The President submitted his brief draft amendment to the Act on the Supreme Court to the Sejm on Thursday 18 February 2021. Several days earlier, it was announced that its intention is to help ordinary citizens, because it will extend the deadline for filing extraordinary complaints against old, unfair judgments with the Supreme Court.

But this is not the only objective of this amendment. Because the president simultaneously wants to smuggle in a provision enabling him to introduce his ‘commissioners’ into the old, legal chambers of the Supreme Court.

This mainly applies to the Civil Chamber and the Labour and Social Security Chamber. These two chambers are key, it is from them that the largest number of questions requiring preliminary rulings were sent to the EU Court of Justice regarding the rule of law in Poland and PiS’s ‘reforms’ of the justice system.

Furthermore, there are important lawsuits in the Labour Chamber on the establishment of whether the new Supreme Court judges are legitimate judges. The introduction of ‘commissioners’, namely acting presidents, to these chambers, if only for a short time, can help legalize the new judges appointed by the new, politicized NCJ.

There will be more of Duda’s ‘commissioners’ in the Supreme Court

Article 15, paragraph 4 of the bill submitted to the Sejm provides for the president’s power to appoint his ‘commissioners’ to the posts of presidents of the Supreme Court chambers.

It states that: ‘A Supreme Court judge to whom the President of the Republic of Poland has entrusted the performance of the duties of the President of the Supreme Court [the presidents of all Chambers have such a title – ed.] shall perform the duties and exercise the powers of the President of the Supreme Court specified in the Act. Article 13a, para. 1 shall apply accordingly to the delegation of the duties of the President of the Supreme Court’.

The commissioners, namely the people who are to introduce a new order in the Supreme Court, otherwise known as ‘acting presidents’, are to be appointed if no successor is elected by the end of the term of office of the current president of the Chamber.

The President appoints the president of the chamber from among three candidates nominated by the assembly of judges of the respective chamber of the Supreme Court.

The President is increasing his influence at the Supreme Court by awarding himself the right to appoint ‘commissioners’ to the Chambers as acting presidents for an interim period. So far, under the Act on the Supreme Court, which has been repeatedly amended by PiS, he could only appoint a ‘commissioner’ to the position of First President of the Supreme Court, who manages the work of the whole of the most important court in Poland.

And this is what happened in 2020. The General Assembly of Supreme Court Judges had not been convened to elect candidates to the office of the new president up to the end of President Małgorzata Gersdorf’s term of office. President Gersdorf was concerned about the coronavirus epidemic. In this situation, when her term of office expired, the President appointed Kamil Zaradkiewicz as commissioner. And, after his resignation, Aleksander Stępkowski, one of the founders of Ordo Iuris.

Both are new Supreme Court judges, elected by the new National Council of Judiciary. It was they who, disregarding the voices and motions of the old judges of the Supreme Court, pushed for the election of candidates from among whom the President chose Małgorzata Manowska, a former deputy to Zbigniew Ziobro, the Minister of Justice, as President of the Supreme Court.

The new First President was elected in line with the intentions of the ruling party, which designed the regulations so as to have control over the Supreme Court.

What the new ‘commissioners’ can do in the Supreme Court

The proposal to add Article 15, paragraph 4 to the Act on the Supreme Court, which would also allow the president to appoint ‘commissioners’ to the chambers of the Supreme Court, has not appeared now by chance.

This is because the terms of office of the chairman of the Civil Chamber, Dariusz Zawistowski (former chairman of the old NCJ) and the president of the Labour and Social Security Chamber, Józef Iwulski, are due to expire in August 2021.

People who are familiar with the work of the Supreme Court say that, if it were to be assumed that the president is demonstrating good will, it could be concluded that he wants to protect the work of both Chambers if new presidents could not be elected by that time.

But knowing how the current government works, it can also be suspected that the objective of introducing the institution of new ‘commissioners’ is that they are to do the so-called dirty work in the Chambers. Just like Zaradkiewicz and Stępkowski did when clearing the area for the new president, Małgorzata Manowska.

‘After all, there have been no problems with the election of presidents of the Chambers to date. Even though there were no regulations governing who heads the Chamber during the transition period,’ a person familiar with the work of the Supreme Court told us.

Lawyers are concerned that the president’s new ‘commissioners’ may help legitimize the new Supreme Court judges chosen by the new NCJ. Such judges were mainly elected to the two new chambers of the Supreme Court established by PiS, namely the illegal chambers – the Disciplinary Chamber and the Chamber of Extraordinary Control and Public Affairs. But there are also some in the other, old legal chambers of the Supreme Court, namely the Criminal Chamber, the Civil Chamber and the Chamber of Labour and Public Affairs.

The point is that the ‘commissioners’ can pass matters regarding the status of the new Supreme Court judges to the Chambers appointed by PiS. The old Chambers do not pass them on because of allegations about the legality of the new judges, especially those from the Disciplinary Chamber.

This mainly applies to motions of the parties to remove new judges from the benches. The Civil Chamber considers them on its own.

16 important actions

However, the concerns of the lawyers apply to the fate of 16 important and precedent-setting actions against the new Supreme Court judges. They were filed by independent judges known for defending free courts, mainly from Iustitia Association of Judges. Such as Krystian Markiewicz, head of Iustitia, Bartłomiej Starosta, Paweł Juszczyszyn, and  Monika Frąckowiak from Poznań, who was the first to file such actions. They want the Supreme Court to establish whether the new judges are judges.

Judge Waldemar Żurek, former press officer for the old, legal NCJ, filed the same action. He sued Kamil Zaradkiewicz while he was a commissioner of the Supreme Court. And he quickly felt reprisals, because Ziobro’s disciplinary commissioner rapidly initiated disciplinary proceedings against him.

Will the ‘commissioner’ withdraw the case regarding the status of new judges from the CJEU

The lawsuits of the independent judges have reached the Chamber of Labour and Social Security. They have not yet been considered, because the benches have submitted questions for preliminary rulings to the CJEU on their basis. The questions are about whether the Supreme Court itself can assess the legality of the appointment of new judges to the Supreme Court.

However, lawyers are concerned that the ‘commissioner’ in the Labour Chamber may attempt to block the consideration of these cases in the CJEU. How? By transferring them to the Disciplinary Chamber or to the Chamber of Extraordinary Control and Public Affairs. And once they are transferred, they would be passed to new benches consisting of new judges, and these judges would be able to withdraw the preliminary questions from the CJEU. And end the dispute over their legality in this way.

Such an option of losing these precedent-setting actions is realistic.

Because there has already been an attempt to take them out of the Labour Chamber. When Kamil Zaradkiewicz was commissioner at the Supreme Court, he wanted to help the Disciplinary Chamber take over these cases. But he encountered the refusal of president of the Labour Chamber, Stanislaw Iwulski.

Although Zaradkiewicz was briefly a temporary president, he nevertheless showed that cases that are particularly close to the hearts of the new judges can be dealt with quickly.  He decommunized the gallery of the presidents of the Supreme Court by removing portraits of presidents from the communist period from the wall. He also unfroze the work of the Disciplinary Chamber, which was suspended by President Gersdorf in the implementation of the CJEU’s ruling of 2020.

Will the president’s regulation enable the introduction of a ‘commissioner’ into the Labour Chamber earlier

Whether President Duda’s new ‘commissioner’ will take the opportunity to neutralize the precedent-setting lawsuits depends on the Sejm, which enacts the laws, as well as the CJEU itself.

A hearing on this matter has already taken place at the CJEU. However, it is expected that the opinion of the CJEU’s Advocate General will be issued in April 2021 and the ruling will be issued up to two months later. If it is issued before the summer holidays, it will happen during the term of office of the current president of the Labour Chamber.

It will be worse if the ruling is postponed. Because there are also concerns that the new Article 15, paragraph 4 of the amendment to the Act on the Supreme Court will be used to accelerate the introduction of the ‘commissioner’ into the Labour Chamber even before the ruling of the CJEU.

This is because the Institute of National Remembrance wants to lift Judge Józef Iwulski’s immunity to press charges against him for his part in sentencing a worker who distributed anti-communist leaflets to imprisonment in 1982.

The allegations are political and for show, because Judge Iwulski has been heavily involved in defending the independence of the courts and, in particular, was strongly defending the Supreme Court against PiS’s attempt to take it over. The current government also wants his immunity lifted for propaganda reasons, to show that its ‘reforms’ in the courts are, among other things, intended to decommunize them.

The Disciplinary Chamber met in January 2021 in this case, but adjourned the hearing indefinitely because it has requested the files from the Institute of National Remembrance. It will set a date for the hearing when it receives them.

If the Disciplinary Chamber lifts Judge Iwulski’s immunity, it can simultaneously suspend him from his judicial duties. Would that also mean removing him from his position as president of the Chamber and would it enable a ‘commissioner’ to be introduced into the Chamber?

‘The suspension can only have an effect in the area of adjudication by the judge and does not affect the performance of his duties of president. I have no idea whether this will enable a commissioner to be introduced, but I don’t think so,’ a prominent Warsaw lawyer tells us,

He adds that the president’s proposed new Article 15, paragraph 4 provides that the already existing Article 13a, paragraph 1 of the Act on the Supreme Court, which in turn provides that the president can appoint a ‘commissioner’ to the office of first president of the Supreme Court if a new president is not elected on time applies to the appointment of ‘commissioners’ in the Chambers.

The CJEU can block the withdrawal of questions for preliminary rulings

Even if a new ‘commissioner’ in the Labour Chamber aims to quash the precedent-setting lawsuits and questions for preliminary rulings to the CJEU, this does not mean that the CJEU’s ruling will be blocked.

If the questions for preliminary rulings are withdrawn by judges from the new Chambers that PiS has established, the CJEU will ask the benches from the Labour Chamber that asked them for their position. And then it will decide whether the withdrawal of the questions is effective.

Because the right of judges to ask questions for preliminary rulings is protected in the EU. And it is considered that only the judges who asked them can withdraw them. This protection is in place so that judges are not put under pressure.

This is confirmed by Dr Maciej Taborowski from the office of the Commissioner for Human Rights. He emphasizes that there is already a question for a preliminary ruling in the CJEU regarding precisely the situation in which attempts are made to withdraw such questions for judges.

However, the authorities can use the withdrawal of the questions as propaganda to say that the CJEU is breaching Polish law – because PiS passed an Act stipulating that cases regarding the status of judges are to be heard by the new judges in the Supreme Court – and that the CJEU ruling regarding the status of new judges is not binding on them.

The new judges of the Supreme Court may also behave in this way, because one bench of the illegal Disciplinary Chamber has already issued a judgment challenging the 2019 CJEU ruling regarding the Disciplinary Chamber.

Who will President Duda finally appoint as the new presidents of the Labour Chamber and the Civil Chamber of the Supreme Court? The names should be known in late August/early September 2021.

The chances are that one of the ‘old’, legal judges will be appointed in the Labour Chamber, as there is only one new judge there to date.

The situation is more complicated in the Civil Chamber, as there are seven new judges, including Małgorzata Manowska, president of the Supreme Court, and Kamil Zaradkiewicz.

Translated by Roman Wojtasz

The text was posted in Polish at OKO.press on 19 February 2021.