The Disciplinary Chamber is populated entirely by justices selected since Law and Justice came to power. In a resolution of 10 April, they declared that the process by which they were appointed was entirely proper. The new members of the Supreme Court are rushing to “legalise themselves” in order to head off the “older” judges, who believe their new counterparts should not be allowed to rule. They were appointed in a faulty process and with the participation of a politicised KRS.

The Disciplinary Chamber of the Supreme Court, populated exclusively by judges appointed after the PiS-led “reforms”, ruled on 10 April that the process by which they were appointed was conducted properly.

The “new staff” of the Supreme Court from the Disciplinary Chamber had to rush to beat the “old staff” in the Criminal and Civil Chambers. The judges in place before the “good change” earlier sought to examine whether the judges appointed by the politicised National Council of the Judiciary were entitled to rule.

If they were not, they would be subject to exclusion from judicial panels. In addition, the president’s proclamation on the drafting of new justices to the Supreme Court was issued without the required countersignature of the prime minister, which would render the entire process of their appointment invalid.

Why do 3,000 Polish judges want the dismissal of the National Council of the Judiciary?

The decision of the Disciplinary Chamber, handed down at an unusually quick pace, blocked the proceedings of the Criminal and Civil Chambers. The question remains of whether the resolution will be submitted to the combined chambers or entire bench of the Supreme Court.

“A resolution adopted by the full membership of a Chamber has the force of a legal rule. It is binding on all judicial panels ruling in the Supreme Court. All judges will be bound by today’s resolution until such time as it is amended by a potential later ruling. This can be done by a resolution of combined chambers, or the entire bench of the Supreme Court,” the Court’s spokesperson Michał Laskowski said shortly after the decision was announced.

The resolution is also ethically questionable. The judges ruled in a case that directly concerns their appointment to the bench, but they claim otherwise.

“I would say that it would be better if justices ruled in this case who were not personally affected by issues and doubts surrounding the manner of their appointment. The ruling would then be more convincing, more reliable. This is only my personal impression, the Disciplinary Chamber today expressed an entirely different view,” said judge Laskowski.

“Absolutely no doubts”

In the ruling, the President of the Disciplinary Chamber, Tomasz Przesławski, emphasised that the announcement of the drafting of judges to the Supreme Court constitutes “an emanation of the prerogative of the president” as set out in Article 179 of the Polish Constitution. As such, it would not require the prime minister’s countersignature.

Legal experts have a different opinion, however, who point out that official acts of the president such as announcements of drafting of judges require a countersignature in order to be valid. This is clearly stipulated by Article 144(2) of the Constitution.

The status of the Disciplinary Chamber was also taken up recently by the European Commission. On 3 April, the Commission initiated infringement procedure against Poland and requested that the government supply its explanation.

Read the European Commission’s press release of 3 April on Poland’s new disciplinary regime for judges

The “new” judges also lent their support in defence of the new National Council of the Judiciary, which was politicised following the transition to power of Law and Justice.

In the ruling, judge Przesławski stated that the status of the Council now gives rise to “absolutely no doubts”. He also referred to how the justice system is configured in other European countries, such as Germany, the Czech Republic, Austria and Spain. In the opinion of the justices of the Disciplinary Chamber, the new legal solutions adopted in Poland will ensure greater participation of the judicial community in the appointment of the Council than is the case in the referenced countries.

On multiple occasions we have shown that this is not the case.

Read more on the unaddressed recommendations of the European Commission concerning the National Council of the Judiciary

[text: Maria Pankowska, translation: Matthew La Fontaine]