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A chamber for special tasks. This is how power entrenches itself in the Supreme Court - Krystian Markiewicz, Bartłomiej Przymusiński

A chamber for special tasks. This is how power entrenches itself in the Supreme Court

Krystian Markiewicz Bartłomiej Przymusiński


Public opinion has focused its attention at the Supreme Court Disciplinary Chamber, which prosecuted judges. Meanwhile, the authorities have another tool in the Supreme Court that is less talked about.

Krystian Markiewicz is the president and Bartłomiej Przymusiński is the spokesman for the Polish Judges` Association 'IUSTITIA'.

The phone rings in the office of the chairman of a major political party. "We have lost," says the voice on the receiver. The chairman does not answer, he slowly hangs up the phone. In a moment he picks it up again and, in an irritated voice, gives the order "Connect me with our lawyers". A few hours later, a PAP (Polish Press Agency) dispatch circulates throughout the country - the losing party has lodged an election protest and is demanding that the parliamentary elections be declared invalid.

The portals' headlines flash on the screen in an office on Krasińskich Square in Warsaw. It is not without reason that the tenant of the office is nervous on this day. If this result holds, he could lose his, it seemed, secure job. He turned a blind eye to the fact that the competition in front of the so-called neo-NCJ was a farce, after consulting with President of Poland Andrzej Duda's advisors he took back the nomination even though the Supreme Administrative Court halted the effectiveness of the neo-NCJ resolution, he endured criticism from judicial circles, he ignored the fact that the Strasbourg Court ordered him to pay damages for seven of his judgments. Now it will come to account for all this. The clock strikes 12 o'clock. The whole Chamber begins to deliberate on the validity of the election. "At the end of the day, we are all in the same situation, it is still all in our hands". - With this thought, he puts on his robe and closes the door of the room.

This scene is only literary fiction for the time being, but it could turn out to be a grim prophecy and a harbinger of real events.

The Supreme Court like a cake to share

A few years ago, the United Right political camp treated the Supreme Court like a tasty cake to share. Ziobro (Minister of Justice, Prosecutor General) got the defunct Disciplinary Chamber and President Andrzej Duda got the Chamber of Extraordinary Control and Public Affairs, which was being created from scratch. Public attention was focused on the Disciplinary Chamber, as it spectacularly prosecuted judges inconvenient to the authorities. In its shadow hid the other chamber. It was not supposed to be like a hammer, more like the long tentacles of an octopus, concentrating the adjudication of the most important cases. It was headed by Andrzej Duda's colleague from university, Joanna Lemańska.

The name Chamber of Extraordinary Control and Public Affairs evokes associations with the Supreme Chamber of Control, but let us not be fooled. The very word 'Extraordinary' indicates that it is a chamber for special tasks. Without its ruling, the elections will not be over - it is the chamber that is supposed to determine whether the elections were valid or whether they should be repeated.

Already in 2017, when the political attack on the judiciary began, Iustitia pointed out that the aim of the takeover of the Supreme Court by political appointees was to control who would rule on the validity of elections and how. The slogan with which the judges then stood was: "Free people, free courts, free elections" - was an accurate diagnosis of the objectives of power. What is the situation today?

According to the resolution of the combined chambers of the Supreme Court and the judgments of the European Court of Human Rights in Strasbourg, those appointed to the Extraordinary and Public Accounts Chamber should not pass judgments. However, they do not do anything about it, they deliberately violate the European Convention on Human Rights and the resolution of the combined chambers. We are about to wake up to the fact that the validity of elections will depend on their decisions. No one is as interested as they are in concreting the current political set-up, because it gives them the certainty of staying in office.

The Chamber of Control will rob you of the law

In the Chamber of Control, so-called extraordinary complaints are heard. This is a new legal measure introduced by PiS and the President. In a nutshell, the idea is that it can be used to overturn or amend a judgment in any case - even though it is final. How does it work?

In the case of Judge Waldemar Żurek, concerning his property settlement with his ex-wife, the courts of two instances ruled. The verdict was final, in favour of Waldemar Zurek. However, this is where Zbigniew Ziobro stepped in, filing an extraordinary appeal in favour of Waldemar Żurek's ex-wife. The Control Chamber reversed the ruling by 180 degrees, and Waldemar Żurek had nowhere else in Poland to appeal against its ruling.

In the Lech Wałęsa case, the Court of Appeal in Gdańsk ruled that Krzysztof Wyszkowski was to apologise to him for calling him a collaborator of the SB (communist secret police). Zbigniew Ziobro complained to the Chamber of Control, which reversed the ruling by 180 degrees. Lech Wałęsa had nowhere else to appeal against its ruling in Poland.

In the Lech Wałęsa case, the Strasbourg Court has already signalled the opening of a pilot procedure. This is an extraordinary procedure, a signal from the Court that it sees a systemic problem with the activities of the Extraordinary Control and Public Affairs Chamber. The Court has also temporarily barred it from ruling on another extraordinary complaint, filed by Zbigniew Ziobro, regarding a judgment ordering Judge Żurek's ex-wife to apologise.

The Chamber of Control will defend neo-judges

The defunct Disciplinary Chamber has disappeared, but the problem of neo-judges remains. To pull the wool over the eyes of the European Commission, the 2022 Act introduced the so-called independence and impartiality test. It provides that a judge about whom there are doubts as to whether he or she is impartial and independent can be tested in the Control Chamber. Yes, it is no coincidence that the neo-judges from the ordinary courts are to be judged by other neo-judges, precisely those from the Chamber of Control. They themselves were appointed in the same flawed procedure, and in addition - the handing in of their appointments was forbidden by the Supreme Administrative Court, but Andrzej Duda, making nothing of this, hastily appointed them to their posts.

Neo-judges are persons appointed to their positions by President Andrzej Duda at the request of the current political National Council of the Judiciary. In their appointment, the opinion of the judges' self-government was most often not required, and the National Council of the Judiciary itself was politically appointed in 2018 by the parliamentary majority (previously, 15 out of 25 members of the Council were elected by the judges' self-government). The connections of the current members of the Council with the Minister of Justice are evident - they received from him the functions of presidents, delegations to higher courts - for sitting in the Council and additional functions they receive from the state coffers even an extra few hundred thousand zlotys per year. In addition, for appointments to the Supreme Court, the possibility of appeals by other contestants was excluded. For this reason, the Supreme Administrative Court suspended the effectiveness of the NCJ's resolutions, but Andrzej Duda disregarded the NSA's decision and handed out the appointments.

According to the law, in the so-called impartiality test, allegations about a judge cannot be based on a mere defect in the appointment. This means that a citizen who suspects that political connections were behind a judge's appointment would have to have an investigative apparatus to prove such connections.

The €1 million per day fine we pay for, among other things, the fact that it is the Control Chamber that adjudicates requests for the exclusion of judges based on faulty appointments. This penalty already amounts to more than €350 million.

Hidden files and revised composition to protect the Chamber of Control

In October 2021. The Court of Justice of the EU in Luxembourg answered a question from the Polish Supreme Court. The question was whether an appointee to the Chamber of Control could make a final ruling that closed the case on the exclusion of a judge. The Court's answer, as per Luxembourg practice, was very clear and firm. It concluded that such a verdict, delivered by a neo judge from the Chamber of Control, had to be disregarded and declared null and void. The case was to go to a seven-judge panel of the Civil Chamber of the Supreme Court, which was sending the question. The situation proved to be a ticking bomb for the neo-judges in the Supreme Court, including the presidents of the Supreme Court. First President Małgorzata Manowska (also a neo-judge in the Supreme Court) and then President of the Civil Chamber Joanna Misztal-Konecka did not want to hand over the file to the reporting judge Prof. Karol Weitz. This was followed by the unprecedented situation of a change in the composition of the seven judges, which resulted in four seats being taken over by neo-judges. To this day, the case has not reached a conclusion because the legally appointed judges do not want to break the law and rule with the neo-judges.

In response to the unlawful change of composition and the exclusion of judge Dariusz Zawistowski from consideration, the disciplinary ombudsman of the Supreme Court initiated disciplinary proceedings and brought charges against Supreme Court Civil Chamber President Misztal-Konecka. The president then stepped in and eliminated this ombudsman from the case by appointing an extraordinary disciplinary ombudsman - neo judge Piotr Schab, a man of Zbigniew Ziobra's renown for his repressive actions against judges. He took over the case regarding the change of composition in no time. It is already clear that, for the time being, none of the neo-judges will have a hair fall from their heads.

Ombudsman Schab has gone further - he recently initiated proceedings against former First President of the Supreme Court Prof. Małgorzata Gersdorf in connection with the fact that she convened a meeting of the three combined chambers, which on 23 January 2020 issued a resounding resolution indicating that the neo-judges of the Supreme Court, including those in the Chamber for Extraordinary Control and Public Affairs, cannot issue any valid ruling. Thus, the alliance of the President and Minister Ziobra and the actions of their SN neo-presidents have allowed the neo-judges in the Extraordinary Chamber to continue to function relatively unhindered.

The Chamber of Control seizes new competences

If new legislation is passed that touches on areas important to the Law and Justice Party, one can be almost certain that judicial control will be diverted to the Chamber of Control. Here is what else this Chamber can do:

- decides on matters relating to media freedom, by reviewing cases in which an appeal has been lodged against the decision of the Chairman of the National Broadcasting Council;

- has competence with regard to public procurement, not excluding procurement using EU funds;

- examines appeals against resolutions of the National Council of the Judiciary on appointments, the status of judges, their retirement status, the lengthiness of proceedings.

The Chamber of Control also interferes with such court rulings that concern freedom of assembly. In October 2022, it stood up for the march of nationalists. Although the courts of two instances ruled that the Mazovian Governor could not recognise the march as a cyclical event, the Chamber deleted these rulings. This put Varsovians in a situation where, on 11 November, they had to witness another demonstration by the nationalists and it was not possible to organise another form of Independence Day celebration at that place and time.

The president is nor God (neither Caligula), from lawlessness no law is born

Politicians and the political NCJ fiercely defend the so-called presidential prerogative, which allegedly consists of the right to hand out judicial appointments without any possibility of control. This is an untenable concept in a democratic state, as it would imply absolute presidential power. A citizen cannot be deprived of the right to an impartial and independent court, the Luxembourg Court pointed out. The fact that someone has received an appointment as a result of a breach of the law does not mean that he or she will constitute a court - for this is determined not only by the president's signature, but also by the correctness of the entire procedure preceding it. The president is not above the law and cannot, contrary to the constitution, make someone a judge, like Caligula, who made a senator out of a horse.

The authority cannot hide behind the principle of non-removability of judges. These arguments are merely a smokescreen and do not detract from the intention to disregard or violate the rule of law. Law is not born of lawlessness. We cannot tolerate the breaking of the law in the staffing of a court of last resort, a court which, as we have shown, can be used as a transmission belt for power. The existence of the Control Chamber exacerbates the pathology of the politicisation of the judiciary.

There would be no free people without free courts, there will be no free elections with neo-judges in the Control Chamber. The Disciplinary Chamber deprived us of billions of euros, the Chamber of Control can take away our freedom. It is time to wake up.