PiS is changing the Act on courts for billions for the National Recovery Plan. But it could breach the Constitution and incite chaos
PiS is making concessions to the EC. It will pass the disciplining of judges over to the Supreme Administrative Court and restrict the Muzzle Act. But this is another ostentatious change, because it leaves the illegal National Council for Judiciary and the neo-judges who are the source of the problems with the rule of law. The administrative judges are protesting against the changes.
The article was first published in Polish in OKO.press on 14th December 2022.
PiS surprised everyone with its sudden charge into the Sejm regarding changes to the courts. A bill of a dozen or so pages on the changes to the Act on the Supreme Court, the Acts on the ordinary and military courts and the Act on the structure of administrative courts appeared on the Sejm’s website just before midnight on Tuesday 13 December.
The bill is signed by a group of Law and Justice (PiS) MPs so that it can be passed perhaps as early as this week without the consultations and assessments required for government bills. Kaczyński’s party is rushing to unblock billions of euros for Poland for the National Recovery Plan. PiS needs this money because the state budget is short of funds. PiS also wants to win next year’s parliamentary elections as a result of the billions from the EU.
The sudden bill on the amendments to the court laws is the result of an agreement with the European Commission to implement the CJEU rulings and achieve the milestones regarding the rule of law; which is a condition for unblocking the billions for the National Recovery Plan. Minister of the EU Szymon Szynkowski vel Sęk has been holding negotiations with the EC on this matter in recent weeks. Information appeared on Tuesday that the draft amendments to the Acts on the courts had been approved by the EC College of Commissioners. This is why the bill on the amendments was submitted to the Sejm on Tuesday night.
Minister of Justice Zbigniew Ziobro, the main perpetrator of the chaos in the courts and the PiS government’s dispute with the EU, did not take part in the negotiations. According to Onet, he might not support the bill in the Sejm, but PSL and possibly the Left party might vote in favour. The President is also expected to support the bill, although it turns the provisions of the presidential amendment to the Supreme Court Act of June 2022 upside down.
However, the bill does not solve any major problems with the rule of law in Poland and is just another prosthesis to guarantee PiS peace for a few months and is supposed to unblock billions for the National Recovery Plan.
Meanwhile, the problems with the rule of law will return because the main source of the problem – the illegal, politicized National Council of the Judiciary, which gives defective nominations to neo-judges, including neo-judges of the Supreme Court – has not been eliminated. While the questioning of their legality mainly applied to the judgments of the CJEU and the ECtHR, which the Polish government is not implementing.
There are also such neo-judges in the Supreme Administrative Court (30% of its judges), which is to take over the disciplining of judges.
Two illegally suspended judges, Piotr Gąciarek from the Regional Court in Warsaw and Maciej Ferk from the Regional Court in Kraków, have still not been reinstated. Meanwhile, another dozen or so independent judges are still facing such suspension. Their ‘guilt’ is that they applied EU law. Julia Przyłębska’s TK, with the PiS nominees and the defective stand-ins, is still adjudicating, while neo-judges are issuing defective judgments which can be contested. This is also what the ECtHR judgments applied to. The authorities are not implementing them.
And there is another serious problem.
PiS is planning to transfer disciplinary matters of judges to the Supreme Administrative Court. But this may be inconsistent with Articles 183 and 184 of the Constitution.
Because the Supreme Administrative Court does not have the jurisdiction to examine such cases, whereas, according to the Constitution, it is the Supreme Court that exercises supervision over the ordinary courts. Professor Włodzimierz Wróbel, a Supreme Court judge, and the board of the Polish Association of Administrative Courts mention the unconstitutionality of such a solution. Their positions are discussed at the end of the article.
Another problem. The Supreme Administrative Court works on administrative procedures. Meanwhile, disciplinary cases are handled according to separate provisions of the Criminal Procedures Code and the Act on Courts and the Supreme Court. The case law of the Supreme Court is also applied. There are concerns about whether the Supreme Administrative Court will properly apply criminal law, which it does not deal with on an everyday basis.
Supreme Administrative Court to be the court over all judges in Poland
The main idea behind PiS’s bill is to transfer disciplinary cases of ordinary court judges and Supreme Court judges to the Supreme Administrative Court. Cases of lifting the immunity of judges and consent for their detention will also go there. The Supreme Administrative Court will hear cases in both instances with regard to disciplining Supreme Court judges.
In the case of judges of the ordinary courts and military courts, disciplinary proceedings in the first instance are heard by the disciplinary courts at the courts of appeal. Whereas appeals are heard by the Supreme Administrative Court as the court of the second instance. The Supreme Administrative Court will only be the disciplinary court of both instances for these judges in cases of intentional criminal acts. The Supreme Administrative Court will also nominate the competent disciplinary court of the first instance for judges of regional courts and courts of appeal.
Previously, the old legal Supreme Court handled disciplinary matters of judges in the second instance. An illegal Disciplinary Chamber was established under the PiS government, which was staffed in whole by neo-judges. It was supposed to help PiS remove unruly judges and prosecutors from the profession. But the Chamber was liquidated in accordance with the CJEU judgment of 15 July 2021 because the Court declared it illegal. However, it was replaced in the summer of 2022 by the new Chamber of Professional Liability. However, the new Chamber will not disappear. It will continue to handle the disciplining of attorneys-at-law, legal counsels and prosecutors. It will also lift the immunity of the last of these.
PiS’s bill will also admit extensive testing of neo-judges for their independence and impartiality. This is already possible under President Andrzej Duda’s June 2022 amendment to the Acts on the courts of June 2022, but is subject to conditions. Such a test cannot be based exclusively on examining the circumstances of the appointment of a neo-judge by the neo-NCJ and examining how he behaved after the nomination. However, it must be demonstrated that it has an impact on the given case. Also, the test cannot be performed by the court ex officio, only at the request of the parties.
PiS’s bill removes these restrictions. Judges will be able to conduct the test ex officio. It will also be possible for a member of a multiple member bench to mention that such a test is needed. But note. PiS’s bill takes away the right for old, legal judges of the Supreme Court to perform tests of neo-judges of the Supreme Court. These matters are to be referred to the Supreme Administrative Court. This is how PiS wants to block the questioning of the legality of neo-judges of the Supreme Court, which is already taking place in the Supreme Court.
Requests for tests in the ordinary courts will be examined by a different bench, but appeals against such judgments will also be examined by the Supreme Administrative Court. And not the Supreme Court, as to date.
The introduction of tests of neo-judges ex officio is a requirement raised by the European Commission. This is permitted by the rulings of the European courts, including the famous ECtHR ruling in the case of Iceland, which, for the first time, established what the test should look like. Such a test was also approved by the Supreme Court in its historic resolution of the full bench in January 2020 and in the resolution of the 7 judges of the Criminal Chamber of the Supreme Court in June 2020.
Disciplinary cases, tests of neo-judges and lifting immunity will be examined by Supreme Administrative Court benches drawn by lot. The draw will be from among all judges of that court.
The Muzzle Act remains, but is relaxed
Another of PiS’s concessions is the relaxation of the Muzzle Act of 2020. This Act introduced penalties for judges for contesting the legality of neo-judges and their judgments, and for examining the legality of institutions appointed or staffed by PiS, including Przyłębska’s Constitutional Tribunal, the neo-NCJ and the Disciplinary Chamber. This was PiS’s response to the CJEU’s ruling in November 2019.
The Court then stated for the first time how the legality of the Disciplinary Chamber and the neo-NCJ should be examined. And Polish judges started to apply it. The first was Judge Paweł Juszczyszyn from Olsztyn, who was suspended for attempting to examine the legality of the neo-NCJ. Next, there was the ruling of the Supreme Court in December 2019 and the historic resolution of the Supreme Court in January 2020, which contested the status of the neo-NCJ, the Disciplinary Chamber and neo-judges.
PiS’s prohibition to test neo-judges was relaxed in the presidential amendment to the Acts on the courts of 2022. It now allows such a test of judges to be conducted ex officio. PiS’s bill now also abolishes disciplinary penalties for challenging the status of neo-judges and their rulings. It also abolishes penalization for contesting the status of the neo-NCJ, or Przyłębska’s Constitutional Tribunal.
Furthermore, judges will no longer be prosecuted for issuing judgments, or more precisely for their content. PiS’s bill does not consider this to be a disciplinary offence. Whereas independent judges are being investigated en masse for their rulings by Minister Ziobro’s disciplinary commissioners. They do not like their application of ECtHR and CJEU rulings, which undermine the status of neo-NCJ and neo-judges. Judges have also been suspended for this.
The objective of relaxing the Muzzle Act is to implement the CJEU’s interim measure of 14 July 2021. In that ruling, the Court suspended the Disciplinary Chamber and suspended the repressive provisions of the Muzzle Act. But PiS has so far not implemented this. That is why the CJEU imposed a fine on Poland of €1 million per day. And it has already grown to approximately €400 million, which is PLN 1.8 billion. PiS hopes the current amendment will put a stop to the penalties, which are continuously being deducted from the funds paid to Poland.
However, PiS is not consistent. This is because it is leaving the prohibition to contest the status of neo-judges and institutions it appointed and staffed with its people in the provisions of the muzzle laws. Why is it leaving them in there? As a back-up, perhaps they will come in handy? The only new thing is that this will no longer be a disciplinary offence. The Muzzle Act also introduces a new disciplinary offence – refusal to administer justice. And this is also a bludgeon for independent judges. Because contesting the status of neo-judges can be included in this. Legal judges do not only enforce the rulings of the CJEU and the ECtHR by subjecting neo-judges to tests of independence. They also refuse to adjudicate with them.
Judge Piotr Gąciarek from Warsaw was suspended for such a refusal. Three criminal judges from the Court of Appeal in Warsaw were also moved to the labour division as punishment for this. They are Marzanna Piekarska-Drążek, Ewa Gregajtys and Ewa Leszczyńska-Furtak. Thirty legal judges could also be removed from the Supreme Court for refusing to adjudicate with neo-judges. Neo-Judge Pawel Czubik of the Supreme Court is demanding this. He wants Małgorzata Manowska, the neo-judge in the position of First President of the Supreme Court, to apply to the President to extinguish the offices of these 30 judges. The matter is awaiting an opinion from the Office of Studies and Analyses of the Supreme Court, which is subordinated to Manowska.
The amendment made by PiS to the Acts on the courts may still be passed at the current session of the Sejm. It will then go to the Senate. It is to enter into force 14 days after its publication in the Journal of Laws. Under it, the Supreme Administrative Court will take over all unfinished cases from the new chamber of the Supreme Court. The Supreme Administrative Court is also to examine the legitimacy of the suspension of judges ex officio. All judges convicted by the illegal Disciplinary Chamber will also have three months to apply for the resumption of their cases before the disciplinary court of the Supreme Administrative Court.
PiS changes the name plate for the second time
The biggest surprise in PiS’s bill is the removal of the disciplinary cases of Supreme Court judges and their transfer to the Supreme Administrative Court. Why such a move? Judges’ disciplinary cases are sensitive. They applied precisely to the CJEU judgment of 15 July 2021, which undermined the disciplinary system of judges to date and the legality of the Disciplinary Chamber (including because neo-judges appointed by the illegal neo-NCJ were its members).
PiS has not fully implemented this ruling. Of course, it abolished the Disciplinary Chamber and set up the Chamber of Professional Liability in its place. But as many as 6 of the 11 members of the new Chamber are also neo-judges of the Supreme Court. Furthermore, the judges were appointed to the new Chamber by politicians – President Andrzej Duda and Prime Minister Mateusz Morawiecki. Therefore it is not an independent court.
In pulling out the disciplinary and immunity matters of judges from this Chamber, PiS is overtaking the declaration by the European Courts that it is illegal. But this is already happening, as the ECtHR is stopping the new Chamber with neo-judges from examining cases of judges.
However, the transfer of these cases to the Supreme Administrative Court does not solve the problem, but it is just another change of the name plate and the deprival of some citizens of their right to an independent court. Why? PiS is leaving the Chamber of Professional Liability, but only for the cases of attorneys-at-law, legal counsels, doctors and prosecutors. It is leaving the cases of these professional groups in this Chamber, because the CJEU judgment of 15 July 2021 only applied to disciplinary cases of judges. Therefore, PiS considers that, despite having the hallmarks of illegality, the new Chamber can still try other cases. As if prosecutors or doctors had no right to an independent and impartial court established by law. In other words, a court without neo-judges in its membership.
However, PiS is pushing the problem away by taking away the disciplinary cases of judges from this Chamber. Because all it would take is for someone to challenge Poland before the ECtHR for this, or for a brave judge to submit questions to the CJEU requesting a preliminary ruling on the matter. And then the Courts will have to say whether it is possible to divide citizens into better and worse citizens and whether the new Chamber is legal.
The simple solution is to transfer all disciplinary matters to the old, legal Criminal Chamber, where experienced judges with knowledge of criminal law adjudicate. This is what the accused judges have been demanding every time, first, before the Disciplinary Chamber and now before the new Chamber. But PiS will not do this, because it is afraid that the legal judges of the Supreme Court will acquit the judges. And therefore they will expose the groundlessness of the repression applied with respect to them.
PiS prefers to move the disciplinary cases of judges to the Supreme Administrative Court, which follows a different procedure and has no experience of applying criminal law or trying judges of the ordinary courts.
PiS is counting on the EC not having any objections to this court. Or perhaps it is also calculating. Because the judges of the Supreme Administrative Court have so far rather not been heavily involved in the defence of the rule of law. Although the Supreme Administrative Court has issued several high-profile rulings challenging Minister Ziobro’s ‘reforms’ in the courts. The Supreme Administrative Court referred preliminary questions on the legality of the neo-judges of the Supreme Court. And after the CJEU ruling, it challenged their legality. And recently, the Supreme Administrative Court issued a high-profile ruling contesting the legality of Julia Przyłębska’s Constitutional Tribunal.
However, PiS decided that this court would remain on the side-lines of the dispute over the shape of the justice administration and would have peace with disciplinary cases of judges. All the more so that neither the CJEU nor the ECtHR has so far issued a judgment questioning the legality of this court or the judges who are its members.