence of the courts and impartiality of judges. A judge deprived of this attribute cannot correctly resolve conflicts and serve to maintain public peace. The judgments of such a judge, even despite their objective correctness, will not be accepted by the parties to a dispute or the public. This was pointed out by the Constitutional Tribunal in its judgment of 1993.
There is also doubt as to whether the scope of this decision applies to all judges and whether it does not apply to other people who administer justice, and assessors should also be included among such people. This situation should be noticed. It should be remembered that the failure to assure the EU standard is becoming a kind of trap for parties to proceedings, who can, as a result, suffer the negative consequences of the legislative action, while this effect should obviously be avoided.
We are also bearing one more circumstance in mind. We remember that the Disciplinary Chamber issued a resolution in its full panel on 10 April of this year, giving it the strength of a legal principle that stands in opposition to the content of today’s decision of the Supreme Court. In this respect, the Supreme Court would like to emphasise that this resolution was passed, firstly, on the basis of the provisions of the Criminal Procedures Code, and the court is considering this case on the basis of the provisions of the Civil Procedures Code. Secondly – the resolution of the Disciplinary Chamber assessed the national standard and in no way conflicts with the EU standard, which was mentioned in the oral motives of the decision. Thirdly – perhaps the most obvious – it seems that nobody is a judge in their own case.
This judgment and justification, which you have heard, will probably initiate a line of judgments that will take place in the Supreme Court, because this is not the only case in the light of controversy related to the EU standard. So, we are starting such a line. It is currently difficult to predict how this line of judgments will develop.