Summary concerning disciplinary torts
The amendment of the act – the Law on the Common Courts system and the Supreme Court Act that have been adopted by the Sejm of the Republic of Poland on 20 December 2019 implements the judgement of the Court of Justice of the European Union of 19 November 2019 in cases: C-585/18, C-624/18 and C-625/18, in which it was confirmed that the appointment of judges by the President of the Republic of Poland cannot be the subject of a judicial review. It means that they are irrevocable.
Such a position is taken not only by the CJEU, but also by the Constitutional Tribunal and the Supreme Administrative Court in numerous rulings.
The CJEU judgement does not provide any basis for a general (abstract) challenge to the validity of appointments and the status of judges. Challenging is possible only if the manner of the appointment of a judge may affect a specific case, i.e. a decision issued by the particular composition of the court.
The CJEU has formed the European standard pursuant to which courts in the European Union member states are authorised to assess the impartiality of judges and independence of the court, but in a specific individual case and under the national provisions of law.
It means that the assessment should be carried out in the light of the provisions of acts (including the Constitution) of the given member state. The court and judges in Poland do not have competences to undermine or to assess the correctness of the performance of constitutional competences – by the National Council of the Judiciary and the President of the Republic of Poland and all the more to challenge the legitimacy of constitutional state authorities.
Due to the constitutional nature of these institutions, the Polish law does not and cannot provide for any procedure or competences to undermine the correctness of the appointment of judges or the composition of the National Council of the Judiciary.
The standard established in the CJEU judgement has been taken into account in the act by putting clear stress in the content on appropriate legal norms and the inadmissibility of the challenge raised by a judge to the judge status of another person appointed to this position by the President of the Republic of Poland; such an activity constitutes a disciplinary tort.
At the same time, the act introduces a particular procedure applied to assess the independence of the court and obliges judges to disclose to the public some data which may be essential for the assessment of the independence of the court in the composition in which they issue rulings as well as the impartiality of the judge (membership in associations, including also future membership in political parties).
They are circumstances which in the light of the CJEU standard may be essential for the assessment of the composition and the judge. Therefore, the act also preserves the constitutional standard of apolitical character of judges and implements the principle of transparency of law enforcement bodies and judges, which constitutes the basic guarantee of a democratic state governed by the rule of law.
The performance of the obligation to make a statement on public activities of a judge being a public officer is in the public interest and is essential from the point of view of its protection. Activities in associations, in particular in professional associations and political parties, are not covered by the privacy of an officer operating within the justice system.
Noticing the necessity to counteract groundless challenges to the impartiality of judges and, as a consequence, court decisions and, finally, to ensure the independence of courts guaranteed in the Constitution, the act specifies the catalogue of disciplinary torts, stating that some acts or omissions which may prevent or impede to a considerable extent the functioning of the justice system should be indicated; as well as activities questioning the existence of the service of judges or the effectiveness of a judge or the authorisation of a constitutional state authority and public activity which cannot be reconciled with the principles of the independence of courts and the impartiality of judges. Therefore, the act specifies the existing provisions which the disciplinary tort defined only by means of general and imprecise expressions within which it was also possible to consider the activities indicated above as inadmissible.
In the scope of the disciplinary liability, the act does not diverge from standards existing in other European countries, including from similar French and German solutions, in which such activities are subject to further liability than the liability in the act – to criminal liability.
In the course of legislative works, taking into account positions on and comments to the draft act concerning the application of the European law, the regulation related to disciplinary torts waives the judge’s disciplinary liability for the refusal to apply the provision of the act if the Constitutional Tribunal has not identified its non-compliance with the Constitution or with an international agreement ratified upon prior consent expressed in the act as well as waives the judge’s disciplinary liability which is incompatible with the principles of the independence of courts and the impartiality of judges. Nevertheless, pursuant to the Tribunal case law, a judge who has doubts as to the compliance of the act with a higher-ranking legal act, primarily with the Constitution, is obliged to submit to the Tribunal a legal question.
The refusal to apply the act without a prior decision of the relevant Tribunal is considered to be inadmissible both in the case law of the Constitutional Tribunal and in the case law of the Supreme Court. The Polish law does not allow the so-called fragmented judicial review, but only the constitutional review.
The catalogue of disciplinary torts is closed, but it covers types of conduct impossible to be catalogued unambiguously and, therefore, the legislator uses imprecise expressions to define torts. Nevertheless, their legal frameworks are clarified in the case law.
The disciplinary liability is of a particular nature and combines features of quasi-penal and ethical liability. Therefore, it is not possible to define all actions.