This matter will reverberate loudly throughout the European Union. Because the repression is striking at the First President of the Supreme Court for the first time. The matter is scandalous and this will also be significant within the EU, because a disciplinary charge was pressed against Małgorzata Gersdorf – pictured above – for the historic resolution of 23 January 2020 issued by almost all the legal judges of the Supreme Court.

In this resolution, the judges of the Supreme Court contested the legality of the new, politicised NCJ and the appointments it had given to neo-judges, including the neo-judges of the Supreme Court.  The legality of the Disciplinary Chamber was also undermined.  The resolution has the force of a legal principle and is in force all the time.  Judges of the Supreme Court and judges of the ordinary courts are applying it in their judgments.  And, on this basis, they are undermining the status of the neo-judges and the rulings issued with their involvement. 

Conducting disciplinary action against President Gersdorf now for this resolution could thwart the Morawiecki government’s plans to quickly unblock billions of euros for Poland for the National Recovery Plan. Because if the head of the Ministry of Foreign Affairs is arriving at a deal with the European Commission, a strong signal is coming from Ziobro’s people in Poland regarding the intensification of the repression of independent judges, including those in the Supreme Court.

Disciplinary charges were raised against Małgorzata Gersdorf by the ‘famous’ Piotr Schab, who, as Minister Ziobro’s disciplinary commissioner – together with his deputies Przemysław Radzik and Michał Lasota – prosecutes independent judges for just about anything.  However, in this case, he is acting as an extraordinary disciplinary commissioner. President Andrzej Duda appointed him to this function in June 2022. And ordered him to conduct 5–10 investigations regarding legal judges of the Supreme Court and neo-judges of the Supreme Court. These cases were transferred from the disciplinary commissioner of the Supreme Court – Gersdorf’s case was initiated by a report from a ‘citizen’.

Schab first summoned former Supreme Court President Małgorzata Gersdorf to submit explanations at the end of October 2022. And now he has raised a disciplinary charge against her. The charge is dated 29 November 2022. Schab is accusing her of misconduct under Article 72, para. 1 of the Act on the Supreme Court. This provision refers to the manifest and gross contempt of the law.

What Special Commissioner Schab is prosecuting Gersdorf for

Schab is accusing the former president of the Supreme Court of failing to obligatorily suspend the issuance of the historic resolution on 23 January 2020 by the full membership of the Supreme Court – or more precisely by the three combined legal chambers. He believes Gersdorf should have suspended the proceedings in this case because the Marshal of the Sejm, Elżbieta Witek, had asked Przyłębska’s Constitutional Tribunal to initiate an alleged competence dispute between the Supreme Court and the President and the Sejm. Witek’s petition was filed to block the Supreme Court from issuing the resolution.

However, Schab believes that Gersdorf breached the institution of obligatory suspension and negated ‘the legal effect of the petition to resolve the competence dispute by way of suspending the proceedings [before the Supreme Court – ed.]’. And Schab further alleges that Gersdorf brought about ‘some of the judges of the Supreme Court issuing a resolution on the matter encompassed by this dispute, which clearly and flagrantly breached the provision of Article 86, para. 1 of the Act on the organisation and procedure of proceeding before the Constitutional Tribunal of 30 November 2016’.

This provision says that the initiation of a competence dispute before the Constitutional Tribunal results in the obligatory suspension of the proceedings before the bodies involved in the competence dispute. In other words, the Supreme Court should have automatically suspended the case regarding the issuance of the resolution.

It should be added that Article 86, para. 1 was enacted by the Law and Justice party (PiS), which started to take over and pacify the legal Constitutional Tribunal immediately after winning the 2015 elections. And PiS had already taken advantage of this article earlier, initiating an alleged competence dispute in order to block the examination of the appeal against the conviction of former head of the Anti-Corruption Bureau, Mariusz Kaminski. It succeeded then, so a similar manoeuvre was used to block the historic resolution. Unsuccessfully, because the Supreme Court decided that there was no competence dispute.

Judge Prusinowski: 59 Supreme Court judges should be charged

What next? President Gersdorf has 14 days to submit explanations and motions to take evidence. And then Schab can discontinue the case or submit a petition to the disciplinary court to apply a punishment. He is most likely to choose the latter.

President Gersdorf has three defence attorneys in this case. They are the president of the Labour and Social Insurance Chamber of the Supreme Court, Piotr Prusinowski, Supreme Court Judge Jarosław Matras from the Criminal Chamber and Piotr Zemła, Attorney-at-Law.

We asked Supreme Court Judge Piotr Prusinowski for his comment. ‘We hope the case will go to court quickly. The disciplinary charge is inconsistent,’ Prusinowski tells us.

And continues: ‘An allegation is being raised against the First President of the Supreme Court, who was alleged not to have brought about the suspension of these proceedings. However, in Poland, it is the courts that issue rulings, and not the First President of the Supreme Court. Piotr Schab did not notice this. And, after all, there are minutes of the meeting of the three Chambers of the Supreme Court which issued the resolution. It arises from them that President Gersdorf presented Marshal Witek’s petition regarding the competence dispute to all the Supreme Court judges assembled at the time.

And all the judges of the Supreme Court agreed that this was not an obstacle to proceeding. No procedural decision was made as to whether we are suspending the proceedings or refusing to suspend them. We simply initiated the proceedings. We decided by acclamation that there were no grounds for stopping the proceedings.’

Prusinowski also highlights emphatically: ‘This disciplinary charge should be for the Supreme Court or for the 59 Supreme Court judges who issued this resolution’.

How the Supreme Court’s historic resolution was issued

We should reiterate that the historic resolution of the Supreme Court was issued on 23 January 2020. PiS and Minister of Justice Zbigniew Ziobro have been taking control of the courts in stages since the beginning of their election victory in 2015. First they took control of the Constitutional Tribunal and the prosecutor’s office. They then dissolved the legal NCJ during its term of office and appointed a new NCJ in its place, which PiS MPs staffed mainly with Minister Ziobro’s associates. The NCJ is key, as it decides who is to become a judge and who is to be promoted, as well as filling vacancies in the Supreme Court.

However, there have been legitimate allegations from the very beginning that these changes are in conflict with the Constitution and European law, which guarantees citizens the right to a trial before an independent and impartial court established by law. Because the NCJ is not an independent body, its membership is also in conflict with the Constitution. Whereas a politicised body cannot issue legal appointments to judges.

There were also accusations with respect to the Disciplinary Chamber, which was supposed to help PiS remove independent judges and prosecutors from the profession. Because it is a special court, which the Constitution does not provide for in peacetime. Furthermore, it was mainly Ziobro’s associates who ended up there.

In connection with these doubts, judges, including judges of the Supreme Court, started to send questions to the CJEU requesting preliminary rulings on the legality of the changes in the judiciary. And one of the first such questions was answered by the CJEU in November 2019. The CJEU then specified for the first time the criteria according to which the legality of the neo-NCJ and the Disciplinary Chamber should be assessed. The criteria applied to the principles of impartiality and independence. And it was clear that the neo-NCJ and the Chamber did not meet them.

Judge Paweł Juszczyszyn from Olsztyn was the first to implement this judgment. He ordered the presentation of lists of support for candidates for the neo-NCJ because he wanted to examine the legality of this body. And it was then already known that one of its members, Maciej Nawacki, simultaneously president of the District Court in Olsztyn, a Ziobro nominee, did not have all the signatures required by law.

Juszczyszyn quickly experienced reprisals for this. Minister Ziobro’s disciplinary commissioner initiated disciplinary action with respect to him at lightning speed for implementing the CJEU ruling. Ziobro’s ministry removed the judge from adjudicating on secondment in the regional court. Juszczyszyn was also finally suspended for more than two years by the illegal Disciplinary Chamber. On the back of this case, PiS also hurriedly passed the Muzzle Act in the Sejm, which prohibited judges from examining the status of the neo-NCJ, the Disciplinary Chamber, and Przyłębska’s Constitutional Tribunal under the sanction of penalties.

But this has not frightened other judges. In December, a panel of judges from the Chamber of Labour and Social Insurance of the Supreme Court – who had submitted questions to the CJEU requesting preliminary rulings – implemented the Court’s ruling of November 2019. It held that the neo-NCJ is not independent and the Disciplinary Chamber is not a court. In response to this, the other new chamber of the Supreme Court appointed by PiS, the Chamber of Extraordinary Control and Public Affairs, adopted a decision in early January 2020, in a panel of seven members, restricting the ability to examine the status of the neo-NCJ. And the Disciplinary Chamber legalised itself, still in 2019.

Therefore, on 15 January 2020, the President of the Supreme Court, Małgorzata Gersdorf, decided that the three legal Chambers of the Supreme Court – the Criminal, Civil and Labour and Social Insurance Chambers – should resolve the legal issue regarding the status of the neo-NCJ, the Disciplinary Chamber and the neo-judges. The neo-judges of the Supreme Court from the Disciplinary Chamber were ruled out from participating in issuing the resolution. Because the case applied to their status. A session of the full membership of the three legal Chambers was planned for 23 January 2020.

How PiS and Przyłębska wanted to block the resolution of the Supreme Court

PiS reacted to this instantly. On 21 January 2020, the Marshal of the Sejm, Elżbieta Witek, filed a motion with Przyłębska’s Constitutional Tribunal to resolve an alleged dispute on competence between the Supreme Court and the President and the Sejm. The issue applied to the ability of the Supreme Court to assess the status of neo-judges and the status of institutions established and staffed by PiS. Therefore, Constitutional Tribunal President Przyłębska informed Supreme Court President Gersdorf that she believes the legal issue regarding the neo-NCJ, neo-judges and the Disciplinary Chamber should be suspended.

But the Supreme Court did not let itself be swayed. PiS had already once blocked the examination of a cassation appeal in this way in the case of the former head of the Anti-Corruption Bureau, Mariusz Kamiński, who was pardoned by President Andrzej Duda during his trial. Kamiński was convicted in a non-final decision of abusing the law during the Anti-Corruption Bureau’s provocation targeted at Andrzej Lepper.

In order to block the Supreme Court’s examination of Kamiński’s case, the Marshal of the Sejm approached the Constitutional Tribunal in August 2017 with a request to investigate the alleged competence dispute between the Supreme Court and the President. Przyłębska then also requested the Supreme Court to suspend the case, and the Supreme Court complied. But the Constitutional Tribunal has not addressed the alleged competence dispute to this day.

The Supreme Court did not let itself be fobbed off in this way in January 2020. A session of the full legal membership of the Supreme Court was held on 23 January 2020 and a historic resolution was issued, which the judges of the Supreme Court must still apply today. The case was processed because it was acknowledged that there was no competence dispute. This is also what President Gersdorf wrote to Przyłębska before the session.

Then, on 28 January, the Constitutional Tribunal suspended the application of the Supreme Court’s resolution and, in April 2020, the Constitutional Tribunal acknowledged in a decision that the Supreme Court’s resolution was not applicable. We write that this was a decision because there were so-called ‘stand-in judges’ in the Constitutional Tribunal’s panel. And according to the case law of the ECtHR, panels with such people – who are defectively appointed to the Constitutional Tribunal by the Sejm, to seats that had already been legally filled – does not issue rulings. However, the Constitutional Tribunal’s decision did not stop the application of the resolution of the Supreme Court by judges. They are still invoking it, disregarding the Constitutional Tribunal’s decision.

Is the action being taken against President Gersdorf now a prelude to cracking down on legal Supreme Court judges and the resolution of the full membership of the Supreme Court? Pressing disciplinary charges against Gersdorf could serve the purpose of striking at them and be used as a pretext for an attempt to change this resolution by neo-judges of the Supreme Court, of whom there are already half in the Supreme Court.

Translated by Roman Wojtasz