Translation of Polish-language summary of what the Commissioner for Human Rights wrote, on 4th June 2020, to Prime Minister & First President of Supreme Court.

· Despite the order of the Court of Justice of the European Union (CJEU) on the suspension of the Disciplinary Chamber of the Supreme Court, the Chamber still decides on cases related to waiving the immunity of judges;

· On 9 June it is to decide, inter alia, on the consent to prosecute Judge Igor Tuleya;

· However, the CJEU decision means that all Disciplinary Chamber’s judicial activity should be ceased;

· Non-compliance with the CJEU safeguard measures may mean a penalty payment for Poland and further undermining of trust in the Polish judiciary;

· The Commissioner for Human Rights reminds of these issues the First President of the Supreme Court, Ms Małgorzata Manowska, and the Prime Minister, Mr Mateusz Morawiecki.

These statements made by the Commissioner for Human Rights are connected with the information on the continuation of judicial activity by the Disciplinary Chamber, despite the CJEU order of 8 April 2020 to suspend it.

What CJEU decided

The decision was made in the proceedings related to the complaint of failure to comply with the member state obligations, initiated by the European Commission on 25 October 2019. The allegations concern Poland’s violation of the principle of effective legal protection and national courts’ rights to submit requests for a preliminary ruling.

The essence of these proceedings is to protect the independence and impartiality of judges against exerting any pressure on them and influencing the judgements they deliver by using the disciplinary liability mechanism. Such interference in judicial independence violates the requirements of the principle of effective legal protection guaranteed by EU law. It also violates the constitutional principles and guarantees (Article 2, Article 7, Article 10 paragraphs 1 and 2, Article 45 paragraph 1, Article 173, Article 178 paragraph 1 of the Constitution) and the requirements of the European Convention on Human Rights.

CJEU decided to suspend the application of the provisions of the Supreme Court Act establishing the Disciplinary Chamber as well as to refrain from referring the cases pending before the Chamber for consideration by the panel not meeting the requirements of independence, laid down, inter alia, in the CJEU judgment of 19 November 2019.

In my opinion, each of the two points of the CJEU order is sufficient for the Disciplinary Chamber of the Supreme Court to stop all judicial activity with regard to judges, until the final judgment is delivered by the CJEU or until the safeguard order is amended, Adam Bodnar emphasizes.

CJEU suspended all Disciplinary Chamber’s competences

The CJEU order should be interpreted as the suspension of the Disciplinary Chamber’s activity related to the full range of its jurisprudence competence over judges. The Disciplinary Chamber and its members may therefore not take any judicial action against judges. The suspension may not be circumvented by invoking competences resulting from other laws, such as the Act of 20 December 2019 (the so-called repressive law) or the Law on the system of common courts.

In the opinion of the CJEU, which is shared by the Commissioner for Human Rights, the lack of a guarantee of the Disciplinary Chamber’s independence may cause serious and irreparable damage to the EU legal order and the Polish judiciary, it may jeopardize the EU values as well as the protection of individuals’ rights, which are to be guarded by the Commissioner for Human Rights pursuant to Article 208(1) of the Constitution.

Judicial independence is an absolute and indivisible guarantee. It cannot be assumed that a body – whose independence and impartiality is fundamentally questionable in view of the circumstances in which it was set up, its characteristics and the manner in which its members were appointed – is to refrain from ruling on disciplinary liability in cases involving judges, and may rule on other cases involving judges, such as allowing a judge to be held criminally liable.

Therefore, the absence of a guarantee of the Disciplinary Chamber’s independence, sovereignty and impartiality poses a threat to the independence, sovereignty and impartiality of the Supreme Court and the common courts, with regard to the full range of Disciplinary Chamber’s rulings. As a consequence, the CJEU order makes it necessary to suspend the Disciplinary Chamber’s activities not only with respect to the disciplinary liability of judges but also in other cases involving judges.

Meanwhile, the list of cases of the Supreme Court still comprises the sessions of the Disciplinary Chamber’s panels that give rulings in, inter alia, such cases.

The primary function of the CJEU interim measures was to protect judges in Poland from the Disciplinary Chamber’s interference in their independence and from the use of the disciplinary liability system for the political control of judicial decisions.

As such a risk exists in the case of disciplinary proceedings, it is all the more so in the case of criminal proceedings. The Disciplinary Chamber’s decision – allowing a judge to be held criminally liable – does not only produce legal effects for him, but can also be an instrument of infringing on his independence.

It also paves the way for taking actions by the prosecutor’s office, which – due to its subordination to the Prosecutor General and at the same time the Minister of Justice, an executive authority headed by a politician – is not an independent body. This increases the risk of political influence on judicial independence.

CJEU order is binding on Poland

The Commissioner for Human Rights recalls that in its final judgment of 5 December 2019 the Supreme Court stated that the Disciplinary Chamber is not a court within the meaning of Article 47 of the EU Charter of Fundamental Rights or Article 6 of the European Charter of Human Rights (ECHR) or Article 45(1) of the Constitution. The resolution adopted by the merged chambers of the Supreme Court of 23 January 2020 leads to the same conclusion, extended by the non-compliance of the Disciplinary Chamber with the requirements of Article 19.1.2 of TEU (Treaty on European Union) and Article 175.2 of the Constitution.

Despite the critical position expressed publicly by Madame President, this judgment and the Supreme Court’s resolution are binding and must be respected, Adam Bodnar underlines.

The Commissioner for Human Rights is aware of the judgment of the Constitutional Tribunal of 20 April 2020 and its decision of 21 April 2020. However, the Constitutional Tribunal ‘s actions in these cases raise fundamental legal doubts. According to the CJEU position, the opinions expressed in these judgments of the Constitutional Tribunal must be disregarded by the court adjudicating in a particular case – if their consideration led to limiting the possibility of applying the CJEU judgment of 19 November 2019.

Thus, these Constitutional Tribunal’s rulings do not also affect the application of the Supreme Court’s resolution of 23 January 2020 or the powers and obligations of national courts arising out of the EU law, clarified by the Supreme Court’s ‘s resolution. This clearly follows from the CJUE judgment in Case C-416/10 (Križan and others). According to it, a national court should not take into account the assessment of a higher court or a constitutional court if it considers this assessment not to be compatible with EU law.

The CJEU order binds Poland as a state, as an entity of international law, and at the same time as a member of the EU bound by the principle of loyal cooperation. It is subject to the EU principle of primacy and takes precedence over national legal acts that are incompatible with it. It is binding on all national authorities within their competence, including the Supreme Court, the Disciplinary Chamber, all Supreme Court’s adjudicating panels and Supreme Court’s administrative bodies.

Constitutional Tribunal lost the ability to effectively control the constitutionality of the law

For this reason, the Commissioner for Human Rights is critical about the submission, by the single-member Disciplinary Chamber of the Supreme Court, of a legal question to the Constitutional Tribunal (file ref. P 7/20) aimed at depriving the CJEU safeguard order of its effectiveness. However, the Constitutional Tribunal has no competence to assess CJEU rulings. The Commissioner for Human Rights joined the proceedings in the Constitutional Tribunal and applied for their discontinuance due to the inadmissibility of the ruling.

As a recognised litigator, Madame President is undoubtedly aware of the nature and scale of the violation of the law when appointing members to the Constitutional Court in 2015 and in the following years, and then when forming the new National Council of the Judiciary and appointing members to it in 2018, as well as when appointing subsequently Supreme Court judges, Adam Bodnar writes.

The changes introduced in the Constitutional Tribunal caused this body to actually lose its ability to effectively control the constitutionality of the law. In fact, the intention of the question is not to protect the Constitution, but to obtain the protection of an unconstitutional state, violating at the same time the EU legal order.

Ignoring the CJEU order may have serious consequences

Poland faces serious negative consequences if it fails to comply with the CJEU safeguard measures. The European Commission may request the CJEU to impose an additional periodic penalty payment. The CJEU may also ex officio supplement the interim measures imposed to date with the subsequent ones. Failure to enforce the interim measure may also be a source of the state liability for damages to private entities whose rights may be adversely affected.

Failure to comply with the CJEU safeguard order will further decrease the Supreme Court’s credibility and undermine trust in the Polish judiciary. This, in turn, will be of importance for the participation of the Polish judiciary in the European legal area and the mechanisms of mutual recognition and enforcement of judicial decisions, which will have direct negative impact on exercising rights of individuals.

Therefore, the Commissioner for Human Rights presented both the First President of the Supreme Court and the President of the Council of Ministers these remarks aimed at ensuring effective protection of citizens’ rights and freedoms, including the right to an independent, sovereign and impartial court and the principle of effective legal protection.

In a letter to the Prime Minister, Mateusz Morawiecki, the Commissioner for Human Rights pointed out that the members of the government have repeatedly challenged the jurisdiction of the CJEU to rule on the independence of Polish judges. This argument is false, and has already been refuted many times in judicial decisions and specialist literature of which the Prime Minister, as an expert in European law, is aware, Adam Bodnar added.

The Commissioner for Human Rights also requested the Prime Minister to give his position on this matter and to take all necessary measures to ensure full effectiveness of the CJEU order and its future judgment.

The Polish government was obliged to notify the European Commission of the measures taken to fully comply with the CJEU order. Information in the media indicates that the Prime Minister has fulfilled this obligation. However, the content of this notification is unknown. Therefore, the Commissioner for Human Rights requested its delivery to him.