On Friday 24 April, the National Prosecutor Bogdan Święczkowski sent a letter to the First President of the Supreme Court Małgorzata Gersdorf in which he expressed ‘serious doubts’ regarding her decision suspending the Disciplinary Chamber of the Supreme Court.

The National Prosecutor is demanding an explanation. He considers Gersdorf’s order to run counter to the law on the Supreme Court, saying that it goes beyond the First President’s administrative competence. According to the website wPolityce.pl, which is favourable to the ruling United Right coalition, the National Prosecutor defined this ruling as ‘inadmissible’, and claims that it exceeds the Constitution in the hierarchy of legal acts.

This is a mistake, because neither the Court of Justice of the European Union (CJEU) nor President Gersdorf have challenged the status of the judges appointed by the new National Council of Judiciary (Krajowa Rada Sądownictwa, KRS) and President Andrzej Duda, but has merely ordered them to refrain from issuing adjudications until the CJEU has clarified whether they have been properly appointed.

The Supreme Court’s spokesman Judge Michał Lasowski commented:

“There will be a response to this letter. The First President’s order is based on a ruling by the Court of Justice of the European Union and a resolution by the full composition of the Supreme Court of 23 January 2020. When issuing her ruling, the President was exercising her rights. It is not normal practice that the National Prosecutor should demand explanations of the President of the Supreme Court regarding its decisions. I have never encountered such a thing before.”

The Supreme Court’s First President, Małgorzata Gersdorf, dismissed the Supreme Court’s Disciplinary Chamber on Monday 20 April. Gersdorf was enforcing the Court of Justice of the European Union’s judgment of 8 April 2020, which suspended the Chamber from its jurisprudence until it had examined the preliminary questions concerning it.

Under President Gersdorf’s decision, the Chamber may neither hear cases for consideration nor issue verdicts. In her order, the First President of the Supreme Court has also suspended some of the competences of the President of the Disciplinary Chamber, Tomasz Przesławski. Moreover, the President of the Supreme Court has also reassigned the cases that are presently being heard by the Disciplinary Chamber; these will go to the ‘old’ chambers of the Supreme Court.

The Disciplinary Chamber has seven days to respond to the case; the deadline is Monday 27 April.

If the Disciplinary Chamber or employees of the Supreme Court disregard Gersdorf’s ruling, they will face disciplinary or professional consequences.

President Gersdorf issued the order because the Disciplinary Chamber had disregarded her opinion, which she issued immediately after the ruling by the EU Court of Justice. She then called on the Disciplinary Chamber to cease its adjudications and to hand over the cases it was presently dealing with.

However, there is a risk that the Disciplinary Chamber will disregard President Gersdorf’s decision, because on 30 April her six-year term of office as First President of the Supreme Court will come to an end. She will be replaced by a judge-commissioner appointed by President Andrzej Duda, who will temporarily head the Supreme Court until five candidates for the position have been chosen. President Duda will select the new leader of the Supreme Court from among them.

The judge-commissioner or the new president will be able to change Gersdorf’s ruling and allow the Disciplinary Chamber to fully resume its operations.

Translated by Jim Todd