On Wednesday, 15 July 2020, the Chamber of Labour and Social Security in the Supreme Court examined lawsuits filed by judges, mainly from the Iustitia Association of Polish Judges, who have been defending the independence of the judiciary in Poland.

The claims concern whether the new judges of the Supreme Court appointed by the new, unconstitutional, politically-dependent NCJ are indeed legally judges.

The lawsuits mainly concern judges from the Supreme Court’s two new chambers, the Disciplinary Chamber and the Extraordinary Control & Public Affairs Chamber.

The latter will rule on the legality of the elections, and will now consider the upcoming protests regarding the recent presidential election.

Objection: the new judges of the Supreme Court are not judges

Initially, 15 lawsuits were brought to establish that the new judges of the Supreme Court are not legally judges, but the Supreme Court declined to examine six of them due to their formal shortcomings. Nine such cases remain.

The petitioners include judge Monika Frąckowiak from Poznań, Paweł Juszczyszyn from Olsztyn, the head of Iustitia Krystian Markiewicz, and judge Waldemar Żurek from Kraków, the former spokesman for the old, legal NCJ which was dissolved by PiS.

They are suing, among others, Aleksander Stępkowski, the Supreme Court’s press spokesman; Kamil Zaradkiewicz; Joanna Lemańska, the president of the Extraordinary Control & Public Affairs Chamber; and Tomasz Przesławski, the president of the Disciplinary Chamber.

The petitions’ authors believe that the new Supreme Court judges have not been legally appointed because the procedure for their election was faulty. They were chosen by the new National Council of the Judiciary, which itself was illegitimate because one of its members is judge Maciej Nawacki from Olsztyn, who did not gather all the signatures in support required by law for his candidacy.

If this is the case, then the selection of the entire National Council of the Judiciary was at fault. In addition, the petitioning judges have accused the new National Council of the Judiciary of having ties to politicians, because most of the judges sitting on it have previously worked with the Ministry of Minister Zbigniew Ziobro.

Along with the lawsuits, some of the petitioning judges have applied for so-called security applications, i.e. the suspension of the new Supreme Court judges, until the lawsuits have been heard.

The ‘new’ judges want to take over the lawsuits

The precedential lawsuits were already a controversial matter back in April 2020, when the term of office of President Małgorzata Gersdorf was coming to an end.

At that time, the authors of the lawsuits appealed for the security applications to be examined with all due speed. They were afraid that if one of the new Supreme Court judges succeeded President Gersdorf, the cases might not be heard at all.

It turned out that these fears were justified.

In May 2020, the interim president of the Supreme Court, Kamil Zaradkiewicz (appointed by President Duda), became interested in the lawsuits. The president of the Disciplinary Chamber, Tomasz Przesławski, approached him concerning the matter. He wanted Zaradkiewicz to have the files on cases concerning “the establishment of the [new Supreme Court judges’] working relationship” transferred to his Chamber. The files are registered in the Chamber of Labour and Social Security, i.e. in the Chamber of the old Supreme Court, whose president is Józef Iwulski.

Przesławski demanded the files on the basis of Article 27 of the law on the Supreme Court, which PiS had amended many times in order to increase the government’s control over the Supreme Court.

This provision allocates cases concerning the employment of judges to the Disciplinary Chamber. Zaradkiewicz quickly wrote to the Chamber of Labour’s president, demanding that all matters relating to the new judges be referred to his desk immediately. He also demanded that Iwulski take a position on the demands made by the Disciplinary Chamber’s president.

However, President Iwulski did not give in to the pressure. He replied to Zaradkiewicz that the files had already been assigned to the adjudication panels, and that only they could decide what would happen to them next. He added that the request by the Disciplinary Chamber’s president to transfer the files would be examined by the adjudication panels in closed sessions.

At the beginning of July, the president of the Extraordinary Control & Public Affairs Chamber, Joanna Lemańska, also applied for the lawsuits to be transferred, because of the draconian ‘muzzle’ law  passed by PiS had assigned the cases concerning the judges’ status to her Chamber.

Who is suing the new Supreme Court judges?

The Chamber of Labour considered the applications to submit the nine precedential lawsuits on 8 July, just a few days before the second round of the presidential elections. But the matter had to be postponed, because Ziobro’s prosecutor’s office suddenly took an interest in them. The Chamber resumed its consideration of the motions on Wednesday 15 July. These are the nine claims brought by the judges:

• Waldemar Żurek against Aleksander Stępkowski & Kamil Zaradkiewicz. Judge Żurek will undergo a disciplinary hearing because of his lawsuit against Zaradkiewicz.

• Paweł Juszczyszyn against Adam Tomczyński & Ryszard Witkowski (they suspended Juszczyszyn from his judicial duties and cut his salary by 40 percent).

• Monika Frąckowiak against the president of the Disciplinary Chamber Tomasz Przesławski & Jan Majchrowski from the Disciplinary Chamber.
• Krystian Markiewicz against the president of the Disciplinary Chamber Tomasz Przesławski.
• Tomasz Błaszkiewicz, a judge from Sulęcin, against 20 judges from the Extraordinary Control & Public Affairs Chamber, including its president Joanna Lemańska.
• Tomasz Marczyński, vice president of Iustitia, against 8 of the new Supreme Court judges.
• Bartłomiej Starosta, a judge from Sulęcin, against 6 of the new judges.

On Wednesday 15 July the Chamber of Labour was also supposed to consider the motions to suspend the new Supreme Court judges, as the authors of the lawsuits had hoped for. However, the Chamber did not transfer the files with the claims to the Disciplinary Chamber, nor did it consider the security applications. This was because, on the basis of these cases, the Chamber had referred several of the preliminary questions for consideration by the Court of Justice of the European Union in Luxembourg.

The Chamber of Labour wants the CJEU to speak about the new judges’ status

The Chamber of Labour has asked the CJEU to consider the status of the new Supreme Court judges, as well as the bans on judges in the ‘muzzle’ act adopted by PiS, in the forms of the following questions:

1. Can the president of the Disciplinary Chamber request files about cases concerning the establishment of a judge’s working relationship in a situation where the Chamber’s judicial activity was suspended by the CJEU in April 2020, until another preliminary question is considered for a ruling?
2. Is it possible to suspend a new judge pending a hearing establishing his status?
3. Can the Supreme Court decide that a new judge is not legally a judge in a situation where he has been appointed by the president, but there were previous shortcomings in the procedure before the new NCJ?
4. Could the ‘muzzle’ act passed by PiS in December 2019 prohibit judges from examining the status of the new judges designated by the new NCJ?

The Chamber of Labour has also requested the CJEU to consider its preliminary questions under an accelerated procedure.

The CJEU will first approach the case in September

Judge Krystian Markiewicz, president of Iustitia and the author of one of the precedential lawsuits, regrets that the Chamber of Labour has only now begun to examine them.

“It is a bad thing that these matters were not resolved before the new president of the Supreme Court was elected. Now, perhaps, there would be a different situation regarding the election of the first president of the Supreme Court [as it would be clear whether the new judges could take part in this election – Ed.] and deciding on whether the presidential election was valid,” says Markiewicz. But he emphasises that the issue of the status of the new Supreme Court judges is still alive, and now the CJEU will rule on the matter.

“The submission of the preliminary questions for a ruling by the CJEU protects these claims from being taken over by force by the Supreme Court’s new chambers. Moreover, after the CJEU issues its ruling, these cases will be returned to the judges from the Chamber of Labour, who will issue their own rulings,” stresses judge Markiewicz. And he adds: “I hope that the CJEU will also assess and question the whip that has been raised against the judges, i.e. the provisions of the ‘muzzle’ law.”

Before the CJEU considers the preliminary questions, in September 2020 it will deal with other questions from the Chamber of Labour. These were submitted earlier on the basis of one of the two lawsuits by judge Frąckowiak. The questions concern whether the new Supreme Court judges are in fact legally judges.

The Chamber of Labour explained that it was precisely because of these earlier questions that it had not yet examined the precedential lawsuits because it is waiting for the CJEU’s ruling; moreover, the current preliminary questions are broader in scope, and also concern the ‘muzzle’ law.

Translated by Jim Todd