Some background:

Judges repressed for implementing CJEU verdict

Alongside the two judges from Katowice, other justices have already begun paying their price in the form of disciplinary charges brought against them for implementation of the CJEU verdict and questioning the legality of the NCJ and Supreme Court Disciplinary Chamber:

1. Judge Paweł Juszczyszyn from Olsztyn, the first judge in Poland to implement the CJEU verdict. He demanded that the Chancellery of the Sejm present the list of signatures submitted in support of candidates to the new NCJ.

2. Judges from the District Court in Kraków. Prior to the CJEU verdict, Rafał Lisak, Wojciech Maczuga, and Kazimierz Wilczek sought to determine the status of a magistrate who issued a verdict in the first instance. They inquired whether he had been appointed by the new NCJ, and merely for this question they were brought up on disciplinary charges. It then turned out that the magistrate had been appointed by the old, legitimate NCJ.

3. Judge Krystian Markiewicz of Katowice, the head of Iustitia. He has been charged with 55 disciplinary offences for a letter addressed to judges in which he questioned the legality of the new NCJ and Disciplinary Chamber. The attack on Markiewicz was designed for maximum impact because of his position as the leader of Iustitia, the largest association of judges in Poland and an active defender of judicial independence. Nevertheless, judges refused to be frightened by the number of charges.

4. Judge Anna Bator-Ciesielska from the Warsaw District Court. Her disciplinary charges stem from her refusal to adjudicate in a case with disciplinary officer Przemysław Radzik, and for querying his status as a delegated judge. In this case, Judge Bator-Ciesielska applied to the CJEU for a preliminary ruling. She did not want to adjudicate with Radzik because of his name appearing in the context of a smear campaign involving the Ministry of Justice. On 6 December she was charged with 5 disciplinary offences, including for speaking to the press.

More repressions against judges

The disciplinary officer nominated by Zbigniew Ziobro initiated with lightening speed disciplinary proceedings against Judges Aleksandra Janas and Irena Piotrowska from the Court of Appeals in Katowice.

Apparently, the matter was so urgent that he had to issue the charges against them on Sunday 15 December.

Deputy disciplinary officer Przemysław Radzik accused the judges of “committing a disciplinary offence.”

Let’s look at a fragment of the charges to understand their astonishing logic.

The judges, according to Radzik “on 11 December 2019 in Katowice violated the dignity of their office in the following manner: as public functionaries acting as the chair and member, respectively, of the judicial panel ruling in the case before the Court of Appeals in Katowice (…) abused their office by granting themselves the authority to determine and assess the activity of constitutional authorities of the state as concerns the mode of selection of some members of the National Council of the Judiciary, as well as the mode of appointment of the judge-rapporteur in the case [in which the two judges were adjudicating – editor’s note] and judge of the Court of Appeals in Katowice (…) and participated in the issuing of a motion to apply to the Supreme Court for a ruling on a question of law whose content constitutes unlawful interference in the legal mode of appointing justices to judicial panels.”

Judges Aleksandra Janas and Irena Piotrowska were members of a judicial panel along with Judge Grzegorz Misina, who was promoted to the Court of Appeals by the new and unconstitutionally formed National Council of the Judiciary. This panel was supposed to rule on 11 December concerning an appeal against a divorce verdict of the District Court in Gliwice.

But both judges had doubts as to whether Judge Misina was eligible to adjudicate as a properly appointed judge. That is why they asked the Supreme Court to rule on the status of the judge nominated by the new NCJ and whether he could issue legal judgements. Judge Misina submitted a dissenting opinion.

The next day, the disciplinary officer initiated an investigation into the case. On the same day, both judges posed four similar legal questions to the Supreme Court.
In Przemysław Radzik’s opinion, by exercising their right to file such motions to the Supreme Court, the judges from Katowice may have even violated the Polish Constitution, which states that the President appoints judges. He also accuses them of exceeding their authority in violation of Art. 231 of the Criminal Code.

Article 231 of the Criminal Code reads:

• 1. A public servant who, in exceeding his authority or failing to perform his duties, acts to the detriment of a public or private interest shall be subject to the penalty of imprisonment for a term of up to 3 years.
• 2. If the offender committed the offence defined in § 1 in order to acquire personal and/or material benefits, he shall be subject to the penalty of imprisonment for a term of between 1 and 10 years.
• 3. If the offender responsible for the offence defined in § 1 acted involuntarily and caused significant harm, he shall be subject to a fine, restriction of freedom, or imprisonment for a term of up to 2 years.
• 4. The provisions of § 2 shall not apply if the conduct meets the criteria of the criminal act defined in Art. 228.

The allegation is not accidental, because it means the disciplinary case will be reviewed by the Disciplinary Chamber of the Supreme Court – appointed by the new NCJ and comprised mainly of former collaborators of Justice Minister Ziobro. The disciplinary spokesman stresses that the judges acted “to the detriment of the public interest in the form of the proper functioning of the judiciary”.

Radzik will also ask the Disciplinary Chamber to suspend both judges in their duties until the proceedings are resolved by the Chamber.

The actions by Ziobro’s appointee come as no surprise. The current authorities do not want the legitimacy of the new National Council of the Judiciary and Disciplinary Chamber to be undermined. And the examination of their legality was ordered by the CJEU in a recent judgment. Therefore, the authorities are going to war with independent judges, seeking to punish them for their independence and expel them from their profession. For months now, the repressions have been affecting rebellious judges in the form of disciplinary proceedings.

The authorities of PiS are also seeking to silence them by forcing through an unconstitutional and repressive law that would impose severe sanctions on judges and subject them to harassment for their independence, including for examining the legality of the new NCJ and the Disciplinary Chamber. This law is intended to stifle the independence of judges and subjugate them to the authorities.

[translated by Matthew La Fontaine]