RESULTS of the referendum – judges’ opinions on the activities of the National Council of the Judiciary, as at 27 December 2018 (notice 10)

Question 1. Do you believe that the current National Council of the Judiciary is properly performing its obligations as defined by Article 186, section 1 of the Constitution of the Republic of Poland?

yes            no         no opinion

percentage of those who voted:

4.9%     90.9%      4.2%

numbers of judges who voted: 3,308

161       3,007        140

Question 2. Do you believe that judges – members of the National Council of the Judiciary should resign from their posts?

yes          no          no opinion

87.3%    4.6%     8.1%

numbers of judges who voted: 3,308

2,881     152       267

Courts in which voting has ended: 139

Reasons for asking for the judges’ opinions on the activities of the judges who are members of the National Council of the Judiciary: § 5 section IV of Rules of Judicial Ethics: A judge should require other judges to behave impeccably and observe the principles of professional ethics, as well as to react properly to misconduct.

It is common knowledge that PiS acted in breach of the Constitution when it dissolved the independent KRS and appointed a new one, in which the majority of the 15 posts guaranteed for judges were given to judges cooperating with the Ministry of Justice headed by Zbigniew Ziobro.

Furthermore, in conflict with the Constitution, they were chosen by the Sejm and not by the judges themselves, as previously.

Judges believe the election was illegal. The new KRS is a body carrying out political orders from the PiS authorities which does not protect the judges or their independence.

The clear reaction of the judges was not hampered by disciplinary proceedings initiated against the most active of them by the Disciplinary Commissioner appointed by Minister Ziobro.

Related content: List of judges prosecuted by the Disciplinary Commissioner for the ordinary courts

Courts pass resolutions against the National Council of the Judiciary.

The judges are expressing their disapproval of the new KRS in multiple resolutions passed by individual courts, where the judges refused to provide opinions about candidates for judiciary promotion to be approved by the new KRS. They declared that the contests for new positions are fictional. OKO.press published information about these resolutions.

There were also resolutions defending independence and criticising the new KRS. Such resolutions were passed by judges from Kraków, who were the first to act to defend the independence of the judiciary from the new President of the court.

Similar resolutions were also passed by judges from other courts, including in smaller towns. Importantly, also the largest court in Poland, the District Court in Warsaw, is speaking out bluntly to defend the judiciary from subordination to the PiS authorities.

Two courts passed resolutions with very strong messages just before Christmas.

Lublin: Judges are required to respond to threats.

In Lublin, the resolutions were passed by the judges of the Regional Court and Assembly of Representatives of Judges of the Region of the Regional Court in Lublin. Judges from Lublin expressed their support for judges threatened by disciplinary action for defending their independence.

‘We thank the judges who are taking part in the public discourse and defending the foundation of the rule of law. The right of judges to speak publicly about the functioning of the judiciary is a reflection of the constitutional principle of freedom of speech, confirmed by the case-law of the European Court of Human Rights.

Furthermore, we are convinced that, according to the oath sworn at the beginning of their service, judges are obliged to highlight the threats to independence of courts and judges and to warn against such threats, no matter which political party is in power in the parliament or government.

Describing judges who criticise certain legislative solutions or actions of institutions which affect the functioning of judiciary as ‘parties to a political dispute’ is unethical and offensive’. The full wording of the resolutions is available here.

Warsaw: the disciplinary proceedings will be verified in the future

The Assembly of Representatives of Judges of the Regional Court in Warsaw also unanimously passed resolutions. One resolution states directly that the Disciplinary Commissioner, Piotr Schab, and his deputies Przemysław Radzik and Michał Lasota, all appointed by Minister Ziobro, pose a threat to the independence of judges and compromise the interests of the judiciary by their actions taken against judges.

‘The Assembly of Representatives of Judges of the Region of the Regional Court in Warsaw ascertain that any actions of judges actively involved in the scheme to subordinate the courts and judges to political control and taking repressive actions against judges for:

• their adjudication

• their participation in public debates

• their defence of the independence of the courts and judges

will have to be examined and evaluated in diligent disciplinary proceedings based on provisions complying with the Constitution and guaranteeing a full right of defence.

It is never too late to withdraw from actions breaching judicial ethics and serving the political plans of the minister of justice”.

Warsaw’s judges also resolved that:

• they will refrain from providing opinions on the promotion of judges to the new KRS until the Court of Justice of the European Union reviews the requests for preliminary rulings;

• they will reiterate the basic values that should guide all judges.

The Assembly of Representatives of Judges of the Region of the Regional Court in Warsaw reminds all judges that, before taking up office, they swore an oath to faithfully serve the Republic of Poland and to abide by the principles of dignity and integrity in all their actions. This oath is binding on all judges, including those fulfilling their regular responsibilities and those delegated to administrative tasks in the ministry of justice or organisational units supervised by the minister of justice, regardless of the position held. Additionally, appointment to the position of a disciplinary commissioner does not release them from the oath, emphasised the resolution of judges from Warsaw.

The full wording of the resolutions is available here.

And Duda keeps repeating: ‘Judges are a degenerated milieu’

Over the past year, judges have shown that they are united in defending their independence and in setting an example for other judges, especially those in smaller towns. PiS has no intention of giving up the subordination of the judiciary to its own will, despite recent concessions made to Brussels on the Supreme Court.

This attitude may be evidenced by the interview with Andrzej Duda on Sunday, 30 December 2018. In response to the journalist’s question about further changes in the courts, he stated that the milieu of judges is ‘extremely influential’.

‘Those remarkable political demonstrations of the milieus of judges show how degenerated those milieus are (…) They act in a way in which judges should never indulge. […] Of course, a judge has a right to his or her political views, but these should be personal opinions, not taken to streets, demonstrated in the media and elsewhere,’ attacked the President.

Przyłębska to the rescues

The new KRS hopes that its legality will be confirmed by the Constitutional Tribunal, now dominated by PiS, as the Council itself requested the Tribunal to verify the lawfulness of its election. The acting Chairperson of the Constitutional Tribunal was assigned to chair the hearing of this case.

The Legislative Committee of the Sejm approved an opinion supporting the lawfulness of the new KRS with votes of PiS MPs on Friday 28 December.

The hearing at the Constitutional Tribunal was planned for 3 January 2019, but in the evening of 31 December 2018, judge Jarosław Dudzicz, a member of the KRS, tweeted the following notice:

‘With regard to the petition filed by the #KRS with the #TK, I was notified today that the hearing at the #TK planned for 03/01/2019, 12 o’clock has been cancelled. Information on the new date of the hearing will be sent in a separate communication’