Several types of harassment are befalling independent judges defending the rule of law and applying European law. Previously, disciplinary proceedings were applied against them on a massive scale. Now, increasingly frequently, ‘rebellious’ judges are being removed from adjudicating on cases which are sensitive to the authorities by Minister of Justice Zbigniew Ziobro’s nominees and collaborators and forcibly transferred to other departments within the court.

The repressions are a retaliation against judges for judgments that the authorities do not like, for applying European law, or for their public activities – because judges meet with citizens and speak critically in the media about the changes the current authorities are making in the courts. They are doing this as members of the Themis and Iustitia associations of judges. Judges have a right to make such public statements; the European Court of Human Rights confirmed this in its judgment in the case of Żurek v Poland.

We estimate that between 100 and 200 judges are being harassed.

The system of harassment of independent judges: disciplinary action, suspensions and now transfers on disciplinary charges

The following are responsible for such actions against independent judges:

• Chief Disciplinary Commissioner for Judges Piotr Schab and his two deputies, Przemysław Radzik and Michał Lasota, who were appointed to these positions by Minister of Justice Zbigniew Ziobro.
• Local disciplinary commissioners, operating at the regional courts and the courts of appeal. The term of office of the previous independent disciplinary commissioners ended in 2022. They were still elected with the participation of the judicial self-governing body and did not initiate proceedings in which the main objective was to strike at judges and create a chilling effect on them. However, their successors are elected by just the chief disciplinary commissioner. This arises from the amended laws on the structure of the ordinary courts (the so-called Muzzle Act), which became effective in mid-February 2020. This change allowed the chief disciplinary commissioner to appoint ‘trusted’ judges as local disciplinary commissioners.
• Court presidents nominated by the Ministry of Justice. Piotr Schab and Przemysław Radzik lead the way here. They first applied official repression in the Regional Court in Warsaw (Schab was its president and Radzik his deputy). Now they are doing this at the Court of Appeal in Warsaw (Schab has been its president and Radzik its vice-president since the middle of 2022). The president of the Regional Court in Kraków, Dagmara Pawełczyk-Woicka, currently the head of the neo-National Council of the Judiciary, was also active in official repression.
• Minister of Justice Zbigniew Ziobro.
• The Internal Affairs Division of the National Prosecutor’s Office, which reports to Prosecutor General Zbigniew Ziobro.
• The new, politicized National Council of the Judiciary. It has started to report judges to the disciplinary commissioners.

Hundreds of disciplinary actions, record holder Judge Żurek

The most common form of repression against independent judges is the initiation of disciplinary proceedings.

Investigative proceedings are first initiated against judges, where evidence should be gathered proving the commitment of a disciplinary offence or a judge’s innocence.

However, the practice in recent years has shown that these proceedings are initiated regularly, including to keep judges in the dark and to create a chilling effect on them. The mere initiation of proceedings is a serious psychological burden for many judges; it casts suspicion on them of doing their job incorrectly.

Practice has also shown that disciplinary commissioners often only initiate the investigation itself and do not end it, keeping judges in the dark for months.

An investigation can end successfully for a judge. Most frequently, however, the disciplinary commissioner proceeds to the second phase or, in other words, he initiates disciplinary proceedings and presses disciplinary charges against the judge. Judges also hear such charges without an investigation being initiated.

Disciplinary cases are the most frequent form of repression of independent judges. They are being applied to almost all judges defending the rule of law and appearing in the media. Any excuse is good enough for the disciplinary commissioners.

Disciplinary charges are pressed for breaching Article 107, paragraph 1, items 1–5 of the Act on the Structure of the Ordinary Courts. Judges were initially accused of alleged shortcomings at work, such as delays in writing justifications for judgments, criticizing Minister Ziobro’s ‘reforms’ in the media and holding meetings with citizens.

Judge Dominik Czeszkiewicz from the Themis association of judges experienced the first reprisals of this kind. The local disciplinary commissioner in Suwałki charged him with alleged errors in his work, which were, however, related to the judge’s activities in the Themis association. He later dropped the charges, but the judge was subjected to repression and pressure for a long time.

The disciplinary proceedings machine started up in the second half of 2018, after the minister of justice appointed Chief Disciplinary Commissioner Piotr Schab and his deputies Przemysław Radzik and Michał Lasota.

They immediately struck at judges who were known or most involved in defending the rule of law and criticizing Minister Ziobro’s ‘good change’ in the courts, mainly those associated with the Iustitia and Themis associations:

• Igor Tuleya from Warsaw for criticizing Ziobro’s ‘reforms’, holding meetings with citizens, requesting preliminary rulings of the EU Court of Justice;
• Waldemar Żurek from Kraków, former press officer of the legal National Council of the Judiciary for criticizing Ziobro’s ‘reforms’;
• Bartłomiej Przymusiński from Poznań, Iustitia’s press officer, for making statements in the media;
• Olimpia Barańska-Małuszek and Kamil Jarocki from Gorzów Wielkopolski. Barańska-Małuszek was disciplined for her participation in Owsiak’s festival, as well as for criticism and alleged errors at work. Jarocki was disciplined for requesting preliminary rulings of the CJEU;
• Monika Frąckowiak and Sławomir Jęksa from Poznań. Frąckowiak – for her criticism and participation in Owsiak’s festival. Jęksa – for justifying the acquittal of the wife of the Mayor of Poznań;
• Jarosław Gwizdak from Katowice for running for mayor of Katowice. The judge took a leave of absence for the duration of the campaign, but this was about his media appearances on changes and problems in the justice administration;
• Włodzimierz Brazewicz from Gdańsk for his meeting with citizens;
• Ewa Maciejewska from Łódź for her requests for preliminary rulings of the CJEU;
• Arkadiusz Krupa from Łobez for participating in Owsiak’s festival and his satirical drawings about the courts which he posts in his blog.

Judge Igor Tuleya of the Regional Court in Warsaw is one of several judges with respect to whom an attempt was being made to eliminate him on a groundless accusation of the prosecutor’s office. Photo Mariusz Jałoszewski

The second stage of the repression of judges with disciplinary action started at the end of 2019 and was related to the CJEU’s judgment in November 2019, in which the Court adjudicated on how to assess the legality of the neo-NCJ and the Disciplinary Chamber in the Supreme Court. Judge Paweł Juszczyszyn from Olsztyn was the first in Poland to implement this ruling, for which he was quickly charged with disciplinary charges, among other things.

‘The response to Juszczyszyn’s action was the hasty enactment by the authorities of amendments to the Acts on the courts, which are referred to as the Muzzle Act. New disciplinary offences were then introduced into Article 107 of the Act on the Structure of the Ordinary Courts:

• ‘acts or omissions that may prevent or significantly impede the functioning of the justice administration’
• and ‘acts challenging the fact that a judge holds office, the effectiveness of his appointment or the authority of a constitutional body of the Republic of Poland’.

The objective of these provisions was to stop judges from challenging the status of the neo-NCJ, the Disciplinary Chamber and neo-judges (namely judges nominated by the neo-NCJ).

Minister Ziobro’s disciplinary commissioners still willingly use the provisions of the Muzzle Act to this day, pressing disciplinary charges against judges enforcing ECtHR and CJEU judgments – even though, in an interim measure issued in a case filed by the European Commission against the tightened disciplinary regime, the CJEU suspended their application in July 2021 until a judgment is issued.

As well as despite the fact that the amendments to the Acts on the courts in 2022 abolished the penalization of judges for rulings, for requesting preliminary rulings of the CJEU and for examining the independence and impartiality of neo-judges.

The provisions of the Muzzle Act have been most frequently used to initiate disciplinary proceedings against judges since 2020. Disciplinary action was also applied for statements in the media and meetings with citizens.

Over the past year, however, the disciplinary commissioners have slowed down with the initiation of further proceedings.

This may be because the Disciplinary Chamber was first suspended and then liquidated.

Staffed with selected individuals, the Disciplinary Chamber was an important element of the repressive apparatus. It could suspend judges indefinitely – pending the final conclusion of disciplinary proceedings – and willingly did this. In order for the case to end up in the Disciplinary Chamber and not the disciplinary court at the Court of Appeal, the disciplinary commissioners deliberately pressed criminal charges against judges for allegedly overstepping their powers under Article 231 of the Penal Code.

Now local disciplinary commissioners appointed by Chief Commissioner Piotr Schab, are also initiating disciplinary proceedings. Tomasz Koszewski, deputy disciplinary commissioner at the Regional Court in Olsztyn initiated several investigations against Judge Paweł Juszczyszyn in late December 2022 and early January 2023. Koszewski was promoted in the courts under the current government. This is a trend: local disciplinary commissioners are now becoming judges who support the changes introduced by the authorities.

The appointment of a special disciplinary commissioner for Supreme Court judges by President Andrzej Duda in the middle of 2022 is also new. Piotr Schab was appointed to this position and, a few months after his appointment, raised a disciplinary charge against former First President of the Supreme Court Małgorzata Gersdorf. The charge is absurd, as it applies to the fact that she allowed the full membership of the Supreme Court to issue the historic resolution of January 2020 on the neo-NCJ, the Disciplinary Chamber and the neo-judges. Legitimate Supreme Court judges who refuse to rule with neo-judges of the Supreme Court are also at risk of disciplinary action.

Suspensions of judges from office

This is not a formal type of punishment for a judge. However, the removal of a judge from his official duties has started to be used precisely as a severe punishment for a judge. It is allowed by Article 130 of the Act on the Structure of the Ordinary Courts. The Minister of Justice or the president of the court may remove a judge from adjudicating for one month. The provision should only apply in extreme cases, for example if a judge were to come to work drunk. The Constitutional Tribunal ruled that this provision is constitutional.

Under the current government, Article 130 is used to punish judges for their judicial activity, applying European law and enforcing ECtHR and CJEU judgments, in which the status of the neo-NCJ, neo-judges and the Disciplinary Chamber was challenged.

Judge Paweł Juszczyszyn from Olsztyn, who implemented the CJEU judgment of November 2019, was the first to be suspended by the Disciplinary Chamber. The president of the District Court in Olsztyn, Maciej Nawacki, first removed him from adjudicating for one month, after which the Disciplinary Chamber suspended the judge indefinitely in February 2020 as part of the review of this decision.

In 2020, the Chamber also suspended Igor Tuleya – for holding the hearing at which he ordered the prosecutor’s office to investigate the voting on the budget in the Sejm’s Column Room in December 2016 as an open session. Judge Beata Morawiec from Kraków, the head of the Themis association of judges, was also suspended for eight months – in connection with the non-final lifting of her immunity by the Disciplinary Chamber. This was done at the request of the National Public Prosecutor’s Office, which wanted to press groundless criminal charges against her. However, the Disciplinary Chamber itself overturned the suspension in the second instance, and simultaneously refused to lift her immunity.

The second wave of suspension of judges came after the ECtHR and the CJEU issued their rulings in July 2021 in which the status of the neo-NCJ was challenged and the Disciplinary Chamber was declared not to be a court. Based on these rulings, judges throughout Poland started to examine the status of the Chamber, the neo-NCJ and the neo-judges. The nominees of the authorities wanted to stop this.

First, the court presidents and the Minister of Justice himself started to remove judges from adjudication for a month. Adam Synakiewicz from Częstochowa, Marta Pilśnik from Warsaw, Maciej Rutkiewicz from Elbląg, Piotr Gąciarek and Krzysztof Chmielewski from Warsaw, Agnieszka Niklas-Bibik and Joanna Hetnarowicz-Sikora from Słupsk, Marzanna Piekarska-Drążek from Warsaw, as well as Anna Głowacka and Maciej Ferek from Krakow were suspended in this way.

According to the regulations, the decision of the court president or the minister of justice to temporarily remove a judge from his duties was later reviewed by the Disciplinary Chamber. In order to reinforce the charges against the adjudication activities of the judges, disciplinary action was quickly initiated against the judges by Minister Ziobro’s disciplinary commissioners, using the provisions of the Muzzle Act.

The Disciplinary Chamber, which was declared a non-court in the light of the CJEU ruling of 15 July 2021, managed to indefinitely suspend four judges. They are: Piotr Gąciarek, Maciej Ferek, Maciej Rutkiewicz and Krzysztof Chmielewski.

In this way, the Chamber breached the CJEU’s interim measure of 14 July 2021, which suspended the provisions of the Muzzle Act. It wanted to suspend more judges, but was prevented from doing so by the Polish government’s dispute with the European Commission over the implementation of the CJEU’s judgment of 15 July 2021.

As a result, the government finally agreed to liquidate the Disciplinary Chamber. Meanwhile, the Professional Liability Chamber of the Supreme Court, which replaced it, has been reinstating the suspended judges since September 2022. It is overturning the decisions of its predecessor, as well as the decisions of the minister or court president preceding them, as being in breach of the law and groundless.

This is because the new Chamber of the Supreme Court acknowledges that judges cannot be removed from their official duties for their judicial activity.

Only Judge Maciej Ferek of the Regional Court in Kraków is currently still suspended. The Chamber is due to meet at the end of March to review his non-final suspension. However, it is uncertain whether the session will be held. It is also not known whether the Chamber of Professional Liability, from which the current government intends to transfer disciplinary cases of judges and cases for lifting immunity to the NSA, will manage to do this.

Forced transfer of judges to other divisions

As the Disciplinary Chamber has failed to live up to the hopes placed in it by Minister Ziobro’s nominees and has failed to suspend numerous judges, a new and equally severe type of repression has emerged. Judges have started to be forcibly transferred to other divisions within the court. The court presidents nominated by the ministry of justice are doing this. Judges are being moved from the appellate divisions to the first-instance divisions in order to take away their ability to review judgments passed by neo-judges.

They are also being removed from adjudicating on important cases by transferring them to divisions that are less ‘strategic’ from the point of view of the authorities. For example, from the criminal or civil divisions to the family, labour or executive divisions. Such a change is intended to further harass the judge, because he is being moved to a division with a different specialization and a different procedure. He has to quickly learn the new rules and master the jurisprudence overnight.

This form of official repression was rarely used initially. It has been used increasingly frequently in recent months.

The first judge transferred in this way was Waldemar Żurek from the Regional Court in Kraków. In 2018, he was forcibly transferred from the civil appellate division to the civil division of the first instance, where he was given a pile of outstanding cases to start with. His transfer was perceived to be a punishment for his harsh criticism of the changes in the courts. The then court president and currently the chair of the neo-NCJ, Dagmara Pawełczyk-Woicka, was behind the decision.

Next, Judge Łukasz Biliński from the District Court for Warsaw-Śródmieście was forcibly transferred from the criminal division to the labour division. This was related to the fact that the judge was the first in Poland to start acquitting participants of anti-government protests. Court presidents started to resort to this means of repression more frequently after the CJEU and ECHR rulings on the status of the Disciplinary Chamber and the neo-NJC were issued in July 2021. Judges were transferred to prevent them from examining the status of neo-judges.

Wojciech Maczuga, Beata Morawiec, Katarzyna Wierzbicka and Maciej Czajka encountered this in the Regional Court in Kraków.  The last of these was the only one to be transferred from the criminal division to the civil division in conflict with his specialization. The then president of the court, Dagmara Pawełczyk-Woicka, reversed that decision after the judges protested.

Judges, Piotr Gąciarek and Anna Ptaszek, from the Regional Court in Warsaw were also transferred on disciplinary charges. They were transferred from the criminal division to the executive division. These were decisions of the then president of the court, Piotr Schab, and his deputy, Przemysław Radzik. Judge Agnieszka Niklas-Bibik from the Regional Court in Słupsk was also forcibly transferred.

Judge Paweł Juszczyszyn of the District Court in Olsztyn was also treated in this way. When the Disciplinary Chamber lifted his suspension, he returned to adjudicate in mid-2022, but not in his home civil division, but in the family division. He was transferred there as punishment by the president of the court, Maciej Nawacki, who is simultaneously a member of the neo-NCJ. Dorota Lutostańska from the Regional Court in Olsztyn was also transferred on disciplinary grounds at the end of December 2022.

This form of repression became widespread news because of the forced transfer of three judges from the Court of Appeal in Warsaw, Marzanna Piekarska-Drążek, Ewa Gregajtys and Ewa Leszczyńska-Furtak. They are all experienced and respected criminal law judges with many years of experience. They were suddenly transferred from the criminal division to the labour and social insurance division in August 2022. These were decisions of the new president of the court of appeal, Piotr Schab, and his deputy, Przemysław Radzik.

The judges reported this to the public prosecutor’s office and sued the home court. The ECtHR ruled on this, issuing a precedent-setting interim measure stopping the transfer in December 2022. It was not executed, which is a precedent in Europe and places Poland in line with Turkey and Russia, which have also failed to execute the Court’s interim measures.

The judges also want the Polish court to reinstate them – within the framework of the interim measure – in their home division.

This could be a turning point, as the courts will have to speak up on the legality of such actions. And the first such ruling has already been issued: in January 2023, the District Court in Bydgoszcz issued an interim measure ordering the reinstatement of Judge Paweł Juszczyszyn in the civil division. And, literally in the last few days, on 3 March 2023, the Regional Court in Bydgoszcz issued a similar interim measure, ordering the reinstatement of Judge Waldemar Żurek in the civil appellate division.

The CJEU also ruled on the forced transfer in October 2021.  Based on Waldemar Żurek’s case, the Court ruled that the transfer of judges against their will is a form of repression and is in conflict with EU law, as it can breach the principles of irremovability and independence of judges.

The transfer of judges to other divisions within the court is regulated by Article 22a of the Act on the Structure of the Ordinary Courts. It arises from this that, in principle, judges cannot be transferred without their consent. However, the court president may transfer a judge without his consent if several requirements are satisfied. This is possible if:

• the judge is being transferred to a division where cases of the same scope are heard; 
• no other judge has agreed to the transfer;
• the judge is being transferred to the land and mortgage registry division and the commercial division for the registration of pledges.

It also arises from the regulations that a judge’s length of service in a given division is taken into account when making the transfer. Judges with the shortest length of service are transferred.

So much for the regulations. Judges should only be transferred when there are real staff shortages in the courts and these cannot be filled by other means. Judges should also be transferred in accordance with their specializations. This also arises from the Act on the Courts, which states that activities in the court are split precisely according to specializations.

Proceedings of the prosecutor’s office as an element of repression

In addition to the disciplinary commissioners and court presidents, the National Prosecutor’s Office is also striking at judges. Or, more precisely, it is the internal affairs department, which the current government set up to prosecute judges and prosecutors.

This department launches proceedings – frequently groundless and of a political nature – which are intended to harass and freeze judges, and possibly eliminate them from the profession.

Additionally, such proceedings publicly discredit judges because they are suspected of having committed crimes. And such an allegation is discrediting for a judge. These proceedings do not always end in an attempt to press criminal charges, but the mere fact that they are being conducted puts pressure on judges because they are kept in the dark for months. In turn, this can have a so-called ‘chilling effect’.

This is how repression is being imposed on:

• Judge Waldemar Żurek from Kraków. The internal affairs department has conducted or is still conducting two proceedings in which the judge can be charged with criminal charges. The first case applies to an accident at work of which Żurek is a victim. As he was leaving the men’s room, a floor cleaning machine ran into him, causing an injury to his leg. However, the court authorities, headed by the former president, Dagmara Pawełczyk-Woicka, did not accept this as an accident at work, and the National Public Prosecutor’s Office started investigating whether the judge wanted to extort compensation. The other case is even more absurd and applies to a verbal clash with the former director of the Regional Court in Kraków, Piotr Słaby. This was a nominee of the Ministry of Justice who refused to allow Kraków judges to put up posters in court in defence of the repressed Judge Maciej Czajka. Judge Żurek and Judge Wojciech Maczuga entered into a discussion with the director – and someone reported them to the public prosecutor’s office for that.
• Beata Morawiec from Kraków. She is the head of the Themis association of independent judges, which is critical of Ziobro’s ‘reforms’ in the courts. The prosecutor’s office wanted to press a stretched and unbelievable charge against her for allegedly accepting a bribe of a mobile phone and for failing to prepare a legal opinion for which she received payment. The Disciplinary Chamber lifted her immunity in a non-final decision, but the 2nd instance ultimately refused to prosecute the judge, not accepting the ‘evidence’ presented by the prosecutor’s office.
• Piotr Raczkowski. He is a military judge and a former vice-president of the old, legal NCJ. The prosecutor’s office wanted to charge him for allowing journalists access to the files in an old spy case, which contained classified documents. The judge was innocent, but his problems started when the journalists wrote about a plot that was unfavourable for the former head of the Ministry of Defence in a book about Antoni Macierewicz on the basis of these files.
• Andrzej Sterkowicz. He is a judge of the Regional Court in Warsaw. The National Prosecutor’s Office charged him in connection with his divorce. The divorce did not take place without emotion. The judge is accused of breaching the peace of his home and insulting a police officer, while the Disciplinary Chamber lifted his immunity. He had previously been subjected to a smear campaign by the pro-government ‘Gazeta Polska’, because the judge had handled personal rights lawsuits in the past against ‘Gazeta Polska’ journalists, who had lost these lawsuits.
• Igor Tuleya of Warsaw for allowing the public into a hearing at which he ordered the prosecutor’s office to investigate the PiS party’s voting on the budget in the Sejm’s Column Room. The Disciplinary Chamber lifted the judge’s immunity. However, first, Adam Roch of that Chamber and, later, the Chamber of Professional Liability did not agree to the judge being brought in by force to the prosecutor’s office to face criminal charges, acknowledging that the judge had not broken the law.
• Krystian Markiewicz, the head of Iustitia, and Maciej Czajka from Kraków. The National Prosecutor’s Office was investigating the statements they gave to OKO.press on how the authorities should implement the CJEU’s rulings on the Disciplinary Chamber from mid-July 2021.
• A group of Kraków judges. The National Prosecutor’s Office summoned a dozen or so Kraków judges, who had issued decisions in trials which were favourable for prosecutor Mariusz Krasoń of Lex Super Omnia, for questioning. He sued his home District Prosecutor’s Office for Kraków for posting him to work at the district prosecutor’s office in Wrocław as a disciplinary punishment. Bogdan Święczkowski, the then National Prosecutor himself, was responsible for that decision. The prosecutor’s office subordinated to him then checked the procedural decisions of the judges. The case was ultimately discontinued, but the handling of the case and the questioning of the judges was seen as putting pressure on them and as an attempt to incite a chilling effect.
• Supreme Court Judge Professor Włodzimierz Wróbel, Supreme Court Judge Marek Pieruszyński and Supreme Court Judge Andrzej Stępka.  The National Prosecutor’s Office wants to charge all three of them with groundless allegations for an error made by a secretarial employee of the Supreme Court’s Criminal Chamber. That employee did not issue a release order for people, whose convictions the Supreme Court had overturned, on time. The actions of the prosecutor’s office should be considered a deliberate attack on the Supreme Court, especially on Professor Włodzimierz Wróbel, who is known for defending the independence of the Supreme Court and for boldly criticizing the changes to the courts introduced by the current authorities. The Disciplinary Chamber has not agreed to lift Wróbel’s immunity for the time being in a non-final decision. However, a different bench of the Chamber has lifted Judge Marek Pietruszyński’s immunity in a non-final decision.
• Józef Iwulski. He is the former president of the Labour and Social Insurance Chamber of the Supreme Court. The Institute of National Remembrance wants to charge him with the commitment of communist crimes because Iwulski was a part of the bench of a military court which sentenced an oppositionist in 1982 to three years’ imprisonment for distributing leaflets. It is not known how Iwulski voted during the deliberations on this verdict, but the Disciplinary Chamber unanimously lifted his immunity in a non-final decision. Iwulski’s prosecution started when, in mid-2018, he backed the former First President of the Supreme Court Małgorzata Gersdorf, whom PiS wanted to forcibly remove from office.

An extraordinary complaint against Žurek

The prosecutor’s office has another means of pressuring judges. It can request the cancellation of judgments regarding them, which were passed in private cases. And Prosecutor General Zbigniew Ziobro has used this complaint to strike at Judge Waldemar Żurek.

PiS enacted the extraordinary complaint to cancel old, unjust judgments. They are considered by the Chamber of Extraordinary Control and Public Affairs, which was appointed by PiS. The Prosecutor General has misused the institution of this complaint in the battle against Żurek, because the complaints applied to the cancellation of final judgments passed in disputes between Żurek and his ex-wife to the latter’s disadvantage. At issue are their post-divorce financial settlements and the ex-wife’s slander of the judge.

The Chamber of Control changed one judgment to the wife’s favour – the one regarding financial settlements. It dismissed the other complaint against the judgment ordering the woman to apologize to the judge for slander.

The analysis was published in Polish in Osiatyński’s Archive and OKO.press, 14 March 2023.

The project is supported by the Active Citizens Fund – National Programme.