Ziobro’s ‘enforcer’ strikes at Gersdorf. For the resolution of the three chambers of the Supreme Court on neo-judges and the neo-NCJ
Minister Ziobro’s people step up the repression of independent judges. Piotr Schab has just taken steps against former First President of the Supreme Court Małgorzata Gersdorf for allowing legal Supreme Court judges to pass a historic resolution undermining the legality of the neo-NCJ and the Disciplinary Chamber.
Piotr Schab is Minister of Justice Zbigniew Ziobro’s chief disciplinary commissioner. Together with his deputies, Przemysław Radzik and Michał Lasota, he prosecutes judges of the ordinary courts who are known for defending the rule of law. Until recently, Schab was also the president of the important Court of Appeal in Warsaw and, together with his deputy Radzik, they have been unleashing repression against judges applying EU law. Lawyers refer to Schab as Ziobro’s ‘enforcer’.
Now, Schab has started to take on the former legal first president of the Supreme Court, Małgorzata Gersdorf. He is doing this as the so-called extraordinary disciplinary commissioner. President Andrzej Duda appointed him to this position in June 2022. Schab is to handle six cases in the Supreme Court regarding legal Supreme Court judges and neo-judges. These have been transferred to him from the disciplinary commissioner of the Supreme Court.
Schab has summoned Małgorzata Gersdorf to provide explanations. The case horrifies the community of independent judges because it applies to a historic resolution from January 2020 issued by the full membership of the three Chambers of the Supreme Court – the Criminal, Civil and Labour and Social Insurance Chambers.
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 contested. 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.
Now, Schab is demanding that former Supreme Court President Gersdorf explains why she allowed the judges to process this resolution. Schab assumed that Gersdorf should have blocked the adoption of the resolution because Julia Przyłębska’s Constitutional Tribunal had initiated an alleged dispute regarding competence. And the Supreme Court should have refrained from taking any action up to the date of the Constitutional Tribunal’s decision.
Schab assumed that Gersdorf should ‘obligatorily suspend the proceedings in the Supreme Court’. He also believes that the adoption of the resolution by ‘some’ of the Supreme Court judges breached Article 86 of the Act on the Organisation and Method of Proceeding of the Constitutional Tribunal of 2016.
It should be added that these provisions were 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. Meanwhile, Article 86, para. 1 requires the suspension of proceedings if a dispute regarding competence is initiated.
Schab and Radzik harden their line
We asked the president of the legal criminal chamber of the Supreme Court, Michał Laskowski, to comment on Schab’s actions: ‘The processing and adoption of the Supreme Court resolution of January 2020 was not an individual decision made by the court president. All of us [namely the judges of the Supreme Court taking part in issuing the resolution – ed.] decided on this. And what will the proceedings do to us now?’
Judge Laskowski adds: ‘It’s perplexing that the activities were taken up three years after this resolution. Why now? Perhaps this is a political sign of the line being hardened, but why with respect to President Gersdorf? There is no rationale for initiating such proceedings. It was all the judges of the Supreme Court who decided that we should process the resolution. We took the position of the Constitutional Tribunal into account in this matter’.
Why did President Schab suddenly take action on this issue? Was this a signal sent to the legal judges of the Supreme Court to frighten them? Perhaps it’s just a coincidence of dates, although Schab addressed the summons to former First President of the Supreme Court Małgorzata Gersdorf on 17 October 2022. It so happens that an important declaration of 30 legal Supreme Court judges appeared at noon on the same day.
In it, they wrote that they will not adjudicate with neo-judges of the Supreme Court. Because they will be implementing the resolution of the full Supreme Court – the one for which Schab now wants to prosecute Gersdorf – as well as the judgments of the ECtHR and the CJEU. Because there is an established line of judgments that the neo-NCJ is illegal, just like the Disciplinary Chamber and the Chamber for Extraordinary Control and Public Affairs. The status of neo-judges has also been contested repeatedly in the line of judgments.
After all, legal Supreme Court judges were threatened with disciplinary action for this declaration by the press officer of the Supreme Court, Aleksander Stępkowski, who is also a neo-judge. It transpires that the term of office of the current disciplinary commissioner of the Supreme Court is coming to an end. And the neo-judges of the Supreme Court may want someone from their ranks to be the new disciplinary commissioner in January 2023.
A stricter course with respect to judges applying ECtHR and CJEU judgments can also be seen in the important Court of Appeal in Warsaw. Its president has been Schab and his deputy has been Radzik since the summer. And they started their rule with the transfer of three judges applying EU law from the criminal division to the labour division as punishment. They do not like the fact that the judges contest the status of the neo-judges and do not want to adjudicate with them.
The judges in question are Ewa Leszczyńska-Furtak, Marzanna Piekarska-Drążek and Ewa Gregajtys. Disciplinary action is being taken with respect to all of them for this. Recently, reprisals affected another judge from this court, Dorota Tyrata. Disciplinary action is also being taken against her, together with Piekarska-Drążek, for applying EU law and for issuing a ruling that is favourable for Judge Igor Tuleya, in which they challenged the legality of the Disciplinary Chamber.
A harder line with respect to the EU and a final crackdown on independent courts was recently – once again – announced by PiS chairman, Jarosław Kaczyński.
How the Supreme Court’s historic resolution was issued
We should reiterate that the historic resolution of the Supreme Court was issued in January 2020. PiS and Minister of Justice Zbigniew Ziobro have been taking control of the courts in stages since the start 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. While 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 of 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 letters 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 experienced reprisals for this. Minister Ziobro’s disciplinary commissioner initiated disciplinary action with respect to him in a flash 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 in 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, the president of the Constitutional Tribunal, Przyłębska, informed President Gersdorf of the Supreme Court 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 Marshall of the Sejm approached the Constitutional Tribunal in August 2017 with a request to investigate the alleged dispute regarding competence 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 dispute regarding competence 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 dispute regarding competence. 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 – are not 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
The article was published in Polish at OKO.press.