European Commission decided to refer Poland to the Court of Justice of the European Union

The separation of the Supreme Court chamber that examines disciplinary cases was made pursuant to the Act of December 8, 2017 on the Supreme Court. The ratio legis of the separation of the Disciplinary Chamber was the ineffectiveness of disciplinary proceedings and the failure of the Supreme Court judges to enforce the consequences of disciplinary offenses.

The competences of the Disciplinary Chamber of the Supreme Court include not only disciplinary cases of Supreme Court judges and common court judges, but also disciplinary cases of lawyers, legal advisers, notaries, military judges, prosecutors, court bailiffs and prosecutors of the Institute of National Remembrance. In addition, the competences of the Disciplinary Chamber of the Supreme Court include cases for the permission to prosecute or temporarily arrest judges, assessors, prosecutors and prosecutor’s assessors, cases in the field of labor law and social security regarding judges of the Supreme Court, and cases concerning the retirement of a Supreme Court judge.

The Disciplinary Chamber ensures better organization and effectiveness of the examination of disciplinary cases of representatives of public trust professions, which are essential for the authority of the judiciary. Thanks to this Chamber, there is also greater transparency of such proceedings for the public.

In the course of the infringement proceedings, the Republic of Poland presented the European Commission in detail with arguments indicating the compliance of the adopted provisions with EU law. Legislative changes in the Polish judiciary since 2015 have been aimed at deepening the compliance of Polish regulations with the values common to all European Union countries and the Council of Europe.

Poland complies with the principles of respect for European law and judgments issued by the Court of Justice of the European Union. It has also taken the necessary measures to implement the decisions of the CJEU of 8 April 2020, issued on the application of interim measures regarding the operation of the Disciplinary Chamber of the Supreme Court.

As part of the implementation of the decision on interim measures, the application of the provisions of the relevant acts relating to the Disciplinary Chamber in the disciplinary proceedings of judges was suspended. The Chamber continues its activities in the areas not questioned by the Tribunal, i.e. with regard to cases for the authorization to prosecute or temporarily arrest judges, assessors, prosecutors and assessors of the prosecutor’s office, disciplinary cases of attorneys-at-law, legal advisers, notaries, prosecutors, bailiffs, cases in the field of labor and social security law concerning Supreme Court judges and cases in the field of retirement of a Supreme Court judge. 

The ruling of the CJEU does not, however, apply to proceedings aimed at granting a permission to prosecute a judge. Such proceedings (the so-called immunity proceedings) are not disciplinary proceedings. These are only incidental proceedings, related to the preparatory proceedings, which only determine the possibility of pending criminal proceedings against a judge protected by immunity.

The waiver of immunity does not prejudge the submission of the indictment against the judge. However, if so, any criminal proceedings against a judge deprived of immunity will be brought before an independent common court.

Judges in Poland are not held criminally responsible “for the content of court decisions “, because there are no provisions in Polish law that would make it possible.

The public prosecutor’s office is an independent body and requests permission to prosecute a judge only in connection with a sufficiently justified suspicion that he has committed a crime. On the other hand, it would be unacceptable in a state ruled by law to recognize that a judge is exempt from criminal responsibility only because of the office he holds.

Also, disciplinary liability that judges bear under the Act on the System of Common Courts does not include liability “for the content of court decisions”. While interpreting these provisions, the Supreme Court decided that a disciplinary offense may constitute an obvious and gross offense against the provisions of law, also in the course of adjudicating cases. This offense against the regulations cannot, however, be equated with responsibility for the content of court decisions.

The request brought to the Supreme Court for permission to bring Igor Tuleya to the prosecutor’s office stems from the fact that the judge failed to appear three times when summoned by this authority. The consent to bring judge Tulei to criminal liability and the proceedings against him result from specific allegations of violation of the law. These allegations do not relate to the content of court decisions issued by him.