Judge Maciej Ferek returns to adjudication, the new Chamber of the Supreme Court has lifted his suspension. This was the last judge who had been suspended
The new chamber of the Supreme Court acknowledged that Judge Ferek from Kraków could not be suspended for judgments in which he applied European law. The decision was made in an atmosphere of scandal, by a defective bench. Now the PiS government can say that it has fulfilled one of the conditions for unblocking funds for the NRRP. The judge could have adjudicated on several hundred cases during his period of suspension
Judge Maciej Ferek of the Regional Court in Kraków was suspended for a year and four months. Until Tuesday 28 March 2023. A bench from the Supreme Court’s Professional Liability Chamber overturned the decision of the illegal Disciplinary Chamber at the Supreme Court from the middle of November 2021, as well as the preceding decision of the President of the Regional Court in Kraków (to suspend him for a month). The office of court president was held at that time by Dagmara Pawełczyk-Woicka, currently the chair of the neo-NCJ.
The new Chamber of the Supreme Court found that both decisions were defective because they were based on Article 130 of the Act on the Structure of Ordinary Courts. Meanwhile, this provision only allows a judge to be suspended for being caught committing a criminal act or in a situation where his act breaches the dignity of the court.
However, the judge was suspended for enforcing the rulings of the European Court of Human Rights and the Court of Justice of the EU. The new chamber of the Supreme Court held that the judge could not be suspended for his judgments and legal views. However, there was no mention of the judge having been suspended illegally and that the Disciplinary Chamber was not a court.
The decision in the judge’s case was made by a bench consisting of legal Supreme Court Judge Wiesław Kozielewicz (presiding judge), Neo-Judge Marek Siwek (rapporteur) and Lay Judge Marek Molczyk. In other words, a defective bench with a neo-judge. Which is a paradox, because Ferek was suspended for challenging the status of neo-judges.
200 cases interrupted, 300 not examined
The case was heard in a tense and emotional atmosphere because the decision on Ferek’s fate was being made by Neo-Judge Siwek. At one point, Ferek’s defence attorney even left the courtroom. We have described the course of the hearing and the Chamber’s judgment later in the article.
Judge Ferek was not there because he does not recognize the legality of the new Chamber of the Supreme Court. His defence attorneys were there: the president of the Criminal Chamber of the Supreme Court, Michał Laskowski, the president of the Labour and Social Insurance Chamber of the Supreme Court, Piotr Prusinowski, and Attorney-at-Law Michał Gajdus.
‘I am on leave. I shall come to work on Monday. I am happy to be returning to adjudication. But I am disgusted with the way in which I was suspended,’ Judge Maciej Ferek tells us. He adds: ‘I don’t need this judgment from the Chamber of Professional Liability at all, because I was not suspended by a legal court. This judgment is for the authorities of my court to turn my computer on, to give me the office they took away from me. And to assign cases to me to be heard.’
Ferek announces: ‘My suspension has changed nothing. I shall continue to apply the rulings of the ECtHR, the CJEU and the Constitution. I hope the people who brought about my suspension will be brought to justice. Including Dagmara Pawełczyk-Woicka.’
Judge Ferek is a civil law judge. When she suspended him for a month, he left 200 cases unfinished. These were then put into a draw for distribution to the other judges.
Ferek: ‘It was clear from the start that I was suspended illegally. During the year and a half that I was out of work, I could have dealt with 300 cases of citizens who are waiting for judgment to be passed.’
Which judges have returned to work and who else do Ziobro’s people want to suspend
Judge Maciej Ferek was the last Polish judge who was illegally suspended by the Disciplinary Chamber. The lifting of his suspension satisfies one of the conditions for unblocking billions of euros for Poland for the NRRP. One of the conditions set by the head of the European Commission, Ursula von der Leyen, in the second half of 2021 was that all judges suspended by the illegal chamber are to be reinstated.
The following judges had previously been reinstated:
- Paweł Juszczyszyn from Olsztyn,
- Igor Tuleya from Warsaw,
- Krzysztof Chmielewski from Warsaw,
- Piotr Gąciarek from Warsaw,
- Maciej Rutkiewicz from Elbląg.
The decision was made by the Chamber of Professional Liability. Adam Roch of the Disciplinary Chamber only made the decision in Judge Juszczyszyn’s case. They were all suspended for judgments they had passed that the authorities and Minister Ziobro’s nominees did not like, as well as for enforcing the rulings of the ECtHR and the CJEU.
At least a dozen or so more motions to suspend independent judges, whom Minister Ziobro’s people want to punish mainly for applying European law, are still pending. These include Agnieszka Niklas-Bibik and Joanna Hetnarowicz-Sikora from Słupsk, Irena Piotrowska and Aleksandra Janas from Katowice, Rafał Lisak and Wojciech Maczuga from Kraków and Olimpia Barańska-Małuszek from Gorzów Wielkopolski.
Three legal judges of the Supreme Court, namely Professor Włodzimierz Wróbel, Andrzej Stępka and Marek Pietruszyński are also under threat of suspension. The Chamber is not hearing some of these cases because these judges have received interim measures from the ECtHR protecting them from being heard by a defective bench with a neo-judge. Judge Ferek did not have such an interim measure, because the ECtHR does not give interim measures to judges suspended in non-final judgments.
How Judge Ferek was suspended
Judge Maciej Ferek was suspended for implementing the rulings of the CJEU and ECtHR of July 2021. In them, the courts questioned the legality of the Disciplinary Chamber and the new, politicized National Council of the Judiciary, as well as the nominations it had given for judges. Namely for neo-judges.
And Judge Ferek made reference to these rulings in three judgments – one in July and two in October 2021. In them, he contested earlier judgments passed made with a neo-judge. Judge Ferek also disregarded the judgment passed by Przyłębska’s Constitutional Tribunal with the involvement of stand-in judges.
Dagmara Pawełczyk-Woicka, the then President of the Regional Court in Kraków, a nominee of Minister Ziobro and the current chair of the neo-NCJ, removed him from adjudication for a month for that in October 2021. Pawełczyk-Woicka breached the CJEU’s interim measure of 14 July 2021.
Just to reiterate. At that time, the CJEU suspended, among other things, the activities of the Disciplinary Chamber and the provisions of the unconstitutional Muzzle Law. This is about the regulations passed by PiS allowing judges to be punished for contesting the legality of neo-judges and institutions appointed and staffed by PiS.
But this was just the beginning. Because, in November 2021, the deputy disciplinary commissioner for judges, Przemysław Radzik – also a nominee of Minister Ziobro – pressed three disciplinary charges against the judge. For the same three judgments that the president of the court did not like.
Radzik qualified the questioning of the status of the neo-judges by referring to the rulings of the CJEU and the ECtHR as overstepping his powers. While pressing the charges against the judge, Radzik also breached the CJEU’s interim measure of 14 July.
And suddenly, on 16 November 2021, the judge was suspended indefinitely by the illegal Disciplinary Chamber. His salary was also reduced by half. He was suspended in the midst of a scandal. The judge was not notified of the hearing. It is also highly likely that Malgorzata Manowska, a neo-judge in the position of First President of the Supreme Court, who did not allow the Chamber to operate in the cases of other judges, allowed his suspension.
Ferek was suspended by a bench from the Chamber consisting of Jacek Wygoda, Ryszard Witkowski and Lay Judge Michał Górski. They all also breached the CJEU’s interim measure of July 2021.
How Ferek’s defence attorney wanted to remove the lay judge
The judge continued to defend the free courts. On his motion, the District Court in Rzeszów found in 2022 that he had not been effectively suspended by the Disciplinary Chamber. And ruled that the judge should continue to receive his full salary. Ferek also appealed against the suspension decision, but it is only now that the Professional Liability Chamber (which replaced the Disciplinary Chamber, which was abolished in 2022) has heard the appeal.
Only the judge’s defence attorneys were present at the hearing of the new Chamber – on the afternoon of Tuesday 28 March 2023. The deputy disciplinary commissioner, Przemysław Radzik, who had pressed the disciplinary charges against him, did not appear. The hearing lasted two hours and was full of twists and turns and emotions.
One of the judge’s defence attorneys, Attorney Michał Gajdus, was filing formal motions for most of the session. He wanted the hearing to be adjourned for several reasons. At the beginning, the attorney argued that the bench had changed at the last minute. This was because Lay Judge Joanna Lasko dropped out and was replaced by Marek Molczyk.
This change took place because Lasko is a lay judge elected by the Senate in October 2022. She stated that she would not rule until Małgorzata Manowska allows all 30 lay judges elected by the Senate to adjudicate. Manowska had only just allowed 14 of them to adjudicate. Another 16 are waiting for her decision. Manowska is not allowing them to adjudicate because she does not like the fact that they are affiliated with KOD (the Committee for the Defence of Democracy).
Lay Judge Lasko is supporting them and will start adjudicating when they are all sworn in. Marek Molczyk, who replaced her on the bench, is already a lay judge for the second term. Previously, he adjudicated in the illegal Disciplinary Chamber.
Counsel Gajdus requested an adjournment because of the sudden change in the bench. He wanted to apply for a test of Molczyk’s independence (namely a check of the requirements of independence and impartiality taking into account the circumstances surrounding the appointment). He was supported by the other defence attorneys, Supreme Court Judges Michał Laskowski and Piotr Prusinowski.
But the motion was not accepted. Supreme Court Judge Wiesław Kozielewicz, who was the presiding judge, explained that the Act on the Supreme Court does not allow for an independence test of a lay judge. Because they are not judges. He emphasized that the defence had filed a similar motion in the case of a previous lay judge and it had been rejected.
Attorney Gajdus enquired who decided not to conduct a test of a lay judge. Kozielewicz replied that he had issued the order as the president of the Chamber, as part of the preliminary review of the admissibility of the motion. The attorney replied that this was ‘exceptional lawlessness’, because, in his opinion, lay judges are also subject to an examination of their independence.
And since he could not file a motion for a test of Lay Judge Molczyk’s independence, the attorney applied for his removal from the case. ‘It is not the president who should decide [on the admissibility of the test – ed.], but a five-member bench. I don’t know what the procedure was under which Molczyk was appointed to this case. I don’t know why the other lay judges appointed by the Senate are being ignored,’ said Attorney Gajdus.
He added: ‘The right to a court also includes the parties being assured that the bench is correctly appointed.’ He asked Judge Kozielewicz if he had been looking for a lay judge who would be willing to rule with Siwek (a neo-judge). To which the indignant Judge Kozielewicz reprimanded the attorney because he had referred to Siwek as ‘Mr’ instead of ‘judge’.
Kozielewicz: ‘I put up with it. Please observe the minimum of rules, you are addressing a judge.’ Gajdus replied that he could not call Siwek a judge because his nomination to the Supreme Court – from the neo-NCJ – was issued with a gross defect. He emphasized that everyone appointed to the office of judge after 2018 had been appointed in conflict with the Constitution and the European Convention on Human Rights.
Kozielewicz: ‘The courtroom of the Supreme Court has been a sanctuary for centuries. Appropriate behaviour is required. I am seeing behaviour that is not befitting a lawyer.’ Attorney Gajdus replied that procedures and procedural guarantees need to be observed in a sanctuary. ‘I don’t even know on what basis the bench was changed,’ emphasized the attorney.
Defence attorney demands the removal of a neo-judge of the Supreme Court
Attorney Michał Gajdus filed two more motions: to remove the lay judge, Neo-Judge Siwek and Kozielewicz. He claimed that Judge Ferek had filed two notices on the change of the bench with the prosecutor’s office a few days ago. In them, he questioned the appointment of both Molczyk and the neo-judge of the Supreme Court to the bench.
Attorney Gajdus said at the hearing that Judge Ferek wanted his case to be heard by a bench that was consistent with the European standard, namely without a defectively appointed neo-judge.
The motion was supported by the other two defence attorneys. Supreme Court Judge Piotr Prusinowski even appealed to Neo-Judge Siwek to remove himself from the case for the good of the case. He said that the fate of Judge Ferek had so far been decided upon by neo-judges – it was they who suspended him and it was they who considered various formal motions, including the one to remove the neo-judge from the bench. He appealed that Ferek was entitled to a bench that did not give rise to any doubts. So that he should not be reinstated to adjudication by force.
Supreme Court Judge Prusinowski also emphasized that Kozielewicz, as the presiding judge, should not change the previous lay judge just because he does not want to rule. At most, he should be formally removed.
He warned that he could face disciplinary action for that. He referred to himself as an example. Because he did not want to appoint a neo-judge to a three-person bench in the Labour Chamber – because such a panel would have been defective – Małgorzata Manowska filed for disciplinary proceedings to be brought against him.
A recess was ordered. Defence attorneys Michał Laskowski and Piotr Prusinowski went to an important session of the College of the Supreme Court. A disciplinary commissioner of the Supreme Court was being elected. The legal Supreme Court judge, Andrzej Tomczyk was elected for a second term of office. He received more votes than his opponent, Neo-Judge Igor Zgolinski.
After the break, only Attorney Michał Gajdus and a few members of the public remained in the courtroom. The bench continued with the proceedings. Judge Wiesław Kozielewicz explained that the procedure allows for motions to remove members of the bench to be considered later. And if they are accepted, the judgment that is passed will be automatically cancelled.
To which Attorney Gajdus said that his conscience could not accept that Judge Ferek would be reinstated by a bench that was non-compliant with the ECtHR rulings. He announced that he could not continue to participate in the hearing because he would be ‘furthering the state of illegality’ and would be acting against a judge who does not agree to being tried by a neo-judge. Gajdus asked for a recess so that he would not have to demonstratively leave the courtroom.
Only an OKO.press journalist, a Prawo.pl journalist, two judges supporting Ferek and the press officer of the new Chamber remained in the room.
Why the new Chamber decided to lift Judge Ferek’s suspension
After a short recess – now, without any defence attorney – the bench announced the resolution. In it, it overturned both the decision of the illegal Disciplinary Chamber and the preceding decision of the president of the Regional Court in Kraków, Dagmara Pawełczyk-Woicka.
At the beginning of the justification of the ruling, Judge Kozielewicz explained why he had changed the bench a few days ago and appointed a new lay judge. He emphasized that Judge Ferek had filed a complaint about the lengthiness of the proceedings. And had he not appointed a new lay judge, the next hearing might not have been held until August or September. And he appointed Molczyk because he was next in line.
Judge Kozielewicz said the hearing of the case had been prolonged by the motions filed by Ferek’s defence attorneys for the removal of neo-judges and a test for the lay judge. He said the membership of the bench could be contested, but a final judgment had been passed and was enforceable. He complained that various motions by lawyers undercut the essence of the administration of justice in the eyes of the public. And that judgments must be honoured.
He pointed out that it cannot be that only judges whose views are in line with those of the parties adjudicate on cases. He spoke of the destruction of the authority of the court.
Neo-Judge Marek Siwek continued to justify the resolution. He stated that Ferek had been suspended on the basis of Article 130 of the Act on the Structure of Ordinary Courts, which was defective. This provision allows the court president or the minister of justice to remove a judge from adjudication for one month if he is caught red-handed while committing a crime or in a situation in which his act breaches the gravity of the court or the interests of the service. A court’s adjudicatory work is neither one nor the other.
Judge Kozielewicz added that it is inadmissible to suspend a judge for legal views and for judgments. And neither the Minister of Justice nor the court president can do this.
This judgment is final. Even though it was issued by a defective bench.
Who destroyed the authority of the Supreme Court
At this point, the authority of the court –including the Supreme Court – is being destroyed not by lawyers defending the rule of law, but by the current authorities and their nominees.
It is the illegal NCJ staffed with Minister Ziobro’s associates that is infecting the courts with defective nominations for neo-judges. As the ECtHR and the CJEU ruled.
It is creating a situation in which people cannot be certain whether judgments in cases that are important to them will stand or be contested in the future. As having been issued by people who were not judges.
It was the court presidents nominated by Ziobro’s ministry who illegally suspended judges in breach of the CJEU’s interim measures. While Minister Ziobro’s disciplinary commissioners were disciplining these judges for applying European law.
Meanwhile, Małgorzata Manowska, a neo-judge acting as First President of the Supreme Court, squandered that Court’s authority. It is she who has not called a General Assembly of Judges of the Supreme Court for three years. It is she who ‘arrested’ the files of three important cases regarding the status of neo-judges and blocked the implementation of three rulings of the CJEU.
Likewise, no protests of neo-judges were raised when President Duda’s two ‘commissioners’ pushed for the election of a new president of the Supreme Court, disregarding the votes and motions of legal Supreme Court judges. This was the type of procedure in which Manowska was elected. Additionally, the neo-judges did not protest when, in previous years, the Disciplinary Chamber illegally suspended judges and breached CJEU rulings under the cover of darkness.
At that time, it was lawyers such as Attorney Gajdus who were raising their voices for this authority of the Supreme Court. They were the ones who stood up in the Disciplinary Chamber and defended the repressed judges and the principles about which Supreme Court Judge Wiesław Kozielewicz is now talking.
Działania organizacji w latach 2022-24 dofinansowane z Funduszy Norweskich w ramach Programu Aktywni Obywatele – Fundusz Krajowy.
The organisation’s activities in 2022-24 with funding from the Norwegian Funds under the Active Citizens Programme – National Fund.