The issue of delegating judges to adjudicate in other courts—mainly higher instances—is something the Ministry of Justice aims to address swiftly and partially through an amendment to the law on the structure of common courts. The draft has just entered the stage of coordination and consultations. This amendment is crucial and urgent because after 8 years of Minister Zbigniew Ziobro’s tenure, the courts are in a crisis. Proceedings are taking longer, and backlogs are increasing. This is a result of Ziobro’s focus on personnel changes among judges instead of reforming the judiciary. The goal was to subordinate the courts to the Law and Justice party.

Courts at higher instances are facing a dire situation. For example, at the Warsaw Court of Appeal, one has to wait 2-3 years for a trial date. The problems are further compounded by the fact that in recent years, higher instance courts have been staffed with flawed neo-judges. Their rulings are consequently overturned.

Partially improving the situation could involve delegating judges from lower instances to courts facing the most severe staffing issues. This authority rests with the Minister of Justice and the presidents of appellate and district courts.

The problem is that during Ziobro’s tenure, not all judges had access to delegations. Judges involved in defending the rule of law had no chance of receiving delegations, whereas future neo-judges did. They used delegations as a stepping stone for promotions, which were later granted by the illegal neo-National Council of the Judiciary.

Towards the end of PiS’s tenure, the ministry delegated Dagmara Pawełczyk-Woicka, the chair of the neo-National Council of the Judiciary, to the Warsaw Court of Appeal. In this court, other neo-judges and presidents of Warsaw courts were or still are on delegation. In the District Court in Gorzów Wielkopolski, former neo-National Council of the Judiciary member Jarosław Dudzicz continues to adjudicate while on delegation. The ministry has initiated the procedure to remove him from the position of president of the District Court in Gorzów Wielkopolski.

Ziobro’s ministry also swiftly revoked delegations for judges who fell out of favor. The first to lose her delegation to the Warsaw District Court during PiS’s rule was Judge Justyna Koska-Janusz, who had prosecuted a case against Ziobro years ago. The ministry did not provide a reason for revoking her delegation. It didn’t have to, as the law on courts does not require justification for such decisions.

After journalists’ inquiries, the ministry issued a statement accusing her of alleged errors in handling one of the cases. It was just a pretext. The judge sued Ziobro’s ministry over this statement, and the courts ordered an apology from the ministry. The judgment was executed by the new Minister of Justice, Adam Bodnar.

In 2017, Judge Paweł Juszczyszyn also had his delegation to the District Court in Olsztyn revoked. This happened after he demanded support from the Sejm for the neo-National Council of the Judiciary. Judge Marek Nawrocki from the Gdańsk Court of Appeal also lost his delegation. He was delegated to the Gdańsk Court of Appeal but didn’t even start adjudicating there because his delegation was revoked. Nawrocki participated in issuing a ruling that found delays in handling citizens’ cases by Judge Michał Lasota, the deputy disciplinary spokesperson.

In November 2021, the European Court of Justice (ECJ) addressed the issue of judge delegations. The preliminary questions in this case were posed by Judge Anna Bartor-Ciesielska from the District Court in Warsaw, who refused to adjudicate alongside the disciplinary spokespersons appointed by Minister Ziobro. These spokespersons were Przemysław Radzik and Michał Lasota, who adjudicated while on delegation in this court in 2019.

In response to these questions, the ECJ issued an important judgment.

It ruled that delegating judges by the Minister of Justice to higher instance criminal courts based on undisclosed criteria is contrary to EU law. The ECJ emphasized that the Minister of Justice also serves as the Attorney General and can revoke a judge’s delegation at any time without providing justification. This undermines the independence of judges because through such delegations, the minister can influence judges’ rulings.

The ECJ also clarified the EU standard for delegating judges. It stated that regulations governing delegation must include necessary guarantees to avoid the risk of using delegation for political control over judicial decisions. The decision to delegate a judge and the decision to terminate the delegation should be based on pre-established criteria and must be properly justified. The decision should be subject to judicial review.

Following this judgment, Polish judges began to challenge rulings issued with the participation of judges delegated by Minister Ziobro’s ministry. As a result, they faced reprisals in the form of disciplinary actions. And now, Minister of Justice Adam Bodnar wants to execute this ECJ judgment. In March 2024, there were 260 judges on delegation.

Judge Anna Bator-Ciesielska, among others, was pursued by the chief disciplinary spokesperson, Piotr Schab, due to her submission of preliminary questions to the ECJ regarding the delegation of judges. He initiated disciplinary proceedings against her, even threatening her with indefinite suspension by the illegal Disciplinary Chamber. In 2024, her disciplinary case was taken over by the extraordinary spokesperson of the Ministry of Justice, who withdrew it from the disciplinary court. In this situation, the disciplinary court dismissed her case.

The system of delegating judges is to be clear and based on criteria. According to a draft of a short amendment to the law on the structure of common courts presented by the Ministry of Justice, criteria for delegating judges will be introduced. It will no longer be a discretionary decision of the minister.

The draft states:

“The delegation of a judge to perform judicial duties in another court is carried out in cases of justified needs of that court, particularly when the number and type of cases coming to the court, the degree of backlog of cases, and the average workload of the judge or court assessor in relation to the value of these parameters in other courts, including the number of filled judicial and assessor positions, prolonged absences of judges and court assessors, and planned vacancies of judicial positions in the court to which the delegation is to take place, speak for it.”

Furthermore: “When delegating a judge to perform judicial duties in another court, particular consideration is given to the period of judicial service, including in the position held, experience in adjudicating cases in a specific area, efficiency in handling cases, and assessment of the impact of delegation on the work of the court where the judge is stationed.”

The project proposes that judges cannot be arbitrarily removed from such delegations anymore. The minister’s decision will have to be justified, unlike the current situation where justification is not required. Importantly, all decisions regarding the delegation and revocation of delegation for judges will be published in the Public Information Bulletin. The reasons for delegation and revocation will also be provided there.

Minister Bodnar also aims to standardize financial matters for delegated judges. He suggests a supplement equivalent to 12.5% of a judge’s salary, which would increase to 25% after six months of delegation.

There is a chance that after the parliament passes the amendment, President Andrzej Duda will sign it into law. This is because the amendment does not affect changes in the courts that were initiated by the president and subsequently questioned by the ECJ, ECHR, and the Polish Supreme Court.

The article was published in Polish in OKO.press on 29 April 2024.