11 August 2021

The Disciplinary Chamber May Go – but the Rotten System will Stay

The notorious Disciplinary Chamber of the Polish Supreme Court, unlawful under EU standards according to the European Court of Justice, will be abolished. In an attempt of quick damage control in response to the combination of the CJEU judgment of 15 July 2021 (case C-791/19) and the impending decisions by the Commission regarding the Recovery Plan funds, the three main officials whose powers are relevant to the matter have made separate statements to that effect – namely the leader of PiS [Polish acronym for Law and Justice, the ruling party] Jaroslaw Kaczyński, Prime Minister Mateusz Morawiecki, and Chief Justice of the Supreme Court Małgorzata Manowska (whose appointment to that position was of dubious legality). This plan has been quickly endorsed by President Andrzej Duda – which is no surprise, considering his unconditional support for all party decisions. Another key character in this political theatre, the leader of a junior coalition partner and Minister of Justice Zbigniew Ziobro, declared his objections but the general consensus of observers in Warsaw is that this will have no significance. The fate of the Disciplinary Chamber (referred to, with good reasons, as a “Star Chamber”) is already determined, and its members are dead men (and a woman) walking. No matter that the sham “Constitutional Tribunal” was employed, only a few weeks ago, in a preventative action meant to shield Polish law from EU scrutiny: it grotesquely announced that CJEU interim judgments do not apply to Poland, and that it has begun considering the Prime Minister’s motion to announce that Article 19 of TEU does not apply to Poland as far as the Polish judicial system is concerned. Just as in the past, the “Tribunal” will be sidelined by its masters if they conclude that no one in the EU will consider for a moment that it has the slightest juridical gravitas.

For all we know, no detailed plan how to implement this has been articulated yet. Kaczyński announced that the Chamber would be abolished in September (under the CJEU judgment, Poland has until 16 September to implement it). The general contours of the design, however, have begun to emerge. It may be anticipated that a new statute on the Supreme Court will be enacted (or the old one, amended) under which the Chamber will cease to exist, and the disciplinary cases for judges and other lawyers will be heard by the remaining chambers of the Supreme Court, notably by the Criminal Law Chamber. Chief Justice Manowska has already announced that she will retain all new files addressed to the Disciplinary Chamber in her office without forwarding them to it, while a decision about what to do with pending cases would be left to the Chamber itself. Whether the current judges of the Disciplinary Chamber  [hereinafter: DC] will be amalgamated into the other existing chambers is unclear: formally speaking, they are categorized as “Justices of the Supreme Court”, only assigned to the DC. Also whether they will form a special sub-division within the Criminal Law Chamber or be “dispersed” in the Chambers, with the informal understanding that all disciplinary cases will go to them, is unclear too.

A purely cosmetic exercise

These details may be of some symbolic importance, but a simple refashioning of a Chamber into a sub-chamber may be too primitive to fulfil the purpose of damage control, so ultimately they do not matter. What really matters is that, unless the whole system of disciplining judges for the substance of their judgments is abolished, the main thrust of the objections articulated by the great majority of the Polish judiciary, by the Commission, and by the CJEU, will remain unmet. The DC is perhaps the most abhorrent part of the system, but it is not the entire system. Systemic and ongoing persecution and harassment of independent judges may easily continue, and most probably will, even in the absence of the DC. That is why no one should be duped by such a pars-pro-toto solution because, unless and until a broader change is introduced, it will remain a purely PR exercise, meant to reassure Brussels that the Recovery money should now be disbursed to Poland.

A word about the disciplinary system currently in place is needed. It may seem a bit tedious but it is necessary, in order to understand why removing the DC, without further and broader changes to the disciplinary system, is a purely cosmetic exercise.

Under the law on common courts, of 8 December 2017, the disciplinary system for judges has been vastly enhanced, by allowing the Minister of Justice (who, one should repeat , is leader of the junior partner in the governing coalition, hence a prominent politician) to affect the personnel, proceedings, and outcomes of disciplinary cases against judges at all levels of the hierarchy of the judiciary, and in many ways. So-called “disciplinary plenipotentiaries” (in Polish: rzecznik dyscyplinarny) are appointed by the Minister. True, the Minister of Justice must ask the National Council of the Judiciary (Polish acronym: KRS) for advice, but the advice is non-binding, and in any event, the KRS is fully subordinated to the ruling party’s will (more about that at the end of this analysis). Under the older (pre-PiS) dispensation, the disciplinary system did not reach the substance of judgments but only (and properly) was concerned with common offences committed by judges. Under the new system, by contrast, the grounds of disciplinary prosecutions are formulated so broadly as to relate also to the substance of judgments – and this opportunity has been broadly used to prosecute several judges for their legitimate judicial activities.

Further, in contrast to the earlier system, when only the currently active judges could be appointed “plenipotentiaries”, under the new system public prosecutors (hence, officials subordinated in a military-like fashion to the Minister of Justice who is ex officio Prosecutor General), can also perform these roles. They are now formally obliged to follow the Minister’s instructions regarding whether to press any action against a judge – even if the case has already been closed. Since the Minister may also nominate disciplinary judges (not to be confused with disciplinary plenipotentiaries, who act as a sort of prosecutor), in effect  this means that the Minister appoints both the “prosecutor” (plenipotentiary) to press a charge and the judge to decide the case. Incidentally, after entry of the law in force several current judges have already been appointed to disciplinary panels without their knowledge or consent, and they were bewildered to find out that there are no legal paths to protest such appointments.

A law replete with aberrations

The law on disciplinary procedure for judges is replete with various aberrations. One has already been mentioned: an already decided case may be re-opened at the instruction of the Minister, thus violating the ne bis idem principle. A disciplinary hearing may be conducted in the absence of the accused judge or his/her counsel, even if the absence is justified. A request by an accused judge to stay the proceedings while his/her request to have a representative appointed by the disciplinary panel is being considered (on the basis of the defendant’s illness) may be rejected. So the procedure may be concluded even before the defendant’s representative is able to become involved. The law allows the use of evidence even if it is obtained without judicial review, including illegally obtained evidence, for example by unauthorized tapping of the defendant’s phone.

Note, in this overview I have not yet mentioned the Disciplinary Chamber. And the overview has to be read in connection with other legal provisions and judgments which make it unlawful for judges to conduct regular judicial activities. Under the so-called Muzzle Law of 20 December 2019, it is a disciplinary offence for judges to scrutinize the lawfulness of appointment of other judges in the course of considering a given case, for example in the first instance of a legal case. This has been supported by a “judgment” of the façade Constitutional Tribunal of 4 March 2020 (P 22/19)  which rendered unconstitutional a provision of the Code of Criminal Procedure (Art. 41 para 1) about the exclusion of a judge, insofar as the motion to exclude the judge is based on an allegation of improper appointment of that judge by the newly constituted KRS. Judges who inquire into the legitimacy of appointment of other judges in their case (in their own panel or at an earlier stage of the case) are now liable for a disciplinary offence. (A recent such case was that of Judge Jacek Tyszka of the Civil Law Department, District Court in Warsaw). Ditto for judges sending questions of preliminary reference to the CJEU in connection with the status of other courts (such as the DC) or the KRS. These are now grounds for disciplinary offences.

The CJEU judgment is much broader than the authorities in Poland would like to read it

Which brings us to the above-mentioned CJEU judgment C-791/19 of 15 July 2021 which prompted the damage control activities. The most visible aspect of the judgment concerns the unlawfulness of the DC – and indeed, the Chamber is the most evident symptom of the pathology created by a disciplinary system for judges. But this is not the only aspect of that pathology by a long shot, and the cancerous character of the entire disciplinary system has been depicted, denounced, and declared inconsistent with EU law. After all, the very first charge in the infringement action by the Commission was that Polish law “allow[ed] the content of judicial decisions to be classified as a disciplinary offence involving judges of the ordinary courts” (para. 1). The issue of the Disciplinary Chamber appeared only in the second and third claims. And the fourth (and last) claim was also unrelated to the Chamber itself but concerned various fatal defects of disciplinary proceedings against judges, such as those already mentioned.

The Court acceded to all these objections. I will not here summarize the entire judgment, which deserves separate and detailed treatment but will only highlight these aspects which go well beyond the issue of the DC. The judgment makes it clear that, under Article 19(1) TEU and the norm of judicial independence there codified, any disciplinary system for judges must “provide the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions” (para 61). Regarding the first claim, the Court determined that the articulation of disciplinary offences in the new law allows political control of the substance of judgments (paras 134 and 135). The Court admits that in some exceptional circumstances the substance of judgments may be part of the grounds for disciplinary liability of judges (para 137); nevertheless such instances must be truly exceptional and must be connected with “guarantees designed to avoid any risk of external pressure on the content of judicial decisions and thus helping to dispel, in the minds of individuals, any reasonable doubts as to the imperviousness of the judges concerned and their neutrality with respect to the interests before them” (para 139, referring to the “Romanian Judges” judgment of 18 May 2021, C-83/19). In the case of the Polish law, the rules are vague and imprecise, and so “are not such as to prevent the liability of judges from being triggered solely on the basis of the supposedly ‘incorrect’ content of their decisions while ensuring that that liability is always strictly limited to entirely exceptional situations” (para 141). The Court also emphatically stresses that the provisions of the law under scrutiny “do not help to avoid that disciplinary regime being used in order to create, with regard to those judges who are called upon to interpret and apply EU law, pressure and a deterrent effect, which are likely to influence the content of their decisions. Those provisions thus undermine the independence of those judges…” (para 157) – which violates Art. 19(1) TEU.

Regarding the fourth objection by the Commission, on fatal procedural irregularities of the disciplinary system, the Court places this objection in the context of its earlier determinations, regarding objections 1-3 by the Commission, and encapsulates its determinations by saying that “the disciplinary regime applicable to judges of the Polish ordinary courts is characterised, in particular, by the fact that the courts involved in disciplinary proceedings do not meet the requirement of independence and impartiality or the requirement of being established by law, and by the fact that the forms of conduct constituting a disciplinary offence are not defined by Polish legislation in a way that is sufficiently clear and precise” (para 188). This is of course a devastating determination, and for the purposes of this article I must recall that its reach goes far beyond the Disciplinary Chamber itself. More specifically, regarding procedural infirmities of the system, the Court of Justice finds, albeit not in those precise words, a violation of the principle ne bis idem, and states that by allowing re-opening of already decided disciplinary cases the law creates “a risk of the disciplinary regime being used as a system of political control of the content of the judicial decisions which th[e] judges are called upon to give” (para 200). Also, by referring both to Article 47 of the Charter of Fundamental Rights and Article 6 ECHR (para 203), the Court finds violations of various aspects of the right of the defence. Various such violations (summarized above) lead the Court to conclude that various procedural provisions of the Polish law “are liable to restrict the rights of judges against whom disciplinary proceedings have been brought to be heard effectively by the disciplinary court and to be able to benefit from an effective defence before that court” (para 210). As the Court continues: “Those rules are not such as to ensure that, in the event of the justified absence of the judge concerned or his or her defence counsel during the proceedings conducted before that court, that judge will still remain in a position to make known his or her views effectively, if necessary with the assistance of defence counsel who also has an effective opportunity to ensure his or her defence”. (para 210).

This all shows that the ambit of the judgment of CJEU is much broader than the authorities in Poland would like to read it. The dismantlement of the rule of law in Poland after PiS came to power in 2015 has been comprehensive and dramatic, and a quick fix offered by Kaczyński, Morawiecki and Manowska will do nothing to remedy the broad damage to the fundamental values of legality. This also concerns the capture of Constitutional Tribunal as a result of which such abhorrent laws as that scrutinized by CJEU are not subject to any effective domestic review of constitutionality. It also concerns the Supreme Court (quite apart from the issue of the Disciplinary Chamber) which, through various institutional and procedural devices, and in particular though the new Chief Justice, has been now nearly completely subjected to political control. And perhaps most importantly it concerns the Council of the Judiciary (KRS), excluded from the European Network of Councils for the Judiciary for its lack of independence, which currently is a platform through which politicians of the ruling party fully control the process of appointments, discharges, promotions and demotions of all judges in Poland.

This last issue found its expression – en passant because it was not part of the subject-matter of the infringement action – in the CJEU judgment of 15 July. In echoing the Commission’s claim about the lack of independence of the KRS (para 66), the judgment devotes no less than nine paragraphs (paras 102- 110) to the new status of the KRS, “in which 23 of the 25 members … have been appointed by the Polish executive or legislature or are members thereof” as a result of which there is a risk, “hitherto absent from the selection procedure previously in force, of the legislature and the executive having a greater influence over the KRS and of the independence of that body being undermined” (para 104). This is because the old system, whereby 15 judicial members of the 25-member body had been elected by judges, has been replaced by PiS with a system in which judge-members of the KRS are now elected by the lower chamber of the parliament (Sejm). The Court confines its conclusions regarding the KRS to the nomination process to the Disciplinary Chamber – but their ramifications of course are much broader, and concern the entire judiciary. This body, completely subordinated to the ruling party (as its conduct since its re-composition has fully confirmed) contaminates the entire judicial system in Poland.

The government in panic

The uncompromising position of the Commission and the Court of Justice has caused panic among the key Polish politicians. What is at stake is the disbursal of immense Recovery funds, which have been already allocated by the ruling party to its “Polish Deal” program containing many welfare giveaways crucial to the reelection of the party in 2022. Its chances for victory two years from now are not all that high, even allowing for the uneven playing field created largely by the immense propaganda machine serving the ruling party, in the form of “public” (de facto: governmental) TV and radio. If the Recovery funds become limited or placed in doubt, due to non-observance of the CJEU judgment, the Polish electorate may punish PiS in 2023. And that means not only a loss of huge fortunes accrued through systemic corruption in recent years but also, possible, criminal and constitutional liability of many members of the current political elite.

This is the background for the damage control activities which we are currently observing. To repeat: no-one should be duped. Cosmetic changes such as those currently contemplated will not constitute good-faith compliance with the judgment of 15 July. The Disciplinary Chamber is only the ugliest but certainly not the only element of the comprehensive destruction of the rule of law meted out to Poland since late 2015.