The European Commission, the Council and the European Parliament are not known for taking decisions without thorough reflection and discussion. It is particularly careful when investigating actions of member states and will not lightly take member states to court. Shortcomings in the Rule of Law in countries with whom we share membership of the European Union are especially painful. Some Polish government’s policies, alas, fit the shoe. Poland profited hugely from membership of the European Union but its government is now bent upon destroying its foundations by extending governmental oversight of the judiciary to the point that it cannot be considered independent anymore. The Polish government apparently does not understand the importance of an independent judiciary for the country and for the European Union, as Polish judges are also EU-judges, tasked with applying European law. Exaggerated words in flat contradiction to what the Polish government is about? Let us see.
The Polish government will be among the first to agree that the rule of law is a fundamental, for Poland and for the EU. Governments, national authorities, the European Union as such, and its Institutions are bound by it. Democracy itself expresses itself within the framework of the law. The Polish government cannot but be aware of this, governing a country which has experienced the Rule of the Communist Party. However, it can not refrain itself from destroying the independence of the judiciary, rather the judiciary itself. What is a dependent judiciary but a tool of the ministry of Justice? The Polish government should consider whether it risks repeating the wrongful ways of the Communist Party as keeper of the Rule of Law. The Communist Party introduced the concept of “unity of the state’s power” into the 1952 Polish Constitution. It stood in judgement of each judge. Is the Disciplinary Chamber the new long arm to force judges to dance to the Government’s discretion?
The key question is whether the Disciplinary Chamber can discipline a judge for the content of his juridical decision. The European Court of Justice examined the question upon a complaint of the European Commission and found that Article 107 § 1 of the Polish Law on the ordinary courts and Article 97 §§ 1 and 3 of the Polish Law on the Supreme Court extend the disciplinary power of the Disciplinary Court to the content of the judicial decision itself. Reference: Judgement of the Court (Grand Chamber) 15 July 2021 8/24 https://curia.europa.eu/juris/document/document.jsf;jsessionid=7E3DFE35EB08EF9D3AF5558ACE393FDB?text=&docid=244185&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1777595
The Disciplinary Chamber rules, in first and second instance, on disciplinary cases concerning judges of the Sąd Najwyższy (Supreme Court). Depending on the case, it rules either at second instance or both at first instance and at second instance, in disciplinary cases concerning judges of the ordinary courts. It determines in which disciplinary court these cases are heard at will. It is judge in disciplinary cases regarding members of the Disciplinary Chamber itself. Does this Chamber now offer all the necessary guarantees as regards its independence and impartiality?
It cannot, first because of the way it was created, which could be regarded as having characteristics common to a powergrab. First, a law was adopted to evict the 15 members from the National Council of the Judiciary who had been chosen by the judges themselves, and we may presume, were trusted by the judges who chose them. The Polish executive and parliament are now responsible for 23 of the 25 appointments in the reconstituted National Council of the Judiciary. It has the sole right to propose juges of the Disciplinary Chamber. In order to preclude any continuity, sitting Supreme Court judges are barred from becoming judges in the Disciplinary Court. Later transfers of Supreme Court judges to the Disciplinary Court are possible. It coincided with changes in the obligatory retirement age of judges while giving the president the discretionary power to deviate from this rule in particular cases. One judge has to retire, another not, casting doubt on the reasons of the lowering of the retirement age. References: Judgement of the Court (Grand Chamber) 15 July 2021, see link above. para 66 for the KRS, para. 94 for the prohibition of the transfer of judges from one chamber to another. For reasonable doubt see para 110.
The European Court of Justice found: “The mere prospect, for judges of the Sąd Najwyższy (Supreme Court) and of the ordinary courts, of running the risk of disciplinary proceedings which could lead to the bringing of proceedings before a body whose independence is not guaranteed is likely to affect their own independence (order of 8 April 2020, Commission v Poland, C‑791/19 R, EU:C:2020:277, paragraph 90)”. “Disciplinary measures may entail serious consequences for the lives and careers of the members of the judiciary who are penalised. As the European Court of Human Rights has also pointed out, the judicial review carried out must thus be appropriate to the disciplinary nature of the decisions in question. When a State initiates such disciplinary proceedings, public confidence in the functioning and independence of the judiciary is at stake; in a democratic State, this confidence guarantees the very existence of the rule of law (see, to that effect, ECtHR, 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, § 196, and ECtHR, 9 March 2021, Eminağaoğlu v. Turkey, CE:ECHR:2021:0309JUD007652112, § 97)”.
Though a Chamber of the Supreme Court, the European Court of Justice noted that it had a particularly high degree of organisational, functional and financial autonomy in comparison with the other chambers of that court, as well as that its members are paid 40% more than the other judges of the Supreme Court without valid justification.
Lastly, Article 112b § 5 of the Law on the ordinary courts violates the non bis in idem principle by giving the minister of Justice the authority to re-appoint a Disciplinary Officer (a prosecutor) in the same case when there is a final ruling. This article also allowas that a judge may once again be subject to such investigations and proceedings in the same case after a judge has been the subject of an investigation and disciplinary proceedings which have been closed by a final ruling. Even worse, a judge may permanently remain under the potential threat of such investigations and proceedings, notwithstanding the fact that such a ruling has taken place, is, by its very nature, liable to prevent that judge’s case from being heard within a reasonable time. It is clear that this article can be used as a form of political pressure. I already referred to the most worrying aspect of this court, the vagueness regarding the actions which may fall under its jurisdiction. The mere fact that a judge asks a prejudicial question to the European Court of Justice may put the judge in the defendant’s chair in front of the Disciplinary Court.
The Prime Minister of Poland, Mr. Morawiecki, stated in his letter to the “Heads of Governments and the Presidents of the European Council, the European Commission and the European Parliament on relations between national law and European law” among other statements that “Poland respects this (European) law and recognizes its primacy over national law, pursuant to all our obligations under the Treaty on European Union”. Let’s take the Prime Minister’s words at face value. Then, Prime Minister, heed the judgment of the European Court of Justice and rid Poland and the EU from this Disciplinary Chamber!
The judgment of the European Court of Justice is to be found on https://curia.europa.eu/juris/document/document.jsf;jsessionid=7E3DFE35EB08EF9D3AF5558ACE393FDB?text=&docid=244185&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=177759