Minister of Justice Zbigniew Ziobro wants to remove the legal judges from the Supreme Court. The current Supreme Court is to be liquidated under the guise of implementing a CJEU ruling, to be replaced by a small Supreme Court with only 30 vetted judges. This radical plan is in conflict with Duda’s and PiS’s bills.

Minister Ziobro and his party, Solidarna Polska, are coming into play over the Supreme Court. A draft of a completely new law on the Supreme Court appeared on the Sejm’s website in the evening of Tuesday 22 February 2022. It was submitted during a trip to Poland of a delegation from the European Parliament to check the situation with the rule of law in Poland on the spot.

It arises from the description of the bill that it was submitted by a group of Law and Justice party (PiS) MPs, but it is a draft which was prepared in Ziobro’s ministry. This is evidenced by several facts:

• The most important assumptions to the bill were already described by the media earlier in the form of so-called controlled leaks.

• Several days ago, Solidarna Polska politicians announced the submission of their bill on the Supreme Court to the Sejm.

• Finally, although the description on the Sejm’s website states that the bill was submitted by a group of PiS MPs, Piotr Saka, a Solidarna Polska MP, was specified as the rapporteur.

It arises from the justification of the bill that it is intended to ‘decommunise’ the Supreme Court and implement the CJEU judgment of 15 July 2021, in which the CJEU ruled that the illegal Disciplinary Chamber is not a court. Therefore, the Chamber should have been liquidated, but is still operating.

But the bill does not implement the CJEU judgment. Quite the contrary. With it, Solidarna Polska is moving towards a head-on collision with the EU, as well as with President Andrzej Duda and its coalition partner, the Law and Justice party (PiS).

Because the President and a group of MPs from Kaczyński’s party had already submitted their bills to the Sejm, which are supposed to help unfreeze billions from the funds for Poland. Although they provide for the liquidation of the illegal Disciplinary Chamber, they do not fully implement the judgment of the CJEU, because disciplinary cases of judges are still to be examined by neo-judges, only under a different name. Nor do these bills solve the main problem with the rule of law, namely they do not liquidate the neo-NCJ, which gives defective nominations to neo-judges.

The bill submitted today to the Sejm is the most radical, because it involves liquidating the whole of the Supreme Court and removing the legal judges from it. Attorney Michał Wawrykiewicz discusses why it is in conflict with the Constitution and EU law below.

The plan to liquidate the Supreme Court is nothing new. Ziobro has already had bills ready for several years which assume the completion of the assumption of control over the courts. These plans include the liquidation of the Supreme Court and all the ordinary courts (to be replaced with new courts subordinated to the authorities).

Several weeks ago, Ziobro unveiled a plan to flatten the structure of the ordinary courts and referred it to the government for work. Now, put up against the wall by the President’s and PiS’s initiatives, he has revealed his plan for the Supreme Court. Although the bill submitted to the Sejm yesterday had to be amended recently – it does not currently mention new ordinary courts.

This is the fourth bill on the implementation of the CJEU judgment of 15 July 2021. The first was submitted to the Sejm by the opposition parties. Its bill is the only one that assumes the full implementation of all CJEU and ECtHR judgments.

The Sejm can start work on the liquidation of the Disciplinary Chamber during its next session on 23–24 February. It is not known whether the radical bill is also being considered, but, without Solidarna Polska’s support, PiS will not pass a new Act on the Supreme Court.

How Ziobro wants to liquidate the Supreme Court and appoint a shell court

According to the bill officially submitted today by the group of PiS MPs, all current chambers of the Supreme Court will be liquidated. They are to be replaced by a new, small Supreme Court with no more than 30 judges. Today, there are 125 vacancies in the court, 89 of which have been filled. The old, legal judges of the Supreme Court still have the majority. There are 48 judges, while there are 41 neo-judges.

As the number of judges is to be cut by three-quarters, the responsibilities of the new Supreme Court are also to be reduced. In principle, it is to deal with legal issues. The shell Supreme Court is to oversee the legality and uniformity of rulings by the ordinary and military courts. But only within the framework of the extraordinary control of court rulings, because a citizen will no longer be able to file a complaint there.

The new Supreme Court would handle disciplinary cases of judges, attorneys-at-law, prosecutors and legal counsels, but only as a court of the second instance. The corporate disciplinary courts are to be the first instance in all cases. The small Supreme Court would also continue to examine election protests and decide on whether elections are valid or not.

Cases are to be divided into just two new Chambers – the Private Law and Public Law Chambers. Civil cases, labour law and social insurance cases, business and family cases, among other things, would be channelled to the first of these. This Chamber is also supposed to examine extraordinary complaints regarding the cassation of final judgments, which, in principle, should be unjust. The Prosecutor General or the Ombudsman may file such complaints.

The Prosecutor currently uses this extraordinary instrument to contest judgments of people with respect to whom the authorities hold a grudge. For example, he contested two favourable judgments in which the court found for Judge Waldemar Żurek in disputes with his ex-wife. One of these judgments has already been overruled by the Chamber for Extraordinary Control and Public Affairs, which was appointed by PiS. 

The other Chamber is to deal, among other things, with criminal cases, competition protection cases, election protests and disciplinary cases of Supreme Court judges (in both instances) and other disciplinary cases as a second instance court.

How the Supreme Court is to be deprived of citizens’ cases

According to the bill, the shell Supreme Court will no longer examine appeals against final judgments in criminal cases and cassation complaints against final judgments in civil cases. In principle, these matters will be examined by the courts of appeal, which will also be converted into cassation courts.

What will this look like? If a litigant files a cassation or cassation complaint against a final judgment, it will go to a court of appeal. But note: if the verdict issued by the court of appeal is contested, such cassations may be examined by just five courts of appeal in Poland. They are to be the Courts of Appeal in Warsaw, Gdańsk, Kraków, Wrocław, and Poznań.

And one more matter. A court of appeal will not be able to consider a cassation complaint against a judgment passed in that court. Cases will therefore circulate around Poland. For example, cases from the Courts of Appeal in Warsaw and Szczecin would be examined by the Court of Appeal in Gdańsk.

It will also be more difficult to file cassation complaints, because the threshold from which they will be admissible is being raised. Today, the amount of the claim in civil cases must be at least 50,000 zlotys, whereas it is to be increased to 100,000. In employment and social insurance cases, the threshold is currently PLN 10,000, and is to be increased to PLN 20,000.

But not all cassation complaints are to be examined in courts of appeal. The president of the shell Supreme Court and the presidents of the new chambers will be able to take over a cassation to be examined by the Supreme Court themselves, whenever they consider a case to be important. In this way, it will be possible to take over cases that are sensitive to the authorities.

Cassations may also be filed with the Supreme Court by the Prosecutor General, the Ombudsman and the Children’s Ombudsman. Today, the Prosecutor General and the Children’s Ombudsman are appointees of the current authorities. So their cassation appeals may also be selective. In turn, the court of appeal itself will be able to refer a legal issue to the Supreme Court for consideration.

However, the bill does not address the matter of whether the courts of appeal will be able to cope with the pile of new cases to be examined. This is because it does not provide for any increase in their funding, nor does it provide for the addition of new judicial posts.

The legal judges of the Supreme Court are to be removed 

The liquidation of the current Supreme Court means that current judges of the Supreme Court will be removed from it by statute. The bill gives them a choice of two options:

• Retirement. But this only applies to Supreme Court judges with at least 10 years of service in adjudication. So not one neo-judge of the Supreme Court will be eligible.

• Transfer to the new Supreme Court or to the courts of appeal.

However, anyone who wants to adjudicate in the shell court will have to be vetted before the new, politicised NCJ. This means humiliation for the old, legal judges of the Supreme Court. Their chances of being positively vetted are slim, because the ‘hawk’ faction supporting minister Ziobro’s harsh course in the courts is currently in the majority in the neo-NCJ.

The balance of power is unlikely to change in the second term of office of the neo-NCJ, because 14 out of the 15 members of the current Council are running for re-election. But even if the legal judges receive a positive opinion from the neo-NCJ, this is still not binding on the President, who will appoint judges to the new Supreme Court.

Neo-judges will also have to undergo this procedure. And it is already clear that there will not be enough room for them either, as there are currently more neo-judges in the Supreme Court than there are places in the shell Supreme Court. If the president does not fill all the places, the neo-NCJ will announce a recruitment.

It is highly likely that the president would choose only 30 trusted neo-judges. And the rest will be transferred by statute to the courts of appeal (including those who do not declare that they are willing to adjudicate in the small Supreme Court). However, it will be the President who will specify the court to which they will go. In principle, this is to be the court closest to their place of residence. Demoted Supreme Court judges are to retain their current higher salaries and the title of former Supreme Court judge.

The bill is justified by the assurance that all of this is consistent with Article 180, para. 1 of the Constitution, which guarantees judges irremovability from office. It is argued that Article 180, para. 5 of the Constitution allows a judge to be transferred to another court or retired ‘in the event of a change in the structure of the courts or changes of the boundaries of judicial regions’. But the removal of Supreme Court judges was already challenged several years ago by the CJEU, which assessed PiS’s attempt to remove older Supreme Court judges in 2017. PiS then itself withdrew from the idea. Now, Ziobro is returning to it. Interestingly, the bill assumes that lay judges will remain in the Supreme Court – their term of office will not be interrupted.

According to the bill submitted to the Sejm, Piotr Prusinowski, a judge of the Supreme Court and president of the legal Chamber of Labour and Social Insurance, will not only lose his position as president but there will also not be a place for him in the new Supreme Court. Because he is a defender of judges suspended by the illegal Disciplinary Chamber. A similar fate would await the Supreme Court judge standing beside to him and the president of the legal Criminal Chamber, Michał Laskowski. Because the judge, among other things, undermined the status of a neo-judge of the Supreme Court by applying the rulings of the European Courts. Photo Mariusz Jałoszewski

The judge is to be removed from the profession for implementing EU law 

This is not the end of the radical ideas in the bill that was filed today. It reinforces the prohibition already contained in the unconstitutional Muzzle Act for judges to challenge the legality of neo-judges and institutions appointed and staffed by PiS.

This is further evidence that the bill does not implement another CJEU ruling of 14 July 2021. The CJEU issued an interim measure on that date, in which it suspended the Disciplinary Chamber and some of the provisions of the Muzzle Act. The CJEU imposed a record fine of 1 million euros per day on Poland for not implementing this ruling and this fine has already grown to €111 million today.

Furthermore, the bill assumes that if a judge of the Supreme Court refuses to adjudicate with neo-judges, overturns a ruling issued by them or removes them from adjudicating, this will mean that he automatically resigns from the office of judge. And he is to be removed from the judicial profession for that. The President is to terminate his employment. This is another strike at EU law. Because judges today are contesting the status of neo-judges by invoking the judgments of the CJEU and ECtHR, which questioned the legality of the neo-NCJ and the legality of precisely the appointments of the neo-judges.

Wawrykiewicz: The sole objective of the bill is to choke the Supreme Court

We sked Michał Wawrykiewicz, Attorney-at-Law, of the Free Courts initiative, who is involved in defending the rule of law, to comment on the bill on the Supreme Court that was submitted to the Sejm today. Wawrykiewicz tells us: ‘This bill liquidates the Supreme Court in its constitutional form. Meanwhile, the fundamental task of the Supreme Court is to exercise judicial supervision over all the courts in Poland.

Meanwhile, the examination of cassation complaints is to be transferred to various courts of appeal. This will prevent it from ensuring uniformity of judgments. This is to be handled by five courts of appeal. There will be chaos. After all, that is why the Supreme Court was established, so that it could be done in one place, in specialised chambers.’

Wawrykiewicz emphasises: ‘Such a small Supreme Court made up exclusively of neo-judges, would be designed solely for political tasks. Meanwhile, cases for adjudication will come to it in a concessionary manner. It will be possible to use it to pacify decisions of courts of appeal which the authorities do not like from a political or ideological point of view.’

Counsellor Wawrykiewicz says the bill assumes the removal of legal judges of the Supreme Court and this is not compatible with Article 180, para. 5 of the Constitution, as the authors of the bill claim. ‘This article can only be applied when a court in a small town is liquidated and the judges do not want to relocate. But here, this is about judges of the Supreme Court, appointed to this particular office. They cannot be removed and demoted,’ explains Counsellor Wawrykiewicz.

Can the European Commission accept such a bill on the Supreme Court? ‘There can only be one reaction from the EC. Because this bill not only fails to implement the rulings of the CJEU and the ECtHR to date, but furthermore, it finally liquidates the Supreme Court. It creates the systemic suppression of the independence of the judiciary,’ replies Counsellor Wawrykiewicz. And adds: ‘The EC cannot accept this, because it is another step towards the destruction of the autonomy and independence of the judiciary. It not only applies to the Polish justice system – these changes will also influence the whole of the European legal order.’

And another of Michal Wawrykiewicz’s statements: ‘The sole purpose of this bill is to stifle all independence of the Supreme Court and to subordinate the most important court in Poland. It is also intended to humiliate the legal judges of the Supreme Court, who, by their attitude and judgments in recent years, have contributed to the defence of the standards of the rule of law and clearly oppose all this destruction of the current authorities.’