"Scandalous repressions against the former President of the Supreme Court Gersdorf. Ziobro's man is pursuing her for the historic resolution of the Supreme Court." - translationa of the publication by Mariusz Jałoszewski
The former President of the Supreme Court, Małgorzata Gersdorf, was charged with an absurd disciplinary allegation about issuing a historic resolution by legal judges of the Supreme Court. The accusation was made by Piotr Schab, Ziobro's man and spokesman for special affairs of President Duda.
This case will reverberate deeply in the European Union. For the first time repression hits the First President of the Supreme Court. The case is scandalous and this will also be important in the EU, because Małgorzata Gersdorf was charged with disciplinary charges for the historic resolution of January 23, 2020 issued by almost all legal judges of the Supreme Court.
In this resolution, the Supreme Court judges questioned the legality of the new, politicized National Council of the Judiciary and its nominations of neo-judges, including the neo-judges of the Supreme Court. The legality of the Disciplinary Chamber was also undermined. The resolution has the force of a legal principle and is still binding. It is applied by Supreme Court judges and common court judges in their judgments. And on this basis, they undermine the status of neo-judges and the judgments issued with their participation.
Disciplining President Gersdorf for this resolution now may thwart the plans of the Morawiecki’s government to quickly unlock billions of euros for Poland from the National Recovery Plan. Because when the head of the Ministry of Foreign Affairs makes a deal with the European Commission, a strong signal comes from Poland from Ziobro's people about the intensification of repression against independent judges, including those from the Supreme Court.
The disciplinary charge against Małgorzata Gersdorf was made by the "famous" Piotr Schab, who, as the disciplinary spokesman for Minister Ziobro - together with deputies Przemysław Radzik and Michał Lasota - is prosecuting independent judges for anything. In this case, however, he acts as an extraordinary disciplinary officer. He was appointed to this function in June 2022 by President Andrzej Duda. And he commissioned him to conduct 5-10 proceedings concerning legal Supreme Court judges and neo-judges of the Supreme Court. These cases were transferred from the disciplinary spokesman of the Supreme Court - the Gersdorf case was initiated by a "citizen" denunciation.
At the end of October 2022, Schab first called on the former President of the Supreme Court, Małgorzata Gersdorf, to provide explanations. And now he's charged her with a disciplinary charge. The allegation is dated November 29, 2022. Schab accuses her of an official misconduct under Article 72 paragraph 1 of the Act on the Supreme Court. This provision speaks of an obvious and blatant violation of the law.
For which Gersdorf is prosecuted by special spokesman Schab
Schab accuses the former President of the Supreme Court that on January 23, 2020, she did not obligatorily suspend the proceedings concerning the issue of a historic resolution by the full composition of the Supreme Court - specifically by three combined legal chambers. He believes that Gersdorf should suspend the proceedings in this case, because the Marshal of the Sejm Elżbieta Witek applied to the Przyłębska Tribunal to initiate an alleged dispute over powers between the Supreme Court and the President and the Sejm. Witek's motion was to block the Supreme Court from issuing a resolution.
Schab believes, however, that Gersdorf violated the institution of mandatory suspension and negated the "legal effect of the application for settlement of the dispute over powers in the form of suspension of proceedings [before the Supreme Court - ed.]. Schab further alleges that Gersdorf led to the issuance by “some of the Supreme Court judges of a resolution in the matter covered by this dispute, which clearly and flagrantly violated the provision of Art. 86 sec. 1 of the Act of November 30, 2016 on the organization and procedure of the Constitutional Tribunal”.
This provision states that the initiation of a dispute over powers before the Constitutional Tribunal results in the obligatory suspension of the proceedings before the authorities conducting the dispute over powers. That is, the Supreme Court should automatically suspend the case regarding the issuance of a resolution.
Article 86(1) was adopted by “Law and Justice”, which immediately after winning the 2015 elections began to take over and pacify the legal Constitutional Tribunal. And “Law and Justice” had already used this article earlier, initiating an alleged dispute over powers, in order to block the examination of the appeal against the conviction of the former head of the Central Anti-Corruption Bureau, Mariusz Kamiński. Then he succeeded, so a similar maneuver was used to block the historic resolution. To no avail, because the Supreme Court decided that there was no conflict of powers.
Judge Prusinowski: 59 Supreme Court judges should be charged
In this case, President Gersdorf has three defenders. These are: the president of the legal Chamber of Labor and Social Security Piotr Prusinowski, judge of the Supreme Court from the Criminal Chamber Jarosław Matras and attorney Piotr Zemła.
We asked Supreme Court judge Piotr Prusinowski for a comment. "We hope that the case will go to court soon. The disciplinary charge is inconsistent,” says OKO.press Prusinowski.
And further: “The 1st President of the Supreme Court is accused of not suspending these proceedings. In Poland, however, it is the courts that issue rulings, not the first presidents of the Supreme Court. Piotr Schab did not notice this. And there is, after all, the minutes of the meeting of the three chambers of the Supreme Court that issued the resolution. It shows that President Gersdorf presented - to all the Supreme Court judges gathered at that time - Marshal Witek's application for a dispute over powers.
And all Supreme Court judges agreed that this is not an obstacle to the proceedings. A procedural decision has not been made as to whether we suspend the proceedings or refuse to suspend them. We just started the process. By acclamation, we decided that there were no grounds for interrupting the proceedings”.
Prusinowski emphasizes in strong words: "This disciplinary charge should be against the Supreme Court or the 59 Supreme Court judges who issued this resolution."
How the historic resolution of the Supreme Court was issued
“Law and Justice” and Minister of Justice Zbigniew Ziobro have been taking control of the courts in stages since the beginning of the 2015 elections. First, they took control of the Constitutional Tribunal and the prosecutor's office. Then, during their term of office, they dissolved the legal National Council of the Judiciary and replaced it with a new National Council of the Judiciary, which “Law and Justice” MP’s filled mainly with associates of Minister Ziobro. The National Council of the Judiciary is crucial, because it decides who will become a judge, who will be promoted, and will fill vacant positions in the Supreme Court.
From the very beginning, however, there were legitimate allegations that these changes are contrary to the Constitution and European law, which guarantees citizens the right to a trial before an independent and impartial court, established by law. Because the National Council of the Judiciary is not an independent body, its composition is also contrary to the Constitution. And a politicized body cannot make legal appointments for judges.
There were also allegations against the Disciplinary Chamber, which was supposed to help “Law and Justice” expel independent judges and prosecutors from the profession. Because it is a special court, which the Constitution does not provide for in times of peace. In addition, mainly Ziobro's co-workers were sent there.
On January 15, 2020, the President of the Supreme Court, Małgorzata Gersdorf, decided that the three legal Chambers of the Supreme Court - Criminal, Civil, and Labor and Social Security - would resolve the legal issue regarding the status of the neo-NCJ, the Disciplinary Chamber and the neo-judges. Neo-judges of the Supreme Court from the Disciplinary Chamber and from the Chamber of Control were excluded from participating in the adoption of the resolution. Because it was about their status. The meeting of the full composition of the three legal Chambers is scheduled for January 23, 2020.
“Law and Justice” reacted quickly to this. On January 21, 2020, the Marshal of the Sejm, Elżbieta Witek, filed a motion with the Przyłębska’s Tribunal to resolve the alleged dispute over powers between the Supreme Court and the President of Poland and the Sejm. It was about the Supreme Court's ability to assess the status of neo-judges and the status of institutions appointed and staffed by “Law and Justice”. Therefore, the president of the Przyłębska’s Tribunal informed the President of the Supreme Court Gersdorf that in her opinion the case of the legal issue concerning the neo-NCJ, neo-judges and the Disciplinary Chamber should be suspended.
But the Supreme Court did not let itself be checked. The sitting of the full legal composition of the Supreme Court was held on January 23, 2020 and a historic resolution was issued, which judges of the Supreme Court must still apply to this day. The case was proceeded because it was found that there was no conflict of jurisdiction. That way President Gersdorf wrote back to Przyłębska before the meeting.
Then, on January 28, the Constitutional Tribunal suspended the application of the Supreme Court's resolution, and in April 2020, the Constitutional Tribunal decided that the Supreme Court's resolution was not binding. It’s only a decision, because the adjudicating panel of the Constitutional Tribunal included the so-called double referees. And according to the jurisprudence of the European Court of Human Rights, the decisions of a panel with such persons - defective persons elected to the Constitutional Tribunal by the Sejm, for previously legally occupied seats - are not judgments. However, the decision of the Constitutional Tribunal did not stop the application of the resolution of the Supreme Court by judges. They still refer to it, omitting the decision of the Constitutional Tribunal.
Bringing disciplinary charges against Gersdorf may be used to hit the legal judges of the Supreme Court and serve as a pretext for an attempt to change this resolution by the neo-judges of the Supreme Court, half of whom are already members of the Supreme Court.