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Supreme Court. Żukowska: The Chamber of Extraordinary Control replaced the Disciplinary Chamber. No, it’s not that change

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According to MP Anna Maria Żukowska, the Chamber of Extraordinary Control and Public Affairs of the Supreme Court is a Disciplinary Chamber changed as a result of the CJEU judgment and the dispute with the European Commission. The MP is wrong – although the European tribunal also issued a judgment against the Chamber of Extraordinary Control.

On January 7, in the morning program “Śniadanie Rymanowskiego” on Polsat News, guests discussed the implementation of the final judgment of the Warsaw district court, which sentenced Law and Justice MPs Mariusz Kamiński and Maciej Wąsik to two years in prison and two other former CBA officers to one year in prison in the so-called the land scandal of 2007. After this verdict, on December 21, 2023, the Speaker of the Sejm, Szymon Hołownia, signed a decision to expire the parliamentary mandates of Kamiński and Wąsik, to which he is obliged by the Electoral Code. Both convicts appealed against this decision to the Supreme Court – the Marshal of the Sejm filed their appeals with the Chamber of Labor and Social Insurance of the Supreme Court, and they filed their appeals with the Chamber of Extraordinary Control and Public Affairs. On January 4, the latter chamber repealed the decision of the Speaker of the Sejm regarding the expiry of the mandate of Maciej Wąsik, and the next day against Mariusz Kamiński.

Commenting on this move of the Chamber of Extraordinary Control and Public Affairs, several lawyers from the Team of Legal Experts of the Foundation. Stefan Batory stated that the case of appeals by Kamiński and Wąsik should not be considered by the Chamber of Extraordinary Control and Public Affairs. And that’s because December 21, 2023, Court of Justice of the European Union assessed that this chamber did not have the status of “an independent and impartial court previously established by law, as required by EU law.” Previously, the European Court of Human Rights and the Court of Justice of the European Union have ruled several times that the Chamber of Extraordinary Control and Public Affairs of the Supreme Court is not an independent and impartial court “established by law.” “An appeal against the decision of the Speaker of the Sejm should be examined by a court established by law, which meets the requirements of independence and impartiality, and which was competent in accordance with the provisions in force before the introduction of the legislative change granting jurisdiction to the Chamber of Extraordinary Control and Public Affairs. In the Polish legal system, such a court is the Chamber of Labor and Social Insurance of the Supreme Court,” they said Batory Foundation experts.

Anna Maria Żukowska, a member of parliament from the Left parliamentary club, commented on this issue. During a discussion in a television program, when PiS MP Radosław Fogiel was talking about the decisions of the Chamber of Extraordinary Control and Public Affairs, the MP interrupted him and asked: “Will you remember why it is called the Chamber of Extraordinary Control? What was her name before? Disciplinary Chamber. Why did you have to change it?” However, when she came to the floor, she said:

This chamber is now called the Chamber of Extraordinary Control in order to deceive the EU institutions that it is no longer the Disciplinary Chamber. You changed the sign on the door without actually changing the institution in the sense that the judges who sit there do not have the value of independence.

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However, the MP confused two different chambers of the Supreme Court created during the rule of the United Right.

Reconstruction of the Supreme Court

Already at the beginning of its rule, the United Right, having a majority in the Sejm and Senate, changed the Act on the Constitutional Tribunal in 2016. The next judicial institution that the government decided to change at that time was the Supreme Court.

On December 8, 2017, the parliamentary majority of members of the PiS club adopted a new law on the Supreme Court. It entered into force on April 3, 2018. On its basis, a thorough reconstruction of the Supreme Court was carried out, including: – the Military Chamber was liquidated; – in place of the Chamber of Labour, Social Insurance and Public Affairs, the Chamber of Labor and Social Insurance was established; – the Chamber of Extraordinary Control and Public Affairs was established – it was entrusted with, among others, issues of adjudicating on the validity of elections and referenda or complaints against decisions on the expiry of parliamentary mandates; – a Disciplinary Chamber was established to deal with disciplinary cases of judges and prosecutors.

Therefore, the Chamber of Extraordinary Control and Public Affairs did not replace the Disciplinary Chamber, because both were established at the same time and had different competences. Both operated in parallel until July 15, 2022. Then another change to the regulations on the Supreme Court came into force.

Which chamber was closed and replaced with a new one

It is in the case of the Disciplinary Chamber that we can talk about “changing the sign on the door”. Against this chamber – which dealt with, among others, lifting the immunities of judges – protested by the then opposition and the majority of the legal community, including all judges’ organizations. In December 2019, the Chamber of Labor and Social Insurance of the Supreme Court, and in January 2020, 60 judges of the Civil, Criminal and Labor Chambers of the Supreme Court found that the Disciplinary Chamber is not a court within the meaning of European Union law, and therefore is not a court within the meaning of national law , because the judges of this chamber were appointed by the politicized National Council of the Judiciary (neo-KRS).

In July 2021, the Court of Justice of the European Union ruled in two judgments that the system of disciplinary liability of judges in Poland is not consistent with European Union law and that the Disciplinary Chamber of the Supreme Court “does not fully guarantee independence and impartiality” – for the same reason, on which was indicated by Polish judges in resolutions of December 20219 and January 2020. The Tribunal ordered the suspension of its work, but the Polish government did not implement the judgment, which led to a dispute with the European Commission. Since the unrecognized chamber was still functioning, Poland was fined one million euros a day for the Polish government’s failure to comply with the interim measures imposed by the CJEU.

As a consequence, however, on the initiative of the President, the Sejm, by the Act of June 9, 2022, once again changed the Act on the Supreme Court: the Disciplinary Chamber was replaced by the Chamber of Professional Responsibility. In Andrzej Duda’s opinion, this was to “give the government the tools” to end the dispute with the European Commission and unblock the National Reconstruction Plan.

It is not a body “having the status of an independent and impartial court”

But the Chamber of Extraordinary Control and Public Affairs of the Supreme Court also raised objections among lawyers. In a resolution of January 2020, the Supreme Court judges stated that this chamber is “composed entirely of judges who were incorrectly appointed” by the politicized National Council of the Judiciary.

In its judgment of November 8, 2021, the European Court of Human Rights stated that the Chamber of Extraordinary Control and Public Affairs of the Supreme Court was not a “court established by law”; he repeated this in the judgment of November 23, 2023. And on December 21, 2023, the CJEU ruled that the questions submitted to the tribunal by the Chamber of Extraordinary Control and Public Affairs “do not come from a body having the status of an independent and impartial court previously established by law, as required by EU law.”

Main photo source: TVN24



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