Disciplinary Chamber of the Supreme Court, judgment of the CJEU. Małgorzata Manowska comments

The opinion of Małgorzata Manowska, the first president of the Supreme Court, was published on Monday in “Dziennik Gazeta Prawna”. “Personally, I do not agree with the judgment of the CJEU of July 15, or the decision of the Vice-President of the CJEU of July 14. (…) It is incredible that the CJEU could suspend the functioning of the national court, as part of a precautionary measure. The coercive measure is inadequate to the situation” – she wrote .

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She noted, however, that as the first president of the Supreme Court “he must take care of the Supreme Court and the entire judiciary, try to end this Polish-Polish war in the judiciary”.

“In this context, it should be stated that – contrary to various media statements – neither the judgment nor the decision are addressed to me. The CJEU indicates systemic and systemic features. I do not have the power to amend the law and I do not have such power over the presidents of the more judges to freeze the chamber, prohibit adjudication. I can only ask for restraint. If the CJEU questions the structure of the Disciplinary Chamber, and the ECtHR questions the election of the National Council of the Judiciary, then the decision on this matter belongs to the politicians, the rulers. This is precisely due to the separation of powers “- was underlined by the first president of the Supreme Court.

She pointed out that she issued two ordinances “only to give politicians time to try to come to an agreement and set some direction for changes, so that the threat of financial penalties would not hang over their heads.”

She noted that she had talked with the president, prime minister and speaker of the Sejm about possible directions of changes regarding the Disciplinary Chamber and the National Council of the Judiciary.

“I did not talk to politicians, as is sometimes suggested. I did not make any compromises. I talked to the authorities of these authorities. I did not do anything secretly and was therefore not exposed to any shouting or filming in the street. it is best not to do anything but always be ‘no’. With such an approach we will not get far as a nation, which is confirmed by our historical experience “- emphasized Manowska.

In her opinion, the Disciplinary Chamber “should continue to operate as a separate professional liability chamber in the Supreme Court, but its members could be elected, for example, by the president from among judges drawn from other chambers”. “At the same time, I am a supporter of the liquidation of such a far-reaching separateness of the Disciplinary Chamber. There must also be mechanisms preventing the possibility of influencing or putting pressure on judges” – she added.

According to Manowska, “in the event of a change in the selection mechanism of the National Council of the Judiciary, a two-stage system can be proposed”. “First, the candidates in general, democratic elections would be selected by the judiciary. Their number would be correspondingly greater than that of seats in the National Council of the Judiciary, for example 15 people per seat. Then the final election would be made by the parliament” – she proposed.

In mid-July Court of Justice of the European Union ruled that the system of disciplinary liability of judges in Poland is inconsistent with EU law. The day before, the CJEU obliged Poland to “immediately suspend” the provisions on the powers of the unrecognized Disciplinary Chamber of the Supreme Court. On Thursday, the website of the Supreme Court published two ordinances of Małgorzata Manowskain which the first president of the Supreme Court partially froze the work of the Disciplinary Chamber in question. This decision marks the change of the position of the first president of the Supreme Court. Initially, Manowska suspended the implementation of interim measures ordered by the CJEU, which meant that the judges of the Disciplinary Chamber – contrary to the position of the European tribunal – adjudicated in disciplinary cases.

The minister of justice criticized her for the change of position on Friday Zbigniew Ziobrowho believes that the CJEU judgments in the case of the Disciplinary Chamber should not be implemented.