Changes to Supreme Court introduced on the 3rd of July 2018
Judge Darisz Mazur on the changes in the Supreme Court of Poland including Disciplinary Chamber and Chamber of Extraordinary Claim and Internal Affairs
1. General remarks
After the subordination of the Public Prosecution Office, the Constitutional Court and the National Council of the Judiciary to the political factor, the Supreme Court became the last standing independent organ of widely understood legal protection in Poland. It is going to change soon. The scope of changes introduced by the new Law on the Supreme Court, which is going to enter into force in its full scope on 3 of July, constitutes the real revolution within the highest level of the Polish judiciary which would directly undermine the independence of judges of the ordinary courts as well as the guarantees of free elections and would enable full political control over telecommunication, energetics and railway transport sectors.
The main features of the above-mentioned revolution cover:
● forced retirement of judges who exceeded 65 years, and who didn’t ask President for extension up to 70, or whom the President refused extension (enters into force on 3 of July). It is estimated that it can concern approximately 40% of the total number of judges (27 of total number of 74 judges),
● forced retirement on 3 of July concerns also the current First President of the Supreme Court Ms Małgorzata Gersdorf who is 65 and whose 6-years long term of office, which is directly guaranteed by the
Constitution, in normal circumstances shall finish in 2020,
● dismissal of the First President of the Supreme Court, the new President is going to be nominated by the President of Poland from among 5 candidates elected by General Assembly of the Judges of the Supreme Court. Actually, after the changes the person elected on this position will preside over 3 Chambers: Civil, Criminal, Labor and Social Security, which would consist partially of the old and partially of the new judges of the Supreme Court. Two remaining chambers (Disciplinary one and Chamber of Extraordinary Claims and Public Affairs) are going to be independent from the rest of the
● contrary to the ordinary courts, where the cases are allocated at random by the electronic system, in the Supreme Court they are allocated by the President of the Court. The example of “reformed” Constitutional Court clearly shows that such a solution in the politicized institution enables political control over the sensitive cases and leads to numerous abuses. In the Constitutional Tribunal the newly elected President appoints “proper” (newly elected) judges for sensitive cases and often changes the members of the jury just before the hearing without any rational reason. The “old” judges are prevented from participation in the sensitive cases,
● creation of two entirely new Chambers which members are going to be chosen by the new politicized National Council of the Judiciary (the only one requirement to become a member is 10 years of experience in any legal profession, so the candidate for the judicial position in the Supreme Court do not have to be a judge):
– Disciplinary Chamber,
– Chamber of Extraordinary Claims and Public Affairs,
● actually the two new chambers (Disciplinary and Extraordinary Claims and Public Affairs) are going to be separate courts (Disciplinary Chamber with separate president, office and budget), only just acting under the auspices of the Supreme Court, adjudicating with participation of lay judges which are going to be elected by absolute majority in upper house of Parliament (Senat) where Law and Justice has 60 % of votes,
● increasing a total number of judges of Supreme Court from 81 to 120. If we sum up the number of judges newly engaged to replace those who will be forced to retire after 65 and those who are going to be nominated on the newly created positions in two new chambers we come to the conclusions that entire Supreme Court is going to consist of between 60 and 70 % new judges, all of them elected by the new politicized National Council of the judiciary,
● the new Law attributes wide scope of competences in respect of organization of the Supreme Court to the President of Poland Andrzej Duda, who is a “Law and Justice” nominee. He was entitled to issue
internal rules of the Supreme Court which regulate, among others: the total number of judges (not less than 120), number of judges in particular chambers and internal rules of the organization of the Supreme Court.
All in all the „new” Supreme Court would consist of the new First President, two new Chambers dealing with the most politically sensitive cases and between 60 % and 70 % of the new judges, who have not been elected so far.
2. Disciplinary Chamber
The Disciplinary Chamber is going to be entirely new body established on the basis of new Law on Supreme Court. According to Ordinance of the President of Poland of 30 March 2018 the Disciplinary Chamber will consist of 16 judges. It is designed to adjudicate as :
● the second instance court for disciplinary cases of judges of the ordinary courts and members of other legal professions (prosecutors, attorneys and notaries). In this category of cases the Disciplinary Chamber acts in a panel consisting of two professional judges and one lay judge,
● the first instance disciplinary court for disciplinary cases of the judges of the Supreme Court adjudicating in a panel of two professional judges and one lay judge,
● the second instance court for disciplinary cases of the judges of the Supreme Court adjudicating in a panel of three professional judges and two lay judges,
● the second instance court recognizing appeals from resolutions of the National Council of the Judiciary.
This Chamber has separate President (completely independent in the scope of competences and not subordinated to the First President of the Supreme Court), separate budget and separate office. Judges-members of the Disciplinary Chamber of the Supreme Court are granted an unwarranted by the workload, very high 40 percent bonus to their salary, which is obviously aimed at corrupting them to be ready pursue politically-motivated proceedings against their colleagues. The government also secured a large budget for this special Chamber.
Creation of the Disciplinary Chamber in the Supreme Court is accompanied by introduction of the new mode of disciplinary proceedings. Main features of the new mode of disciplinary proceedings in respect of judges and members of other legal professions are as follows:
● members of first instance disciplinary courts (situated at the level of Appellate Courts) are elected by Minister of Justice who is at the same time the General Prosecutor Public (furnished with broad investigative powers) and the member of the political party forming parliamentary majority,
● the judge appointed for the position in the disciplinary court is obliged to take up this position even if it is against his/her will and does not have any remedy against such an appointment,
● it is permissible to carry out a hearing in disciplinary proceedings in justified absence of a judge or her/his counsel, which undermines the right to defence,
● the new law explicitly allows to apply in respect of judges evidence obtained without judicial control and in violation of laws, including evidence obtained as a result of operational control of telephone
● grants extensive powers in matters of disciplinary proceedings to representative of the executive power, i.e. the Minister of Justice, who can appoint disciplinary prosecutor for a particular judge. Such disciplinary prosecutor can be appointed not only from among judges, but also from among public prosecutors who are directly subordinated the Minister of Justice who is at the same time the General Prosecutor Public, to whom the minister gives personal instructions,
● possibility to repeal a judge’s immunity under the accelerated 24-hours mode of procedure,
● the new law eliminates application of the prohibition of reformatio in peius within appellate disciplinary proceedings. Contrary to classical criminal proceedings, this change means that a person who was acquitted by the first instance disciplinary court can be found guilty by the Disciplinary Chamber of the Supreme Court without the possibility of the remedy in a the normal course of the proceedings.
The solutions described above result in an introduction of an inquisitional model of disciplinary proceedings against judges and representatives of other legal professions, which will politicize these proceedings and at the same time it will restrict procedural rights of the defendants.
3. Chamber of Extraordinary Claim and Internal Affairs.
It is going to be entirely new body established on the basis of new Law on Supreme Court. It will consist exclusively of new judges-members who are going to be chosen by reorganized and politicized National Council of the Judiciary and lay judges who are elected by upper house of Parliament (Senat) where Law and Justice has 60 % of seats. According to Ordinance of the President of Poland of 30 March 2018 the Chamber of Extraordinary Claim and Internal Affairs will consist of 20 judges. In each single case the panel consists of two judges and one lay judge.
Its scope of competences covers:
● possibility to set aside final court judgements reached in the past two decades, which massively undermines the principle of legal certainty and finality of Polish legal system. One of the authorities empowered to file an extraordinary claim is the General Prosecutor Public – Minister of Justice who is a very engaged politician of a governing coalition, so one can expect reopening of criminal or civil cases against political opponents by application of extraordinary claim,
● deciding upon validity of election (parliamentary, Presidential, to European Parliament) and referendum (general and Constitutional),
● examining the election protests,
● examining cases concerning protection of competition,
● examining cases concerning control of energetics, telecommunication and railway transport.
Creation of Chamber of the Extraordinary Claim and Internal Affairs gives the executive power control over legal scrutiny of elections and referendums, as well as over energetic and telecommunication sectors, which causes direct endangerment for preserving of democracy and the rule of law in Poland. This raises serious question if the next elections are going to be free or rather politically controlled.
The institution of an extraordinary claim can become a kind of universal multifunctional device in the hands of politically motivated General Prosecutor Public – Minister of Justice who can reopen both civil and criminal cases in order to target political opponents, independent media or NGOs criticizing the governmental policy. The Venice Commission assessed that “In this respect the proposed is even worse
than its Soviet predecessor”.
4. Reaction of the judiciary
In the term provided by the new law 9 Justices of the Supreme Court asked the President for extension up to 70, enclosing medical certificates confirming their ability to adjudicate, required by the new law. The President has not issued any decision in this respect yet. However, seven other Justices (among them the President of Criminal Chamber Stanisław Zabłocki) submitted written statements revoking Constitutional principle of irremovability of judges (art. 180 p. 1 of the Constitution) as their ground for further judicial activity which shall not be undermined by the lower-ranking legal act.
The President of the Supreme Court Małgorzata Gersdorf publicly announced that she is not going to ask President for extension of her term of office as well as she is not going to retire after 3 July. Just the opposite, she is going to perform her duties up to the end of her term of office guaranteed by the Constitution which is April 2020.
On 28 July 2018 the General Assembly of Judges of the Supreme Court adopted two very important resolutions. According to the first resolution Justice of the Supreme Court, Professor Małgorzata Gersdorf, shall remain (according to Art. 183 section 3 and Art. 8 of the Constitution) the First President of the Supreme Court up to 30 April 2020. The second resolution provides that Justices of the Supreme Court who had begun their service on the Supreme Court before the new law on the Supreme Court came into force, should continue their service until the age of 70 without any additional conditions; the opposite regulation adopted in art. 111 para. 1 of the new Law on the Supreme Court is in breach of Art. 180 of the Constitution.
Following above-mentioned resolutions Ms Małgorzata Gersdorf and some other judges who are going to be forced to retire on 3-rd of July one the basis of unconstitutional regulations of the new law, declared intention of continuing of their professional activity after the 3 of July and to report for duty on the 4 of July at 8.30 at the premises of the Supreme Court in Warsaw. In this critical moment they are going to be supported by members of associations of judges, representatives of other legal professions, NGOs and ordinary citizens who support the independence of the judiciary. The question arises if they will be admitted to the building or rather prevented from by usage of coercive measures.
Unfortunately, the recent activity of the President of Poland, who on 29 July announced 44 vacancies in the Supreme Court, indicates possibility of forceful solution.
5. Closing remarks
The solutions described in a part devoted to Disciplinary Chamber and the new mode od disciplinary proceedings result in an introduction of an inquisitional model of disciplinary proceedings against judges and representatives of other legal professions, which will politicize these proceedings and at the same time it will restrict procedural rights of the defendants in such a manner that their position will be
significantly worse than the position of defendants in classical criminal proceedings.
If we add to it politicization of the Prosecutor’s Office carried out by a Law enacted in 2016, we are presented with a picture of ‘technological sequence’ enabling the executive and legislative powers repressions of ‘inconvenient’ judges and members of other legal professions by means of criminal and disciplinary proceedings. An obvious result of the new mode of disciplinary proceedings will be a ‘chilling effect’ on the work of the judges, especially in cases that will have a political or media character.”
Chamber of the Extraordinary Claim and Internal Affairs gives the executive power control over legal scrutiny of elections, as well as over energetic and telecommunication sectors, which causes direct
endangerment for preserving of democracy and the rule of law.
Situation of granting the governing camp political control over electoral procedures and over the media market would undermine both free elections and freedom of expression. It is a kind of an “insurance policy” for the ruling camp in case they do not get the votes they need.
According to common perception the main factor of the revolution which is negatively assessed by international bodies is wide scope of dismissal of judges caused by the intertemporal provisions of the new law.
However, according to the author of this article, the factor which is probably even more dangerous, from the point of view of preserving of the rule of law in Poland, is the establishment of the two entirely new Chambers which are granted control of the very sensitive areas of public life.
If we take under the consideration such factors as politicized way of election of the judges-members of this new chambers, their wide scope of independence from the remaining part of the Supreme Court, unprecedented at this level of the judiciary element of participation of social factor (lay judges), and
seriously reduced level of procedural guarantees in the new mode of disciplinary proceedings one may expect that both new chambers are going to become kangaroo courts subordinated to the executive power and designed to achieve political objectives of the governing party.
All in all the „new” Supreme Court would consist of between 60 % and 70 % of new judges, who have not been elected so far. The new law on the Supreme Court enters into force in its full scope on 3-rd of July, which is the critical date after which the personal changes in the Supreme Court will be irreversible.
After mentioned date up to 40 % of the current members are going to be retired, the vacancies are going to be filled be the new, politically dependent judges and two entirely new politically dependent Chambers are going to be created.
Forming of the new politicized quasi-judicial organs with particular scope of competences, particular composition and reduced level of procedural guarantees is characteristic for authoritarian or totalitarian regimes rather than for democratic countries based on the rule of law.