The liquidation of the Disciplinary Chamber, not recognized by the Supreme Court, is the best of the proposed solutions – said Wojciech Hermeliński, retired judge of the Constitutional Tribunal on TVN24. Such a provision was included in the bill by senator Krzysztof Kwiatkowski. According to Hermeliński, if the project were to come into force, “we would be back to normal” and “a significant part of the devastation of the justice system would be reversed”.
The Disciplinary Chamber, not recognized by the Supreme Court, resumes the examination of cases, even though the Court of Justice of the European Union ruled in its judgment of 15 July that the system of disciplinary liability of judges in Poland is not consistent with EU law. The European Commission is waiting for information from the Polish government about the steps taken to adjust the law.
Hermeliński on Poland’s failure to comply with the CJEU judgments
Wojciech Hermeliński, a retired judge of the Constitutional Tribunal, assessed in the program “Get up and you know” on TVN24 that the continued functioning of the ID is “an abuse of the law”. – This is an objection to the rulings of our tribunals – Luxembourg and Strasbourg – he stressed.
As he stated, “the position of the authorities, especially the Ministry of Justice, is tough.” – It does not allow the possibility of implementing these judgments. He argues that this is a political usurpation by the tribunal. These are statements that are completely unacceptable and inconsistent with the constitution and the EU treaty – emphasized Hermeliński.
As he added, there are statements from the prime minister, the First President of the Supreme Court, Małgorzata Manowska, and the president, from which – according to Hermeliński – it appears that “the authorities only want to make cosmetic changes so that a position of the European Commission can be presented by August 16”. “I am afraid that it will not be the position that should be presented by the authorities of a civilized, law-abiding country, but that it will be a smudge of eyes again,” said the judge.
According to him, “the whole essence of this evil lies in the National Council of the Judiciary”. – It should be changed and appointed in accordance with the constitution, because all subsequent legal situations that occur come from it. This is a whole technological sequence, but you can see that the authorities do not want to remove the causes, but the effects – said Hermeliński.
Hermeliński on the criminal liability of the minister of justice
When asked whether the actions of Zbigniew Ziobro, the Minister of Justice, exhaust the features of a constitutional tort and Article 231 of the Criminal Code, concerning the abuse of powers by a state official, he replied: – You can look at it this way.
– If a state official, and such is undoubtedly the minister of justice and the prime minister, refuses to execute the sentence, refuses to respect treaties of international law that are binding on Poland, it is obvious to me that the conditions provided for in Article 231 of the Criminal Code apply here. I don’t see any other possibility here – replied Hermeliński.
ABUSE OF POWER § 1. A public official who, by exceeding his powers or not fulfilling his duties, acts to the detriment of public or private interests, shall be punishable by imprisonment for up to 3 years. § 2. If the perpetrator commits the act specified in § 1 in order to gain benefits property or personal, shall be punishable by imprisonment from one year to 10 years. shall not apply if the act meets the criteria of a prohibited act specified in art. 228.
Hermeliński on the proposal to liquidate the Disciplinary Chamber
Krzysztof Kwiatkowski, in consultation with other senators, prepared a draft act on the disciplinary system of judges. It provides, inter alia, for the liquidation of the Disciplinary Chamber of the Supreme Court. – This is the best of the proposed solutions – assessed Hermeliński. However, he admitted that he had concerns whether it would be implemented.
He pointed out that the Senate’s bill says that the judgments issued by 10 members of the Disciplinary Chamber are invalid. In his opinion, it should be “put it differently”. – If something is annulled, it means that before that it was important, and yet these were not sentences. A judgment issued by a panel in which there are no judges is not a judgment, it is a decision, but it does not have the quality of a judgment. You could call it non-existent decisions, he proposed.
He noted that the Senate’s bill assumed the termination of the legal relations of the “so-called judges” of the Disciplinary Chamber. – It seems to me that the project initiator rightly accepted here that these people do not retire, because since they are not judges, the provisions of Articles 180 of the Constitution on retirement do not apply to them. They probably should return to their previous professions – legal counsel, prosecutor or judges of common courts – said Hermelińki.
In his opinion, the powers of the unrecognized ID should be transferred to the Criminal Chamber and the Chamber of Labor and Social Security of the Supreme Court. As he pointed out, the bill proposed by the senators additionally “repealed the provisions of the muzzle act, which introduced the greatest restrictions to judges, and was inconsistent with the constitution.”
– It would be good for this project to come into effect, then we would return to normal. Then this significant part of the devastation of the judiciary would be withdrawn – said the TVN24 guest
Main photo source: TVN24