What will happen in the Constitutional Tribunal on 28 April 2021?

The Constitutional Tribunal of the Republic of Poland will hold a hearing on Wednesday, 28 April at 1 p.m., on the constitutionality of EU legislation defining the obligations of Member States to enforce securing orders issued by the CJEU (case ref. P 7/20).

The question was presented by former prosecutor Małgorzata Bednarek from the Disciplinary Chamber of the Supreme Court, who wants the Constitutional Tribunal to assess whether the imposition of security measures by the Court of Justice of the EU – the so-called interim measures – is in line with the Polish Constitution. The CJEU imposed such a safeguard on the Disciplinary Chamber on 8 April 2020 by prohibiting it from operating in disciplinary cases regarding judges.

The then First President of the Supreme Court, Professor Małgorzata Gersdorf immediately suspended the activities of the Chamber, but when her term of office ended and she herself retired at the end of April 2020, her decision to freeze the Disciplinary Chamber was immediately reversed by Kamil Zaradkiewicz, appointed by President Duda as acting First President of the Supreme Court. The decision on the reversal was upheld by the new First President of the Supreme Court, Małgorzata Manowska.

Since then, the Disciplinary Chamber of the Supreme Court, which does not give any guarantee of independence and impartiality, has been ignoring the interim measures imposed by the CJEU and, taking the view that the security measure only applies to proceedings regarding the disciplinary liability of judges, has not been examining these cases, but has simultaneously been dealing with cases of far greater severity, namely those intended to lift a judge’s immunity, which are those intended to hold a judge criminally liable.

This is precisely what happened, among others, in the cases of independent judges Beata Morawiec and Igor Tuleya, both of whom may be charged by the prosecutor’s office as a result of the actions of the Disciplinary Chamber.

Full text https://www.rechtersvoorrechters.nl/statement-of-retired-constitutional-tribunal-judges-of-27-april-2021/

Given that Poland is not implementing the CJEU’s interim measure and is allowing the Disciplinary Chamber to operate, the European Commission has recently requested the imposition of further security measures by the CJEU. We expect this decision any day now.

In the justification of the question, Prosecutor Bednarek mentions that the CJEU ordered Poland to implement an interim measure related to the form and functioning of the constitutional bodies of judicial authority, even though these matters were not transferred to the European Union or its bodies under an international agreement. Therefore, the Chamber takes the view that the imposition of such a measure on our country breaches the principles enshrined in the Constitution for delegating powers to an international organisation or body, and results in the state acting in breach of the principles of a democratic state governed by the rule of law and legalism.

The Prosecutor General and the Ministry of Foreign Affairs agreed with Prosecutor Bednarek’s allegations. The former noted in his position paper that the obligation of an EU Member State to implement interim measures regarding the shape of the system and functioning of the constitutional bodies of judicial authority should be deemed unconstitutional. In turn, the Ministry of Foreign Affairs emphasised that the Luxembourg court does not have the competence enabling it to order such measures beyond what has been entrusted to the EU by the Member States. ‘No institution of the European Union can interfere in the organisational structure and principles of operation of the Supreme Court,’ reads the ministry’s position paper submitted to the Constitutional Tribunal.

We would like to reiterate that the CJEU has repeatedly addressed the argument that is being repeated by the ruling party that, although the organisation of the justice system in the Member States falls within the competence of the latter, when exercising that competence, Member States are still obliged to comply with their obligations under EU law.What will happen in the Constitutional Tribunal on 28 April 2021?

Ombudsman Adam Bodnar joined the case before the Constitutional Tribunal, taking the view that the proceedings in this case should be discontinued for several reasons. Firstly, the Ombudsman argues that the Disciplinary Chamber is not a court in the meaning of the Polish Constitution and the law of the European Union. This has already been confirmed by the Supreme Court, including in the resolution of the three combined chambers of 23 January 2020, as well as by the ordinary courts in the cases of the repressed judges, Igor Tuleya, Beata Morawiec and Paweł Juszczyszyn.

Bodnar recalls that the Constitution provides that a legal question can be asked by a court, namely a state body of judicial authority, which is separate from and independent of the executive and legislative authorities. ‘The Disciplinary Chamber of the Supreme Court does not have these qualities and therefore cannot submit legal questions to the Constitutional Tribunal,’ the Ombudsman wrote.

According to the Ombudsman, the examination of the constitutionality that Prosecutor Bednarek is trying to initiate is of an ostensible nature and is being performed instrumentally. It serves the purpose of legalising solutions and actions that are, in fact, unconstitutional. The procedure of the legal question is being used to undermine the binding force of the order of the Court of Justice to suspend the Chamber of which the questioner is a member, and, in fact, it aims to legitimise the people appointed to the Disciplinary Chamber.

Finally, it should be pointed out that the Constitutional Tribunal will be adjudicating in this case with a so-called ‘stand-in judge’, namely a judge appointed to fill an office that was already filled. Furthermore, the membership of the panel includes former PiS MPs Krystyna Pawłowicz (presiding judge) and Stanisław Piotrowicz, who, as MPs in the Polish Sejm, actively co-created the legislation introducing the unconstitutional changes to the Polish justice system, including the establishment of a Disciplinary Chamber of the Supreme Court and then, as members of the neo-NCJ, participated in the process of appointing judges to the Supreme Court, including Prosecutor Bednarek, who has posed the question.

Now, as judges of the Constitutional Tribunal, they are to make an assessment that is directly related to their previous political activity and acts which they enacted. Their own activities have contributed to making illegal changes in the judiciary and creating a serious constitutional crisis.

This disqualifies these people from adjudicating on this case. Their involvement gives rise to the most serious concerns about the reliability of the proceedings and the legality of their outcome, since – as the Ombudsman claims – they were appointed to the adjudicating panel not to objectively and impartially assess the issues and arguments submitted to the Tribunal, but on the contrary, they were appointed to provide protection for the actions of the national authorities that breach the Constitution of the Republic of Poland.

The consequences of Wednesday’s decision of the Constitutional Tribunal may be exceptionally severe for Poland. The question Prosecutor Bednarek from the illegal Disciplinary Chamber posed is a milestone towards a legal PolExit. When joining the European Union, we agreed to be bound by the legal rules in force in the Union, which, in turn, means that we should unconditionally abide by the decisions issued by the most important court in the Union.

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