The State Tribunal discontinued the proceedings regarding Małgorzata Manowska's immunity

On Friday afternoon, the State Tribunal's website published a decision, along with a justification, dismissing the case concerning the immunity of First President of the Supreme Court, Małgorzata Manowska. The justification cited, among other things, the lack of a quorum in the Tribunal and the absence of a motion from a legitimate prosecutor.

A three-judge panel of the State Tribunal on Thursday dismissed the proceedings regarding the prosecutor's office's motion to waive the immunity of the First President of the Supreme Court and the chairperson of the State Tribunal, Małgorzata Manowska. The panel included three judges of the Court of Justice: Piotr Andrzejewski (chairperson), Piotr Sak, and Józef Zych. Judge Sak stated that the reason for the dismissal was the lack of a quorum and the absence of a qualified prosecutor.

On Friday, the decision was published on the website of the State Tribunal along with its justification, the justification of the dissenting opinion to the justification of the decision submitted by Piotr Andrzejewski, and the justification of the dissenting opinion to the decision submitted by Józef Zych.

In the published decision of the Court of Justice, we read that the Tribunal decided to "discontinue the proceedings due to the inability to adopt a resolution due to the failure to meet the statutory quorum requirement of the State Tribunal, as well as due to the lack of an application originating and submitted by an authorized and authorised prosecutor."

Moreover, as added, the Court of Justice "decided to refuse the motion of the prosecutor delegated to the National Prosecutor's Office to exclude members of the State Tribunal, Piotr Andrzejewski and Piotr Sak, from participating in the case and to leave it in the files without consideration due to the lack of a motion originating and filed by an authorized and authorised prosecutor."

Regarding the composition of the Tribunal of Justice, the justification indicated, among other things, that Manowska, who is also the Chairwoman of the Tribunal, was legally removed from office during the deliberations and vote. As noted, 12 other Tribunal of Justice judges were also excluded. The justification states that "the finally determined and formed composition of the Tribunal of State does not meet the quorum requirement arising from Article 15a, paragraph 1 of the Act on the Tribunal of State." It emphasized that "the lack of the required number of members constitutes a formal obstacle and results in the inability to issue a substantive ruling."

The second issue highlighted in the justification is "the status and authorization to act of the person signing the motion to waive the immunity of the President of the State Tribunal, i.e. the Head of the Internal Affairs Department of the National Prosecutor's Office, Dariusz Makowski."

The justification referred to the case from early 2024, when Prosecutor General Adam Bodnar dismissed Dariusz Barski from his position as national prosecutor, pointing to the ineffective reinstatement of him to active service from retirement two years earlier.

“In the opinion of the Tribunal of State, on 12 January 2024, the Prosecutor General took actions contrary to the applicable legal status, leading to the actual dismissal of Dariusz Barski from the position of National Prosecutor, who also serves as the First Deputy Prosecutor General,” the decision stated.

Therefore, a situation arose in which the appointment of Prosecutor Makowski was handed over by Jacek Bilewicz, who, as assessed in the justification, was illegally appointed as the acting National Prosecutor by then-State Prosecutor Adam Bodnar. Therefore, as indicated, the Court of Justice does not treat Prosecutor Makowski as a legitimate prosecutor before the State Tribunal.

In addition to the justification, the Court of Justice also published on its website the dissenting opinions of Judges Piotr Andrzejewski and Józef Zych. They raise doubts regarding the recusing of Court of Justice judges from adjudicating, as well as the provisions governing the Court's operation in the event of recusing individual judges. In his dissenting opinion, Zych emphasized that he disagrees with the Court of Justice's ruling and its justification, "primarily considering it premature."

In July, the National Prosecutor’s Office filed a motion to waive the immunity of First President of the Supreme Court Małgorzata Manowska, who is also ex officio the Chairwoman of the Tribunal of Justice, on suspicion of having committed three crimes, including failure to fulfill her duties by failing to convene a full bench of the Tribunal of State within the statutory deadline to repeal its current rules and adopt new ones.

Furthermore, the prosecutor's office's motion is related to the suspicion that Manowska exceeded her authority by recognizing the validity of the Supreme Court Board votes despite the lack of a quorum, and by failing to fulfill her duties by failing to implement the final decision of the District Court in Olsztyn regarding the resolution of the then-Supreme Court's Disciplinary Chamber suspending Judge Paweł Juszczyszyn. The Olsztyn court then granted the motion to suspend the effectiveness and enforceability of this Supreme Court resolution.

Five judges of the Court of Justice then requested a full court hearing regarding the prosecutor's motion. In August, it was announced that the full court hearing in this case would take place on September 3rd. Manowska's attorney then filed a motion to exclude from the adjudicating panel the group of judges who had been questioned as witnesses in the case concerning the failure to convene the Court of Justice hearing. He pointed to the provisions of the Code of Criminal Procedure, which state that a judge is legally excluded from participating in a case if they "witnessed the act in question or were questioned as a witness in the same case."

The motion was considered at a closed session of the Court of Justice by a three-person panel: presiding Judge Andrzejewski, and members – Judges Zych and Sak – decided to recuse 12 Court judges from the case. Manowska's attorney, Bartosz Lewandowski, stated at the time that the Court did not have the necessary composition to consider the prosecutor's motion.

According to the National Prosecutor's Office, he incorrectly applied the regulations when deciding to recuse 12 judges of the State Tribunal. Consequently, on September 3rd, the prosecutors appeared at the State Tribunal session, as did a group of judges, including Vice-President of the Tribunal Jacek Dubois, who rejected the decision to recuse them from the case, believing that the provisions of the Code of Criminal Procedure do not apply to immunity cases. A brawl broke out at this session: raised voices, verbal arguments, and interruptions.

Eventually, Andrzejewski announced a recess, and he and some of the judges left. After a while, Lewandowski informed journalists that he had received information from Andrzejewski, as the presiding judge, that the hearing had been adjourned indefinitely. However, 11 judges of the Court of Justice re-entered the courtroom, and Judge Zych, among them, announced the adjournment of the hearing until September 22nd. The following day, Andrzejewski declared that the scheduling of the Court of Justice hearing for September 22nd by someone other than the presiding judge was unauthorized.

Pursuant to Article 200 of the Constitution, the consent of the Constitutional Tribunal is required to hold a member of the State Tribunal criminally liable. (PAP)

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