This is a sudden action by PiS party regarding the illegal Disciplinary Chamber operating at the Supreme Court. A group of PiS MPs, led by Marek Ast, submitted a short – as, together with it justification, it is only 6 pages long – bill on Friday 11 February 2022.

They are promoting it as the implementation of the CJEU judgment of 15 July 2021, which challenged the legality of the Disciplinary Chamber and its members. The Chamber should have been liquidated, but it is still working.

PiS has no intention of liquidating it. It only wants to take away the disciplinary cases of judges and the cases for lifting the immunity of judges for criminal matters from it. The cases of the judges would be heard in both instances by legal Supreme Court judges, neo-judges – including from the Disciplinary Chamber – and lay judges selected by lots. The illegal Chamber would continue to hear disciplinary cases of prosecutors, attorneys-at-law, legal counsels, and notaries public.

PiS’s bill is a response to President Andrzej Duda’s bill on the Supreme Court. He submitted it to the Sejm a week ago. But the President’s bill is extensive and a long time was spend on its preparation.

Neo-judges from the Supreme Court were consulted on it. Meanwhile, PiS’s bill was written in a hurry. It contains mistakes. Similarly, it does not contain the necessary amendments to other acts of law, which, after all, the proposers themselves admit. That is why it is a special bill, and the so-called cleaning bills, i.e. bills adjusting other acts of law to the new regulations, are only to be proposed later.

But, just like the President’s bill, the bill submitted by the PiS MPs does not solve the problem of the rule of law. This is because it does not address the problem of neo-judges and the politicized National Council of the Judiciary, the legality of which has been contested by the judgments of the European Court of Human Rights and the Court of Justice of the EU.

Additionally, the bill fails to implement the CJEU’s interim measures of 14 July 2021. The CJEU suspended both the Disciplinary Chamber itself and the provisions of the Muzzle Act, which allows judges to be punished for investigating the status of neo-judges. And the CJEU has fined Poland 1 million euros per day for not enforcing this interim measure. This has now grown to 100 million euros.

PiS may process its bill and the President’s bill at the Sejm’s session on 23 and 24 February.

How PiS wants to implement the CJEU ruling 

PiS’s bill bears the name ‘On the protection of judicial independence and the detailed principles of criminal and disciplinary liability of judges.’ This appears to be no accident, as if PiS wanted to hide the fact that it is implementing the CJEU judgment.

This is how disciplinary cases and cases regarding the immunity of judges are to be moved away from the Disciplinary Chamber (this applies to ongoing and new cases), while the Chamber is to continue to examine the remaining cases.

Only the Supreme Court is to consider cases of military judges, ordinary court judges and Supreme Court judges. This is new, because in principle the disciplinary courts at the courts of appeal currently constitute the first instance for disciplinary cases. This means that they are to be liquidated.

The PiS MPs want the panel to be drawn by lots each time from among the legal Supreme Court judges and neo-judges of the Supreme Court from all chambers, including… the illegal Disciplinary Chamber. A panel of three judges, including one lay judge, is to rule in the first instance. Only one judge may be drawn from any chamber. In the second instance, the panel would be made up of seven people, including two lay judges. A maximum of two judges from any chamber may be drawn in the case of such panels. Disciplinary cases of administrative judges would be handled by the Supreme Administrative Court.

However, PiS’s bill would not give the right automatic reinstatement of judges suspended to date by the illegal Disciplinary Chamber. This is one of the European Commission’s conditions. The bill contains a proposition of a provision that would discontinue disciplinary cases and cases of lifting immunity brought by Ziobro’s people in connection with rulings made by judges. But only after a very general condition has been satisfied.

This condition is contained in Article 2 of the bill, which reads: ‘A judge may not be held liable on criminal or disciplinary charges for an act involving issuing a ruling of a particular content, unless the ruling is issued as a result of serious and completely inexcusable conduct on the part of the judge involving in particular acting deliberately in bad faith or with exceptionally serious and gross negligence and violating the provisions of national and European Union law, with which it is supposed to comply, the arbitrary shuffling of judgments or the refusal to administer justice.’

This provision is a bagful of opportunities to continue to prosecute independent judges for their judgments. Especially judges implementing the ECtHR’s and CJEU’s judgments. Firstly, the provision is drafted as if it were written by a layman and not a lawyer. After all, what does ‘inexcusable conduct’, ‘bad faith’ or ‘arbitrary shuffling of judgments’ mean? Secondly, the PiS MPs assume that judges would be unable to refuse to adjudicate with neo-judges. Whereas, this is how judges are implementing the rulings of the CJEU and the ECtHR. The president’s bill also assumes such liability.

Thirdly, Article 2 of the bill refers to the ‘violation’ of national and EU law. Meanwhile, the Muzzle Act, which was suspended by the CJEU in the 14 July 2021 interim measure, is national law. Neither PiS’s nor the President’s bill envisages the amendment of the Muzzle Act.

In other words, the judges who are currently suspended – there are six of them and there may be more – would not be guaranteed the right to return to adjudication. They would be at the mercy of randomly selected panels. The president’s bill proposes a similar solution.

Does the PiS bill implement the CJEU ruling

In the justification to the bill, the PiS MPs wrote that it implements the CJEU judgment of 15 July 2021. In their opinion, the CJEU only contested the Chamber’s examination of disciplinary cases of judges. That is why they are not liquidating it.

The President’s bill differs from the bill of the PiS MPs mainly in that it assumes the liquidation of the whole of the Disciplinary Chamber and the transfer of its 11 members to other chambers of the Supreme Court (or their retirement). All cases are to be taken over by a new Professional Liability Chamber. Its membership would also be drawn by lots. In the first stage, 33 people would be drawn (from among the legal judges of the Supreme Court and the neo-judges). The President would appoint the members of the new chamber from among this group.

But neither PiS’s nor the President’s bills fully implement the CJEU ruling, but purely create the semblance of its implementation.

This is because the Court of Justice of the EU not only contested the legality of the Chamber itself, but also the legality of the people who are its members, as they are defectively appointed by the neo-NCJ. The legality of the neo-judges of the Supreme Court and neo-NCJ has also been directly undermined in other judgments of the CJEU and ECtHR. And as long as they continue to adjudicate and the neo-KRS continues to issue defective nominations, the problem of the rule of law will not be resolved.

Nor can PiS say that the Chamber can stay and examine the remaining cases. Because, in its judgment, the CJEU contested the whole structure of the Chamber and the legality of the people who are its members. Since they cannot judge judges, they cannot judge prosecutors, attorneys-at-law or legal counsels either. Because just like judges, they have the right to a trial by an independent and impartial court. And finally, PiS’s and the President’s bill do not implement the CJEU’s interim measure of 14 July 2021.

PiS now wants to simultaneously process its bill with the President’s bill. It is unclear what will come of this, as the President’s bill does not have Ziobro’s support or that of his party, Solidary Poland. It is also unclear whether Ziobro will support PiS’s bill, as he himself had plans to completely liquidate independent courts – including the Supreme Court – and establish courts that are subordinated to the authorities in their place. Jarosław Kaczyński supported him in this.

Or perhaps PiS will shelve the plans for the time being to unblock the eurofunds so as to return to these plans later? In turn, the President’s bill does not stand a chance without the support of the opposition parties. The opposition parties are not saying ‘no’, but they have submitted their own bill to restore the rule of law, which was prepared by Iustitia. Only this bill fully implements all the rulings of the CJEU and ECtHR. However, the Marshal of the Sejm, Elżbieta Witek from PiS may keep it in the so-called Sejm’s freezer.

Markiewicz and Wawrykiewicz criticize the PiS bill

According to the president of the association of judges, Iustitia, Professor Krystian Markiewicz, and attorney-at-law Michał Wawrykiewicz of the Free Courts initiative, neither PiS’s nor the President’s bills implement the CJEU rulings of July 2021. Counsellor Wawrykiewicz says the following about the PiS bill: ‘It is difficult to believe that this is an official bill. It is legislative junk written in a hurry. It is full of mistakes and typographical errors. I don’t think anyone read it before submitting it to the Sejm,’ Wawrykiewicz tells us.

He explains how the amazing Article 2 on punishing judges for ‘inexcusable conduct’ or ‘shuffling of judgments’ came to be in PiS’s bill.

He says the authors of the bill simply copied a passage from one of the points in the CJEU judgment of 15 July. However, they took it out of context.

In that point of the judgment, the CJEU held that there are situations in which a judge may be held liable on disciplinary charges for issuing a decision. But this is only a small part of the extensive judgment. And it only applies to situations where a judge has grossly breached the law. But it is not about judges implementing judgments of the ECtHR and the CJEU.

‘The Act must be written in legislative language, and not thoughtlessly contain fragments of a judgment taken out of context and pasted in. In this way, PiS wants to show that it has implemented the judgment, but the drafting of this Article 2 sticks out like a sore thumb,’ Wawrykiewicz tells OKO.press. He adds: ‘A part of the CJEU judgment was used manipulatively.’

The head of Iustitia, Professor Krystian Markiewicz also criticizes PiS’s bill. ‘This bill is similar to the President’s bill. It does not contribute anything that restores the rule of law and ensures the right to an independent and impartial court in disciplinary proceedings,’ Professor Markiewicz tells OKO.press. He emphasizes that neo-judges are being left in the Supreme Court and the neo-KRS is to remain. He warns that, in time, only neo-judges will remain in the Supreme Court, and only they will handle all disciplinary cases. ‘I hope the EC does not fall for such trickery,’ says Professor Markiewicz.

Translated by Roman Wojtasz

The article was published in Polish at OKO.press.