On March 28, 2021, representatives of Polish non-governmental organizations and European academics specialising in European Union law and human rights sent a letter to the President, Vice-President and the Commissioner for Justice of the European Commission urging them to submit a complaint to the Court of Justice of European Union against Poland concerning infringement procedure No. 2182/2020, together with a request for urgent interim measures. The letter contains a number of allegations related to the functioning of the Disciplinary Chamber and the Chamber of Extraordinary Control and Public Affairs, as well as actions taken by the National Public Prosecutor’s Office in relation to judges. The argumentation presented in the letter, based on the allegations of the possibility of applying disciplinary or criminal sanctions for the content of the judgments, which will deepen the “chilling effect” and directly affect the uniform and effective application of EU law by Polish courts, is groundless and contrary to the jurisprudence of the Court of Justice. In the course of the infringement procedure, the Republic of Poland presented the Commission in detail with arguments indicating the compliance of the challenged provisions with EU law.
Legislative changes introduced to the Polish justice system since 2015 have been aimed at deepening the compliance of the Polish regulation with the values common to all Member States of the European Union and the Council of Europe. Polish provisions on the independence of courts and the independence of national judges correspond to the unquestioned regulations of other Member States.
The accusations raised in the letter concerning the Disciplinary Chamber and the Extraordinary Control and Public Affairs Chamber of the Supreme Court result from the fact that both Chambers are entirely composed of judges whose election for this position was attended by the National Council of the Judiciary, elected in accordance with Art. 9a of the Act on the National Judicial Council. The judgment of the Court of Justice of 9 July 2020 in case C-272/19 VQ v. Land Hessen questions the allegation that the judges of the Disciplinary Chamber were not independent due to their appointment by the President of the Republic of Poland at the request of the National Council of the Judiciary, whose members were judges elected by a qualified majority by the Sejm of the Republic of Poland. It follows unequivocally from the judgment in question, that the fact that judges are appointed by a representative of the executive power, and the composition of the body requesting for appointment is dominated by members elected by the legislature does not in itself make judges dependent on these authorities. Similarly, the Court of Justice of the European Union found no grounds to recognize the Italian Supreme Council of the Judiciary as a body dependent on the legislative or executive power, despite the fact that the Council includes, inter alia, President of the Republic and eight members elected by parliament (CJEU judgment of 16 July 2020 in case C-658/18 UX v Governo della Repubblica italiana). The same position is presented by the Advocates General of the CJEU. From the opinion of the Advocate General, Gerard Hogan, presented in the case C-896/19 Repubblika v. Il-Prim Ministru on 17 December 2020, it appears that 19 paragraph 1 ak. 2 TEU, interpreted in the light of Art. 47 of the Charter of Fundamental Rights does not preclude national constitutional provisions regulating participation of the executive or one of its organs, such as the prime minister.
It is impossible to agree with the allegations indicated in the letter regarding the failure to respect the independence and independence of judges. Pursuant to Art. 178 sec. 1 of the Constitution of the Republic of Poland, judges in the exercise of their office are independent and are subject only to the Constitution and statutes. At the same time, pursuant to Art. 80 sentence 1 of the Act of July 27, 2001, Law on the System of Common Courts (hereinafter referred to as ACC), a judge may not be arrested or held criminally responsible without the permission of the competent disciplinary court.
It should be emphasized that the Republic of Poland complies with the principles of respect for European law and judgments issued by the Court of Justice of the European Union. The Republic of Poland has taken the necessary measures to comply with the decision of the Court of Justice of the European Union of April 8, 2020 (reference number C-791/19 R) on the application of interim measures with regard to the activity of the Disciplinary Chamber of the Supreme Court. As part of the execution of the interim order, 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. in cases involving the authorization to prosecute or detain judges. Pursuant to Art. 110 § 2 ACC the disciplinary court is competent to adjudicate in cases referred to in other regulations, in particular in Art. 80 ACC. In this regard, the disciplinary court is competent to issue resolutions authorizing the prosecution of a judge if there is a sufficiently justified suspicion that he has committed a crime (the so-called “immunity” proceedings). It should be emphasized that the immunity proceedings themselves are only incidental proceedings related to the preparatory proceedings, which only condition the possibility of pending criminal proceedings against a judge protected by immunity. The waiver of immunity does not prejudge the filing of the indictment against the judge. However, if this happens, any criminal proceedings against a judge deprived of immunity will then be conducted before an independent and independent common court – the criminal department.
Referring to the activity of the Supreme Court of the Supreme Court of Extraordinary Control and Public Affairs, it should be noted that the exclusion of the possibility of assessing the legality of the appointment of a judge is, in the light of the systemic model of appointing judges in Poland, a clarification of the current legal norm regulating the definition of a disciplinary tort and is fully justified and advisable. Allowing judicial control of the model of selecting judges would disturb the balance of powers. It should be emphasized that in the judgment delivered in joined cases C-585/18, C-624/18 and C-625/18 A.K. and others The Court of Justice confirmed that appointments of judges by the President of the Republic of Poland, including judges of the Supreme Court, cannot be subject to judicial review.
It is not true that judges in Poland are held criminally responsible “for the content of court decisions”, as there are no provisions in Polish law that would impose on them such liability. This would, of course, violate polish regulations which guarantee the independence and impartiality of judges. It should be pointed out that the Public Prosecutor’s Office is an independent body and requests permission to hold a judge criminally responsible only in connection with a sufficiently justified suspicion that he has committed a crime. In a state ruled by law, it would be unacceptable for a judge to be relieved of such responsibility. Also, disciplinary liability defined in Art. 107 § 1 ACC, does not cover responsibility “for the content of court decisions”. The Supreme Court, interpreting the provision of Art. 107 ACC decided that a disciplinary offense may constitute an obvious and flagrant offense against the provisions of the law, also in the course of settling cases. Disciplinary tort consisting in an obvious and blatant violation of legal provisions cannot, however, be equated with responsibility for the content of the judgment. There is a fundamental difference between holding a judge responsible for the content of a judgment, the issuance of which falls within the limits of the interpretation of law, and liability for an obvious and flagrant offense against the provisions of law.
The request brought to the Supreme Court for permission to bring Igor Tuleya to the Prosecutor’s Office is a result of the fact that the judge failed to appear three times when summoned by the authority. It should be emphasized that the consent to bring Judge Tuleya to criminal liability and the proceedings conducted against him result from specific allegations of violation of the law, however, these allegations are not related to the content of his judgment.