On Thursday 27 October 2022, at 4 pm, President Andrzej Duda will appoint Wiesław Kozielewicz as president of the new Chamber of Professional Liability. He is a legal judge of the Supreme Court from the Criminal Chamber. His nomination gives the President a guarantee that the Chamber will not be hard on independent judges.

What about the National Recovery Plan?

But this will not end the dispute with the EU and it will not unlock billions of euros for Poland from the National Recovery Plan, on which the President was counting. The new chamber of the Supreme Court was his idea. It replaced the liquidated, illegal Disciplinary Chamber, which was breaching EU law and heavy-handedly suspended judges implementing ECtHR and CJEU judgments.

However, it is already clear that the new Chamber is also in conflict with EU law. Its 11 members were nominated by the President and the prime minister, who countersigned the President’s decision. In other words – they were appointed by politicians.

There are also six neo-judges of the Supreme Court in the Chamber, appointed by the illegal, politicised National Council of the Judiciary. Its status and the ‘institution’ of neo-judges were undermined by the CJEU and the ECtHR in their judgments. The new Chamber established in such a way and in such a membership is therefore in conflict with European law. It does not guarantee the right to a trial by an independent and impartial court, established by law.

After all, such a signal has already been sent by the ECtHR, which granted several judges a so-called interim measure, protecting them from suspension by the new Chamber with neo-judges.

Neo-judges of the Supreme Court, namely judges, whose status has been contested by the European Courts, could also bring about a severe conflict with the EU.

Neo-judge Paweł Czubik filed a motion on Wednesday 26 October 2022, which had the intention of removing 30 legal judges from the Supreme Court. This applies to judges who issued an important declaration that they refuse to adjudicate with the neo-judges of the Supreme Court. In the declaration, they referred to the judgments of the ECtHR and the CJEU, as well as the resolution of the full panel of the Supreme Court from January 2020, which contested the legality of the neo-NCJ, the neo-judges and the Disciplinary Chamber.

And now Czubik has requested Małgorzata Manowska (a neo-judge in the position of First President of the Supreme Court) to initiate a procedure to establish whether the declaration of the 30 judges means that they have resigned from their judicial office. Manowska accepted this request. It will go to the Office of Studies and Analyses of the Supreme Court, which is subordinated to her, which is to issue an opinion. And then the court president will decide whether to request the President to terminate the offices of these 30 judges. Czubik’s request can be seen as the exertion of pressure and an attempt to intimidate legitimate Supreme Court judges.

This is not all. On Wednesday 26 October, three neo-judges of the Supreme Court also requested the Supreme Court to decide on a legal issue in an extended membership. It intends to contest the legality of the judgments of the old Supreme Court judges. Neo-judges Marcin Łochowski, Jacek Grela and Kamil Zaradkiewicz requested the resolution of this issue.

The last of these was previously a member of the Constitutional Tribunal and then worked in Zbigniew Ziobro’s Ministry of Justice. At the Supreme Court, he was previously President Duda’s ‘commissioner’ and is known for launching proceedings to declare all judges nominated by the old, legal NCJ illegal. And there are thousands of them.

Why did the President opt for Kozielewicz?

Wiesław Kozielewicz, who was appointed by President Andrzej Duda as president of the Chamber of Professional Liability, had two contenders. The assembly of this Chamber presented the President with the choice of other neo-judges, Maria Szczepaniec from the Cardinal Stefan Wyszyński University in Warsaw and Paweł Dobrowolski from the John Paul II Catholic University of Lublin.

The President selected Kozielewicz because he is a legal judge of the Supreme Court and will not be a so-called hawk. Until now, he temporarily headed the new Chamber and adjudicated in it. The panels in which he was the presiding judge did not agree to indefinitely suspend judges implementing the judgments of the ECtHR and CJEU. This procedure of suspension was initiated by Minister of Justice Zbigniew Ziobro himself and his nominees in the courts.

But Kozielewicz also has no problem adjudicating with neo-judges of the Supreme Court. As one of several old judges, he also submitted a dissenting opinion to the historic resolution of the full Supreme Court of January 2020. It contested the legality of neo-judges, the neo-NCJ and the Disciplinary Chamber. This resolution is applicable and all judges of the Supreme Court are required to apply it.

However, the new court president will not find it easy. In addition to him, there are four other legal Supreme Court judges in the Chamber of Professional Liability. And two of them have already come forward to challenge its legality.

 Judge Krzysztof Staryk, who wrote a letter to the President to dismiss him from ruling in the new chamber, refused to take up his judicial duties in it. Staryk contested the mechanism by which the Chamber’s members were appointed by politicians and the involvement of neo-judges of the Supreme Court in it. He emphasised that the President does not have the power to nominate judges to examine a specific type of case, or to appoint them for a fixed term (for a 5-year term of office). He also questioned the fact that jurors adjudicate in it.

Objections to the method of appointment of this Chamber were also raised by legal judge Barbara Skoczkowska, who was also nominated by the President. And previously, the legality of the new Chamber was contested in a declaration of legal judges – members of the Supreme Court’s Board, which gives its opinion on some of the decisions made in the Supreme Court.

Even the ECtHR already states that a Chamber of Professional Liability in the membership nominated by the President will be in conflict with European law. This is evidenced by the interim measures obtained by the judges. The ECtHR prohibits their cases – of suspension for applying EU law – from being examined by a panel of neo-judges from the Chamber.

Kozielewicz’s status as president of the new Chamber may also be contested for these reasons. Because his candidature for the office of court president was accepted in a vote with the neo-judges of the Supreme Court. There were 5 neo-judges of the Supreme Court and two legal judges in the Assembly that selected three candidates for the office of president of the Chamber for presentation to the President.

Will Manowska request the removal of 30 Supreme Court judges

By bringing about the liquidation of the illegal Disciplinary Chamber – the Sejm passed his bill on the matter – and staffing the new Chamber with ‘his own’ judges, the President has therefore failed to extinguish the conflict with the European Commission. And he did not unblock the billions for Poland from the National Recovery Plan. Now, this conflict may be exacerbated, because PiS chairman, Jarosław Kaczyński, has once again announced a final takeover of control over the courts and the removal of independent judges.

The neo-judges of the Supreme Court may also help the authority exacerbate the conflict with the EU. A meeting of the combined Chambers – the legal Civil Chamber and the illegal Chamber of Extraordinary Control and Public Affairs (its status was contested by the ECtHR and the CJEU because neo-judges of the Supreme Court are its members) – was to be held on Wednesday, 26 October 2022. The Chambers were supposed to standardise the judgments of the Supreme Court and provide a response to the legal issue of whether the relatives of a person injured by an offence are entitled to compensation for ‘the inability to establish or continue a typical family relationship connecting these people with the injured person’.

There were two different resolutions of the Civil Chamber and the Chamber of Control in this case. And a joint meeting between them was supposed to result in one resolution being issued. However, the meeting was not held because it was cancelled by the rapporteur in the case, Neo-Judge Leszek Bosek. No reasons were given for the cancellation. The legal judges of the Supreme Court from the Civil Chamber came to the meeting, but not to adjudicate. They had previously filed a motion to cancel the session, indicating that it could not be held in a panel with neo-judges. They wanted to see what decisions would be made at the session.

Their behaviour is a consequence of the declaration of 17 October 2022. It was issued by the legal judges of the Civil Chamber, Criminal Chamber and the Labour and Social Insurance Chamber. It was signed by 30 judges, including the president of the Criminal Chamber, Michał Laskowski, the president of the Labour Chamber, Piotr Prusinowski, Professor Włodzimierz Wróbel, and the former president of the Civil Chamber, Dariusz Zawistowski.

In the declaration, the judges refer to numerous rulings of the CJEU, the ECtHR, but also the Polish Supreme Administrative Court and the resolution of the full membership of the Supreme Court of January 2020. These rulings challenged the legality of the neo-NCJ and the appointments it had given to neo-judges. They challenged them because this body is not independent of politicians, nor is it compliant with the Constitution.

The judges emphasise that they cannot adjudicate with neo-judges, because a ruling issued by such a bench would be defective. So it will be possible to overturn it and the State Treasury will have to pay compensation to the litigants for that.

Although the session of the combined Chambers was not held, Małgorzata Manowska – the neo-judge in the position of First President of the Supreme Court – who was chairing the session, accepted the motion of Neo-Judge Paweł Czubik from the Chamber of Control. According to OKO.press, the Supreme Court’s press office reports, ‘Paweł Czubik filed a motion for the FPSC [Małgorzata Manowska, in her capacity as First President of the Supreme Court – ed.] to initiate a procedure to establish whether the declaration of the 30 judges refusing to adjudicate in panels with judges appointed since the beginning of 2018 [with neo-judges of the Supreme Court – ed.], does not simultaneously mean that the former have resigned from office’.

The press office emphasises that ‘the First President has accepted this request, announcing that she will analyse it, after which she will decide how to proceed with it’. This means that, if Manowska receives an opinion that is unfavourable for the legal judges from the Office of Studies and Analyses of the Supreme Court, which is subordinated to her, she can request the President to remove these judges from office. However, such a move will mean an all-out war with the EU.

Pawel Czubik, who requested such an analysis, had previously issued decisions in the illegal Disciplinary Chamber. He was a member of the panel that punished Judge Alina Czubieniak from Gorzów Wielkopolski for a just ruling regarding a disabled man. Czubik later moved to the Chamber of Control.

He was also one of the reviewers of a doctoral thesis of a former deputy minister of justice, Łukasz Piebiak, who lost his position after the hate scandal broke out. Despite the ‘significant shortcomings’ in Piebiak’s doctorate, Czubik assessed it positively.

Will the neo-judges delegalize the old Supreme Court judges

The motion of three neo-judges from the Civil Chamber, Kamil Zaradkiewicz, Marcin Łochowski and Jacek Grela, could also end in a fierce conflict with the EU.  They requested the examination of a legal issue by an enlarged panel from the Supreme Court on Wednesday, 26 October 2022. The objective of the motion is to be able to contest rulings issued by legal Supreme Court judges and to contest nominations for them from the old, legal NCJ.

Such an objective is already indicated by the wording of the legal issue itself, which refers to people appointed to the Supreme Court ‘at the request of the National Council of the Judiciary operating in an obviously defective (unconstitutional) procedure or panel on the basis of provisions, the unconstitutionality of which was confirmed in a judgment of the Constitutional Tribunal’.

The panel of neo-judges almost certainly refers to a decision of Julia Przyłębska’s Constitutional Tribunal of 20 June 2017, which declared the provisions regarding the election of the old, legal NCJ unconstitutional in response to Prosecutor General Zbigniew Ziobro’s motion. This would mean that all nominations for legal judges – including in the Supreme Court – can be challenged. Such a view has long been promoted by Kamil Zaradkiewicz, a neo-judge of the Supreme Court whose appointment to the Supreme Court by the illegal new, politicised NCJ was personally supported by the Minister of Justice Zbigniew Ziobro.

However, rulings of the Constitutional Tribunal issued with the involvement of stand-in judges are not judgments, but non-binding decisions. Which arises from the case law of the ECtHR. And as many as two stand-in judges were involved in issuing the decision of the Constitutional Tribunal.

There are concerns that the enlarged panel of seven judges of the Civil Chamber which is to examine this legal issue could consist only of neo-judges of the Supreme Court. And they will decide whether the old Supreme Court judges are legal. The panel of the seven judges of the Supreme Court will be appointed by the president of the Civil Chamber, Joanna Misztal-Konecka, who is herself a neo-judge.

It should also be reiterated that PiS unconstitutionally dissolved the old, legal NCJ during its term of office. And appointed a new NCJ in its place, to which the PiS MPs elected mainly Zbigniew Ziobro’s associates. This body is therefore illegal.

Translated by Roman Wojtasz