text by Dominika Sitnicka

The National Council for the Judiciary is not a body independent from the legislative and executive powers, and the Disciplinary Chamber of the Supreme Court does not constitute a court as defined under European Union or national law – this is the sense of the ruling issued on 5 December by the Labour Law and Social Security Chamber of Poland’s Supreme Court.

This is the first of three cases in which the Court of Justice of the European Union provided guidance to the Supreme Court in its verdict of 19 November.

In the ruling, the judges emphasised that the legal interpretation set out in the CJEU verdict is binding on all courts in Poland, as well as all other state authorities. The judgement unambiguously and precisely defines the standard for assessing the independence and impartiality of courts. Every court in Poland, including the Supreme Court, is obliged to examine ex officio whether the standard set out by the CJEU judgement is being fulfilled in every case.

Following their ruling, the judges of the Labour Law and Social Security Chamber stated: “This is the beginning of our jurisprudence. How will it develop? It’s hard to say”.

It is certain that many courts will follow the lead of the Supreme Court and call into question the authority of the new National Council of the Judiciary. What consequences might arise from this?

Tens of thousands of verdicts in question

There are over 300 judges appointed by the new Council currently adjudicating in common courts. If the Council is not independent, then the judges appointed by it are also improperly appointed. Estimates are that these judges have already handed down 70,000 verdicts. All of them can potentially be quashed.

Attorney Sylwia Gregorczyk-Abram from the “Free Courts” (Wolne Sądy) organization explains:

“If the proceedings were concluded in the first instance, then the appeals court can set aside this verdict on the ground of an improperly appointed court. This is a ground for appeal. If the proceedings are finalized, then the parties can motion for renewal of proceedings, invoking the CJEU lodgement as new evidence in the case. A motion can also be filed for the disqualification of a judge.”

What about the Disciplinary Chamber itself, which is not a court, and which is continually receiving new cases?

In Gregorczyk-Abram’s opinion, disciplinary matters could be redirected to the Criminal Chamber, which previously ruled in those cases.

A similar motion was filed by attorneys representing prosecutor Justyna Brzozowska, demanding that the Criminal Chamber review the revocation of her immunity. The Disciplinary Chamber, however, ruled it was the appropriate court and continued the proceedings. It ruled to revoke the prosecutor’s immunity in chambers.

Attempts at “legalising” the Council and Disciplinary Chamber

A few months earlier, the Constitutional Tribunal under the leadership of Julia Przyłębska took up the new Council. In March 2019, the Constitutional Tribunal ruled that the Council had been appointed in compliance with the Constitution.

In a ruling on 5 December, the Labour Law and Social Security Chamber of the Supreme Court referred to this, stating that “courts must in any event examine adherence to EU law in their national legal system.” In other words, the ruling of the Constitutional Tribunal is irrelevant in this case.

In April, the full Disciplinary Chamber adopted a resolution holding that the process by which it was established was entirely legal. A resolution passed by the full Chamber has the force of a rule of law. It binds all panels adjudicating in the Supreme Court. All judges are bound by this resolution until the moment a new resolution is adopted.

Why, then, is there a new line of jurisprudence which, following the ruling by the Labour Law and Social Security Chamber, runs contrary to this resolution?

“The resolution of the Disciplinary Chamber was adopted on the basis of provisions of the Code of Criminal Procedure. We rule based on the Code of Civil Procedure. The Disciplinary Chamber also evaluated the national standard, while we evaluate the EU standard. Thirdly and finally – nobody should be a judge in their own case,” argued the Labour Law and Social Security Chamber of the Supreme Court.

In the opinion of First President of the Supreme Court Małgorzata Gersdorf, following the CJEU and Supreme Court judgements, the further activity of the Disciplinary Chamber is a breach of the legal order. In an official communique, Gersdorf summoned the judges of the Disciplinary Chamber to cease ruling on cases.

Legislation necessary

 
Judge Leszek Mazur, president of the National Council of the judiciary, commented on the new ruling by the Labour Law and Social Security Chamber.

“This ruling won’t be of any real consequence. In no way does it subvert the status of judges in the Disciplinary Chamber. It only serves to introduce a hint of uncertainty into the system, and is problematic in light of the principle of irremovability of judges,” he said in an interview with PAP. In his view, the judgement also has no bearing on the work of the Council.

Meanwhile, lawyers are calling for the immediate suspension of the National Council of the Judiciary as a way of avoiding further chaos, among other things.

“All those who have been selected by the new National Council of the Judiciary and are ruling in the various courts should draw conclusions from the Supreme Court’s judgement. I’m not going to tell them what they have to do. However, it is necessary to avoid increasing the extent of the chaos and uncertainty as to whether their rulings are binding or not,” said Judge Michał Laskowski, the Supreme Court’s spokesman.

He called on the authorities to take legislative action:

“Courts will likely take the Supreme Court’s reasoning into consideration. They will submit more referrals to the Supreme Court, or they will themselves rule independently. This sate of affairs could lead to competing judgements being issued by various authorities.

Various positions, like that of the president of the National Council of the Judiciary. All this taken together is detrimental to the state and to the democratic rule of law. This is why I am calling for a legislative solution to be devised. Unless, that is, there are some who see a political interest in this destabilization, chaos, and divergent rulings.”

Małgorzata Gersdorf also called for the authorities to engage in “immediate legislative action” – that is, to repair the National Council of the Judiciary and the Supreme Court – to resolve the problems addressed by the CJEU and Supreme Court judgements.

[translated by Matthew La Fontaine]