This ruling was issued individually by Bohdan Bieniek, an ‘old’ legal judge of the Supreme Court from the Labour and Social Insurance Chamber. The judge challenged the status of the neo-judge of the Supreme Court, Dr. Marcin Krajewski from the Civil Chamber. He ruled that Krajewski’s participation in benches would lead to the incorrect staffing of the court and would expose the State Treasury to compensation for defective judgments. Because he was appointed to the Supreme Court by the neo-NCJ, which itself was defectively appointed and is connected with politicians.

Furthermore, Judge Bieniek held that a Supreme Court bench that includes a neo-judge would breach Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees citizens the right to a hearing of an independent and impartial tribunal established by law. It also breaches Article 45 of the Constitution, which provides for the right to an independent and impartial court.

While challenging the legality of the neo-judge, Judge Bieniek referred to the still-applicable historic resolution of the full bench of the Supreme Court of January 2020, judgments of the ECtHR and the CJEU, as well as judgments of the Polish Supreme Administrative Court. These rulings challenged the legality of the neo-NCJ and the appointments it had given to neo-judges. This is because the courts and tribunals have acknowledged that the neo-NCJ, which contains judges associated with Minister of Justice Zbigniew Ziobro and who was elected in the Sejm by Law and Justice (PiS) MPs, does not guarantee that the judges they promote will give fair trials to citizens.

This ruling is a signal that the ‘old’ judges of the Supreme Court will continue to apply the judgments of the ECtHR and the CJEU regarding the changes in the courts introduced by the PiS authorities.

Their application was explicitly prohibited for them by the Muzzle Act of 2020 which had been written by PiS. It prohibited judges from challenging the status of neo-judges, as well as challenging the status of institutions established or staffed by the PiS, such as the neo-NCJ and Julia Przyłębska’s Constitutional Tribunal.

However, this prohibition is unconstitutional. Meanwhile, in its interim measure of 14 July 2021, while suspending the illegal Disciplinary Chamber, the CJEU simultaneously suspended the provisions of the Muzzle Act allowing judges to be punished for challenging the status of neo-judges.

Judge Bohdan Bienek’s ruling is yet another ruling by the old Supreme Court challenging the status of neo-judges, which was issued in conflict with the provisions of the Muzzle Act. But he is not the only one in the Supreme Court to challenge the status of the neo-judges of the Supreme Court. Judges from the legal Criminal Chamber, Jarosław Matras and Michał Laskowski, among others, have been doing the same for the past year. Judge Matras has been issuing further such rulings. The latest is dated 6 September 2022. In it, he challenged the status of the neo-judge of the Supreme Court, Małgorzata Bednarek. She is a former prosecutor close to Zbigniew Ziobro, who, until recently, was a member of the liquidated Disciplinary Chamber. The status of the neo-judges is also being contested by legal judges from the Civil Chamber of the Supreme Court.

How neo-judge Zaradkiewicz demanded a test of legal judges

Judge Bieniek issued his ruling in camera on 25 August 2022. That day, he examined the application of neo-judge Dr. Marcin Krajewski of the Civil Chamber, who wanted to be excluded from being a part of the so-called presidential test. This is a test of a judge’s independence and impartiality. It was introduced by the President’s amendment to the Act on the Supreme Court.

The test is supposed to demonstrate whether the way in which the judge was appointed and his conduct after the appointment can affect the outcome of the case which he is to examine. The test is supposed to be the implementation of the ECtHR and CJEU judgments. But it not only allows the impartiality of neo-judges to be tested (whereby their appointment by the neo-NCJ cannot be the only basis of this test), but it also opens the floodgates to challenge the status of legal judges.

And this is already happening. Because another neo-judge of the Supreme Court, Kamil Zaradkiewicz, took advantage of these regulations. He demanded such a test to be applied to three legal Supreme Court judges from the Labour and Social Insurance Chamber. This was about testing the Chamber’s president, Piotr Prusinowski (pictured at the top seated in the middle), Dr Dawid Miasik (pictured at the top seated on the right) and Jolanta Frańczak. They are all in the bench that is to examine a precedent-setting action to establish that Zaradkiewicz is not a Supreme Court judge.

Such an action was filed by Judge Waldemar Żurek of the Regional Court in Kraków. He is the former press officer of the old, legal NCJ, which PiS illegally dissolved during its term of office. Żurek has been defending the independence of the courts since the start of PiS’s rule, for which he is the most repressed judge in Poland. After all, one of his more than 20 disciplinary cases was initiated for suing Zaradkiewicz.

Judge Zurek sued Zaradkiewicz because he does not consider him to be a legal judge of the Supreme Court. This is because he received his nomination from the illegal neo-NCJ. Zaradkiewicz also collaborated with the current authorities. Before he was promoted to the Supreme Court, he worked in Justice Minister Zbigniew Ziobro’s ministry. In the Supreme Court, he briefly served as President Duda’s so-called commissioner, or, in other words, the interim president of the Supreme Court.

Żurek is not the only independent judge who has sued neo-judges of the Supreme Court to establish that they are not legal. There are several such actions. And they are waiting to be examined in the Labour and Social Insurance Chamber. The cases are awaiting the CJEU’s verdict, as preliminary questions have been asked about whether the Supreme Court can assess the status of the neo-judges itself.

There has been a battle over these actions all the time, because the illegal Disciplinary Chamber wanted to take them over. Zaradkiewicz also requested the actions to be transferred to that Chamber when he was a so-called commissioner. Zaradkiewicz’s application to conduct a test of the independence and impartiality of the bench that is to examine Żurek’s action may be an attempt to change the membership of the bench.

Judge Bieniek: a neo-judge cannot pass a legal judgment

Three five-person benches were drawn to conduct a test of the independence and impartiality of the bench ruling in Żurek’s action. Each will perform a test of one of the legal Supreme Court judges. Dr. Marcin Krajewski, namely a neo-judge, was placed on the bench to conduct the test of Judge Jolanta Frańczak. Other than him, three more legal judges, Michał Laskowski, Monika Koba, and Marek Pietruszyński, as well as another neo-judge, Tomasz Szanciło, were drawn to this bench.

Only Krajewski submitted a motion for removal. He referred to the fact that he is an acquaintance of Zaradkiewicz, who requested the test. Krajewski stated that he has known him for 25 years. They were studying for their doctorates together, worked together, and are in touch socially.

But, while examining his application, Supreme Court Judge Bohdan Bieniek removed him from the test for other reasons. He stated ex officio that Krajewski had been appointed by the neo-NCJ, the status of which had been contested by rulings of the Supreme Court, the Supreme Administrative Court, the ECtHR, and the CJEU. Meanwhile, a bench that includes a neo-judge is defective and therefore a ruling issued by it can be contested. This will expose the State Treasury to the payment of compensation.

This means that Krajewski will be replaced by a previously drawn substitute judge. He happens to be an ‘old’, legal Supreme Court judge. However, there is still one more neo-judge, Tomasz Szanciło, in the bench, who is supposed to perform a test of independence and impartiality. The other members of the bench will therefore have to decide whether they will rule with him. If they decide to do so, they will legalize his status. However, it cannot be assumed that the legal judges of the Supreme Court will do this.

The status of neo-judges has rather been challenged previously by judges of the ordinary courts, for which they are being disciplined by Minister Ziobro’s disciplinary commissioners. That is, by chief disciplinary commissioner Piotr Schab and his deputies Przemysław Radzik and Michał Lasota. They are pursuing disciplinary cases against judges, even though the judges refer directly to ECtHR and CJEU rulings. Five judges have been suspended for this by the illegal Disciplinary Chamber, while a further group of independent judges are also under threat of such suspension.

The Supreme Court contested the status of the neo-NCJ and neo-judges in a resolution of the full court in January 2020. And while it still applies to judges, it has not been willingly applied by Supreme Court judges. This did not change until 2021, when the Criminal Chamber started to overturn judgments passed with the involvement of neo-judges from the ordinary courts and when neo-judges of the Supreme Court started to be removed from pending cases. The status of neo-judges of the Supreme Court also started to be contested in the Civil Chamber of the Supreme Court.

Meanwhile, in 2022, a panel of seven judges of the Criminal Chamber issued a resolution in which they specified the principles of the test of a judge’s independence and impartiality. This is not the presidential test, but a test modeled on the principles set out in the ECtHR judgment regarding Iceland. And the Supreme Court has already conducted the first such test of independence of the neo-judge, Jerzy Daniluk, president of the Court of Appeal in Lublin. And it found that he did not satisfy the standard of independence and impartiality because he had linked his career to Minister Ziobro’s ministry and the neo-NCJ. And the Supreme Court overturned the judgment passed with his involvement.

Translated by Roman Wojtasz

The article was originally published in Polish at OKO.press on 6 September 2022.