Disciplinary Chamber of the Supreme Court revokes the suspension of Judge Juszczyszyn

• On 23 May 2022, the Disciplinary Chamber of the Supreme Court adopted a resolution to revoke the suspension of a judge of the District Court in Olsztyn, Paweł Juszczyszyn, from his official duties, assessing the measure as excessively long-term and interfering with the constitutional principle of the irremovability of judges.
• Having been suspended for more than two years, Paweł Juszczyszyn remains the longest-suspended Polish judge and his case is the most emblematic example of disciplinary consequences imposed for a specific procedural decision.
• The reinstatement of suspended Polish judges is one of the three main conditions for the European Commission’s approval of the Polish National Recovery Plan.

Resolution of the Disciplinary Chamber of the Supreme Court of 23 May 2022

The statement of grounds for the Supreme Court’s Disciplinary Chamber resolution of 23 May 2022 is, by and large, devoted to clarifying that rulings made by common courts have been irrelevant to the matter of Judge Juszczyszyn remaining suspended from his official duties. According to the Disciplinary Chamber, the judge’s case does not belong to the realm of civil law or employment law thereby falling within the exclusive jurisdiction of the Disciplinary Chamber.

Referring to the merits of the case of Judge Juszczyszyn’s suspension, the Disciplinary Chamber of the Supreme Court pointed out, in particular, that the period of suspension, which had lasted for more than two years, was excessively long. In the Disciplinary Chamber’s view, considering the degree of harm presented by the alleged disciplinary offences against the judicial service and the interests of the administration of justice, nothing justifies the further application of the suspension, which should be a measure of an extraordinary and temporary nature. The Disciplinary Chamber held that an extension of the suspension would only be justified if Judge Juszczyszyn faced a realistic penalty of being removed from office, which he does not. Otherwise, the continuation of the suspension would undermine the constitutionally protected principle of a judge’s irremovability.

The Disciplinary Chamber also emphasised that the accuser’s contention that the disciplinary offence also presents features of a criminal offence cannot be an intrinsic reason for the application or extension of the judge’s suspension in official duties. The investigation conducted by the National Prosecutor’s Office into the alleged abuse of powers by the judge has yet to produce sufficient evidence of a reasonable suspicion that an offence of abuse of powers has, in fact, been committed.

In effect, the Disciplinary Chamber of the Supreme Court passed the resolution to revoke the suspension of Judge Paweł Juszczyszyn and to restore his full salary.

Disciplinary proceedings against Judge Paweł Juszczyszyn

Paweł Juszczyszyn, a judge of the District Court in Olsztyn, has been suspended from his official duties since 29 November 2019. Despite the presentation of disciplinary charges and submission of a disciplinary indictment to the Disciplinary Chamber of the Supreme Court, the proceedings in his case have not been initiated for more than two years.

In November 2019, Paweł Juszczyszyn, as a judge seconded to the Regional Court in Olsztyn, heard an appeal against a judgment of a district court that sat in a composition that included a judge appointed on the nomination of the “new” National Council of the Judiciary (NCJ) formed in 2018. Bearing in mind the decision of the Court of Justice of the European Union of 19 November 2019 in Joined Cases C-585/18, C-624/18 and C-625/18, which lays down the criteria for assessing the independence of the NCJ, Judge Juszczyszyn issued an order directing the Head of the Chancellery of the Sejm to submit applications and lists of citizens and lists of judges supporting candidates for members of the National Council of the Judiciary, as well as statements by citizens or judges on the withdrawal of support for these candidates, and to send these documents to the court.

On 27 November 2019, a Deputy Disciplinary Officer for the Judges of Common Courts presented Judge Juszczyszyn with four disciplinary charges, one of which concerned the unlawful issuance of an order requiring the delivery of copies of designated documents relating to candidates for members of the National Council of the Judiciary. Subsequently, the President of the District Court in Olsztyn decreed (by order of 29 November 2019) that Judge Pawel Juszczyszyn should be suspended from performing his duties for 30 days, the maximum period the president was authorised to impose. The president justified his decision by arguing that the disciplinary charge in question exhibits the features of a criminal offence prosecuted ex officio.

It was the Disciplinary Chamber of the Supreme Court that decided on the further suspension of Judge Juszczyszyn. At first, the Disciplinary Chamber issued a resolution on 23 December 2019 revoking the order of the President of the District Court in Olsztyn on the grounds that the suspension was unjustified. However, this resolution was challenged by a Deputy Disciplinary Officer. On appeal, a different panel of the Disciplinary Chamber ruled, on 4 February 2020, that Judge Paweł Juszczyszyn should be suspended sine die (pending the determination of the disciplinary charges) and reduced his salary by 40 per cent. As it was pointed out, Judge Juszczyszyn’s conduct amounted to “jurisprudential misconduct” that endangered the interest of the peaceful work of other judges, and his jurisprudential conduct lacked a legal basis and justification.

Since 2021, Judge Pawel Juszczyszyn has taken legal steps to be reinstated to his official duties. In April 2021, the District Court in Bydgoszcz granted Judge Juszczyszyn’s motion for interim relief pending the outcome of his case in an employment court. The Bydgoszcz court ordered the District Court in Olsztyn to reinstate the judge to judicial duties. This decision became unappealable but the President of the District Court in Olsztyn refused to execute it. In December 2021, the District Court in Bydgoszcz, sitting as an employment court, entered an appealable decision to reinstate Judge Paweł Juszczyszyn in his official duties. Consequently, Judge Juszczyszyn appeared in his home court and was allowed to perform his duties for a few hours by the court’s deputy president. However, on the same day, the Minister of Justice appointed the previous president of the District Court in Olsztyn court for the second term, and the re-appointed president immediately decided to renew Judge Juszczyszyn’s suspension. Moreover, in May 2021, the European Court of Human Rights communicated the case brought on Mr Juszczyszyn’s application to the Polish Government.

European Commission: reinstatement of suspended judges a condition for the approval of the National Recovery Plan

The reinstatement of suspended Polish judges is one of the conditions which the European Commission expects to be met for its acceptance of the National Recovery Plan prepared by the Polish Government. The EC spokesperson said that the Polish NRP must include commitments to dissolve the Disciplinary Chamber of the Supreme Court, reform the system of disciplinary regime for judges and reinstate judges who have been suspended from judicial duties.

The revocation by the Disciplinary Chamber of the Supreme Court of the decision to suspend Judge Paweł Juszczyszyn from performing his duties can be seen as the first step towards the actual implementation of the last of the Commission’s conditions. However, the number of judges suspended from adjudicating in Poland has been steadily increasing.

The Common Courts Act provides for the possibility for the president of a court or the Minister of Justice to suspend a judge from his or her duties for a period of 30 days “if, in view of the nature of the judge’s conduct, the dignity of the court or the vital interests of the service require his or her immediate removal from the performance of his or her duties”. The above provision served as a basis for court presidents’ decisions to suspend, among others, Judges Maciej Ferek and Piotr Gąciarek, who refused to rule in panels with judges appointed by the new NCJ. Their suspension, originally imposed in November 2021, was later extended indefinitely by the Disciplinary Chamber. Judge Igor Tuleya, on the other hand, has been suspended from his judicial duties on 19 November 2020 by a resolution of the Disciplinary Chamber to lift his immunity in connection with a criminal inquiry into the alleged abuse of powers which involved allowing representatives of the media to participate in a closed-door hearing in 2017.

Status of the Disciplinary Chamber of the Supreme Court

The status of the Disciplinary Chamber of the Supreme Court has so far been repeatedly questioned in the jurisprudence of international and Polish courts.

In a landmark judgment of 19 November 2019 (Joined Cases C-585/18, C-624/18 and C-625/18), the Court of Justice of the European Union specified the criteria that a national court should follow when assessing judicial independence, including the method of appointment of judges. Implementing that decision, on 5 December 2019, the Supreme Court delivered a judgment in which it ruled that the Disciplinary Chamber of the Supreme Court “is not a court within the meaning of EU law and is therefore not a court for the purposes of national law” (case no. III PO 7/19). In January 2020, a resolution was passed by the three combined Chambers of the Supreme Court in which the Supreme Court held that any proceedings pending before the Disciplinary Chamber were null and void.

In April 2020, the CJEU issued an order directing Poland to suspend the jurisdiction of the Disciplinary Chamber in disciplinary cases against judges. Subsequently, in a judgment of 15 July 2021, the Grand Chamber of the CJEU ruled that the Disciplinary Chamber does not fully provide the necessary guarantees concerning its independence and impartiality (Case C-791/19). A day earlier, in another infringement proceeding before the CJEU, Poland was ordered to suspend the jurisdiction of the Supreme Court Disciplinary Chamber in cases concerning judicial immunity (Case C-204/21 R).

The status of the Disciplinary Chamber has also been commented on by the European Court of Human Rights. In the Reczkowicz v. Poland judgment of 22 July 2021 (no. 43447/19), the ECtHR held that the accumulation of infringements of law in connection with the establishment of the Disciplinary Chamber meant that it could not be regarded as a court established by law.