Report on the activities of Polish authorities after the rulings of the Court of Justice of the EU of July 14, 2021 in case C-204/21 and of July 15, 2021 in case C-791/19:
1. The effects of the decisions of the Disciplinary Chamber of the Supreme Court concerning judges Igor Tuleya and Pawel Juszczyszyn have not been annulled. Despite the judges' demand to be allowed to take up their official duties, despite favorable rulings of Polish courts, the presidents of the courts, who are subordinate to the Minister of Justice and are completely dependent on him did not allow judges perform their duties; The unlawfully forbidden remuneration, which they have been deprived of, was also not returned to them: judge Paweł Juszczyszyn for 556 days and judge Igor Tuleya for 268 days. Thus, the interim order of July 14, 2021 in relation to Igor Tuleya and the CJEU judgment of July 15, 2021, which had retroactive effect, against Paweł Juszczyszyn, were not implemented. On July 20, 2021, Judge Igor Tuleya submitted a letter to the president of the Reginal Court in Warsaw. He has referred to the CJEU ruling, declared his readiness to adjudicate and asked for immediate admission to perform his official duties as a judge of the Regional Court in Warsaw. In return Przemyslaw Radzik - the vice president of the Regional Court in Warsaw, in his letter of July 23, 2021, informed that "due to the resolution of the Supreme Court - Disciplinary Chamber of November 18, 2020 (...) on the permission to hold you criminally responsible and suspending in official activities, the said request may not be taken into an account "(letter attached). Pawel Juszczyszyn, referring to the judgment of the CJEU, also addressed a letter to Maciej Nawacki the president of the District Court in Olsztyn requesting to be admitted immediately to exercise all official rights and duties, including the performance of judicial functions. President Maciej Nawacki, despite the ruling of the CJEU of 15 July 2021 in the case C-791/19, did not allow judge Paweł Juszczyszyn to perform his judicial duties.
2. Regarding the effects of the ruling on the activities of the Disciplinary Chamber:
a. On July 16, 2021, Małgorzata Manowska - the First President of the Supreme Court made a statement in which shhe has stated, that European law does not cover the area of the organization of the judiciary - Member States have competence in this respect, which was confirmed in the judgment of the Constitutional Tribunal of July 14, 2021 in case no. P 7/20. In her opinion, the Disciplinary Chamber of the Supreme Court is fully independent in exercising its statutory jurisdiction, and the judges of this Chamber are completely independent in adjudication.
b. M. Manowska, despite the fact that the CJEU judgment is addressed to the Polish state and each authority is obliged to execute it, including the First President of the Supreme Court, started consultations with the Prime Minister and other politicians of the ruling majority. President Manowska in a press interview published on July 22, 2021 stated: “I am constantly wondering what further steps should be taken. I am waiting for information from the Prime Minister. The government is responsible for relations with the European Union and the judgment has been notified to the government. After being officially informed, I will take action. " Later in the interview, she expressed the view that "these decisions must be scrutinized by the government. We have to cooperate. The government has to decide what it is up to, then I will act.
c. Next, the First President of the Supreme Court, Małgorzata Manowska, addressed President Andrzej Duda, Speaker of the Sejm (Lower Chamber of the Parliament) Elżbieta Witek, Speaker of the Senate Tomasz Grodzki and Prime Minister Mateusz Morawiecki a letter in which she draws attention to the actual paralysis of the system of disciplinary liability of judges resulting from the CJEU rulings. In her opinion the judgments of the CJEU show that the allegations against the Polish system of disciplinary liability do not concern the adjudication in the Disciplinary Chamber, but only the statutory shortcomings on the basis of which this chamber operates, and therefore immediate, well-thought-out statutory changes in this respect are necessary. .
d. The First President of the Supreme Court, Małgorzata Manowska, in two orders of August 5, 2021 (No. 90/21 i 91/21) has limited the activity of the Disciplinary Chamber.
- disciplinary cases submitted to the Disciplinary Chamber (or to any other chamber), for the waiver of immunity, in the field of labour law and regarding the retirement of judges, will be referred to the secretariat of the First President and kept there until November 15, 2021;
- Tomasz Przesławski – the President of the Disciplinary Chamber is to decide whether to freeze the cases that were received by the Disciplinary Chamber before August 5;
- as far as the cases already assigned are concerned Przesławski will be able to ask judges to “refrain from adjudicating” as part of their independence.
Despite these orders, the Disciplinary Chamber is still adjudicating and none of the cases has been frozen. Disciplinary Chamber judge Piotr Falkowski informed the media that there are 73 such cases on the desks of 12 judges of the chamber, of which 18 have already set deadlines. https://wiadomosci.gazeta.pl/wiadomosci/7,114883,27448269,manowska-zaapelowala-do-sedziow-id-by-wstrzymali-sie-z-orzekaniem.html
e. On August 10, 2021, M. Manowska issued order No. 93/2021, which was not disclosed at first, only "due to numerous inquiries" was published on the website of the Supreme Court. The text of the order shows that M. Manowska gives the decision to the President of the Disciplinary Chamber also in cases that will be received by the Supreme Court after August 5, 2021 in the scope of applications for waiver of immunity or temporary detention of judges in a 24-hour procedure - when they were caught red-handed for serious crimes and were detained. The President of the Disciplinary Chamber will assess whether "there is no need to take urgent measures"
f. On August 11, 2021, Manowska issued order No. 96/21 on appointing the duty hours of judges to examine the prosecutor's requests for consent to criminal liability and temporary arrest of judges (...), under which in the period from August 11, 2021 to on August 22, 2021, she appointed Wiesław Kozielewicz, judge of the Supreme Court (Criminal Chamber).
g. The actions of M. Manowska are inconsistent and incoherent. Her public statements indicate the dependence of the decisions made on the position of the executive.
h. On August 3, 2021, justifying the decision to suspend a judge from his duties (reference number I DO 8/21), Piotr Niedzielak from the Disciplinary Chamber stated that his duty is to continue adjudicating in disciplinary cases and in matters relating to application for permission to bring a judge to criminal liability. Moreover, in the justification of the decision in this case, it was stated that "the state cannot act "at the beck and call of the CJEU", react immediately to all its recommendations, regardless of national law. The state acts through its organs competent in the issues determined by the judgments of the CJEU. This must be in accordance with and under national law. No ruling by the CJEU abolishes the constitutional norm, according to which the Constitution is the supreme law of the Republic of Poland, which means that all acts adopted by organs of public authority must comply with the Constitution. Therefore, all CJEU rulings may be implemented only to the extent that it is constitutionally possible"
i. On August 3, 2021, other cases were also examined by the Disciplinary Chamber:
- reference number II DO 41/21
- reference number II DOW 30/21, II DOW, II DIZ 47/21
j. On August 11, 2021 - case reference number I DSK 2/21
k. On August 12, 2021, the Disciplinary Chamber resolved the application for consent to bring the judge to criminal liability - Jarosław Duś examined the request of the representative of a man who wanted the Disciplinary Chamber to revoke the immunity of a judge from West Pomerania for slandering him in an previous civil case for the protection of personal rights (ref. no. I DI 35/21). Jacek Wygoda, on the other hand, heard a disciplinary case against the prosecutor for drunk driving (ref. no. I DSK 11/21). In addition, on that day also cases were heard: ref. no. I DIO 6/21, ref. no. I DSK 13/21.
l. On August 26, 2021, the case ref. no. IDI 33/21 is scheduled (the application for consent to hold judges criminally responsible)
on August 31, 2021, the case ref. no. II DIZ 39/21 is scheduled (complaint by the defendant's defense attorney and the District Prosecutor's Office in S. against the resolution),
m. On August 31, 2021, the case ref. no. II DIZ 39/21 is scheduled (complaint by the defendant's defense attorney and the District Prosecutor's Office in S. against the resolution),
n. On September 2, 2021 – case ref. no. II DOW 13/21 is scheduled (the appeal of the Minister of Justice, Deputy Disciplinary Prosecutor, National Council of the Judiciary and the accused (judge) against the judgment)
o. On September 6, 2021, case ref. no. I DI 21/21 (the adoption of a resolution on the permission to prosecute a judge of the Supreme Court)
p. On August 13, 2021, the media reported that Małgorzata Manowska intends to transfer the judges of the Disciplinary Chamber to the Criminal Chamber of the Supreme Court, which was opposed by the President of Michał Laskowski the President of the Supreme Court Criminal Chamber.
3. Concerning the effects of judgments on the operation of the supreme Court Extraordinary Control and Public Affairs Chamber
The Extraordinary Audit and Public Affairs Chamber, despite depriving it of its powers by a decision of the CJEU (point e - suspension of the application of the provisions transferring the exclusive competence of the Extraordinary Audit and Public Affairs Chamber to the consideration of allegations of a judge's lack of independence or lack of independence of a court), acts in the same way as before and The 1st President of the Supreme Court did not take any orders regulating the functioning of the Chamber after the rulings of the CJEU of 14 and 15 July 2021;
4. Regarding defectively initiated and conducted disciplinary proceedings.
No actions have been taken regarding the disciplinary courts and disciplinary commissioners subordinate to the Minister of Justice in order to remove the defectiveness of disciplinary proceedings, consisting in the appointment of the court competent to hear the disciplinary case by the President of the Disciplinary Chamber, which violates the right to a court established by law. Orders on the appointment of disciplinary courts are still issued by the President of the Disciplinary Chamber. Is should be noted that the order of August 6, 2021, the Disciplinary Court at the Court of Appeal in Lublin was assigned as the court competent to hear in the first instance the disciplinary case of Piotr Gąciarek the judge of the Regional Court in Warsaw (order in the case of DO 28/21 of August 6, 21 in the attachment).
Admittedly, Jarosław Kaczyński the Chairperson of the Law and Justice political party announced the liquidation of the Disciplinary Chamber, but the majority of the Sejm did not initiate any legislative changes. He declares that he does not intend to execute the judgments of the CJEU, but to streamline disciplinary proceedings, including introducing a regulation depriving Polish judges of immunity, although it is guaranteed in the Constitution. Politicians from the ruling party ostentatiously disregard the rulings of the CJEU in their public statements.
The political authority does not take up the subject of the defective National Council of the Judiciary, which is the primary source of irregularities in recommending judges for appointment to judicial posts, not only in the Disciplinary Chamber and the Extraordinary Control and Public Affairs Chamber, but also in all courts in Poland, indicated in the CJEU rulings.
To sum up, apart from the “political” statements of the illegally appointed First President of the Supreme Court, the judgments of the CJEU were not implemented at all. The political authority and Małgorzata Manowska, awaiting guidance from it, consciously perceive only a small part of the obligations imposed on Poland by these rulings and relating to the Disciplinary Chamber. However, even in this regard, there are no comprehensive and consistent actions. The judgments of the CJEU should be enforced immediately, finally and in accordance with the principle of loyalty, not delayed, on a temporary basis and through the preparation of new legal regulations that will force the European Commission to initiate lengthy anti-infringement proceedings. Importantly, however, they will not comprehensively eliminate the system of repressing judges, which the CJEU rulings aimed at. It is worth emphasizing that the political authority was able to introduce legal provisions that repress judges in just a few days, to quickly pass a law restricting the freedom of the media in recent days, and no action was taken in the implementation of CJEU judgments.
Consequently, as Polish judges, in view of the failure to comply with the CJEU rulings, we are requesting that immediate measures should be taken to implement both the CJEU's safeguard clause (request for financial penalties) and in a wider scope, resulting from the fact that these omissions constitute a clear example of a systemic violation of the rule of law.
In response to your request from 20th of July 2021 regarding to the admittance to work and performing official duties, I kindly inform you, that in regard with the pending resolution of the Supreme Court – Disciplinary Chamber from 18th November 2020 Case Ref. No. II DO 74/20 about the allowance to hold you criminally liable and to suspend you in performing official duties, this motion cannot be taken into account.
Based on art. 110 § 3 of the Act from 27th of July 2021 on The law on the system of the common courts (Bill of rights 2021, number 2072 with amendments) in regard to the motion of the Deputy of the Disciplinary Commissioner at the Court of Appeal in Warsaw, I appoint the Disciplinary Court at the Court of Appeal in Lublin as a disciplinary court with right to recognise in first instance the disciplinary case of Piotr Gąciarek the judge of the Regional Court in Warsaw.