Judge Maczuga from Kraków is being prosecuted for applying EU law


Journalist covering law and politics for OKO.press. Previously journalist at Gazeta Wyborcza, Rzeczpospolita, Polska The Times, Dziennik Gazeta Prawna.


The prosecutor of independent judges, Przemysław Radzik, is threatening Judge Wojciech Maczuga with disciplinary action for applying European law. Radzik’s action is a further attack on the shaky compromise between PiS and the European Commission over billions from the NRRP

Judge Wojciech Maczuga of the Regional Court in Kraków is facing four disciplinary charges. They may be pressed by Deputy Disciplinary Commissioner Przemysław Radzik, who initiated an investigation with respect to the judge in the second half of March 2023. He wants Judge Maczuga to explain his adjudicatory activities.


Radzik does not like Judge Maczuga challenging the status of the neo-judges and the illegal neo-NCJ on the basis of the Constitution and the rulings of the ECtHR and the CJEU. Radzik is also after the judge for a case in which he imposed a PLN 3,000 fine on the chair of the neo-NCJ, Dagmara Pawełczyk-Woicka. The disciplinary commissioner’s action could result in disciplinary charges being pressed.


Importantly, Radzik is prosecuting Judge Maczuga on the basis of the provisions of the so-called Muzzle Act.


This applies to Article 107, para. 1, item 3 of the Act on the Structure of the Ordinary Courts. It prohibits judges from examining the status of the neo-NCJ and the neo-judges it nominated. These provisions were introduced into the Act on the courts to block judges from applying the rulings of the ECtHR and the CJEU. But the CJEU suspended the Muzzle Act in the interim measure in July 2021. Poland has already been charged a record fine of half a billion euros for the PiS government’s failure to implement this ruling.


And it is precisely this interim measure that Radzik is demonstrably breaking. In doing so, he is attacking the compromise that the PiS government agreed upon with the European Commission to unblock billions of euros from the recovery and resilience plan (NRRP) for Poland.


People associated with Minister of Justice Zbigniew Ziobro are therefore showing that there will be no concessions in practice and that the repression of independent judges will continue.


Judge Wojciech Maczuga is yet another independent judge recently being prosecuted for implementing ECtHR and CJEU judgments. In the middle of March 2023. Radzik also started prosecuting Judge Sławomir Bagiński of the Court of Appeal in Białystok for performing a test of independence of Neo-judge Tomasz Kosakowski from Olsztyn, a former member of PiS. The provisions of the suspended Muzzle Act are also being applied with respect to Bagiński.


In turn, the prosecution of Judge Paweł Juszczyszyn from the District Court in Olsztyn started in early January 2023. He is facing as many as six disciplinary charges, including for challenging the status of neo-judges. The local disciplinary commissioner, Tomasz Koszewski is also using the Muzzle Act.


The disciplinary commissioners will face disciplinary and criminal liability in the future for breaching the CJEU’s interim measure. All the more so that the new Professional Liability Chamber of the Supreme Court already has an established line of judgments. It arises from this that judges cannot be punished for their judgments and for applying European law.


Judge Maczuga: I will not be silenced

Judge Wojciech Maczuga has been specialising in criminal cases for 30 years and is not afraid of the threat of disciplinary action. All the more so that he was already being prosecuted by the disciplinary commissioners who wanted to suspend him. Meanwhile, the National Prosecutor’s Office tried to press absurd charges against him. We write more about this later in the article.


Maczuga comments on Radzik’s conduct in an interview with OKO.press as follows: ‘I may be charged with disciplinary charges for activities that are typically adjudicatory. Because I submitted dissenting opinions to judgments regarding neo-judges. Radzik is initiating proceedings against me at a time when the government is fighting for funds from the NRRP and the authorities are hoping for the Constitutional Tribunal to issue a ruling [it is supposed to assess the court laws that are to unblock billions for the NRRP – ed]. I consider Radzik’s actions to be a sign to the world, showing what is really happening in the Polish courts.’


‘I cannot rule out the possibility that they will also want to raise a criminal case against me. But I will not be scared. I will continue doing what a judge is supposed to do,’ concludes Maczuga.


Why is he still contesting the status of neo-judges? Maczuga: ‘Because they are not elected in compliance with the Constitution and the procedure. The current NCJ is not the body to which the Constitution refers. This is important to the citizens. Because rulings made with the involvement of neo-judges can always be contested. There is a great risk that citizens will file complaints with the ECtHR for issuing them and that the state will pay compensation for the incorrect staffing of the courts.’


The neo-NCJ is unconstitutional because 15 judge-members were elected to it by PiS MPs in the Sejm. Meanwhile, Article 187 of the Constitution states that the Sejm only elects its four representatives (MPs) to the NCJ.


Furthermore, the ECtHR, the CJEU, but also the Supreme Court and the Supreme Administrative Court have ruled that the neo-NCJ is not independent of politicians, and therefore the appointments it has given to neo-judges can also be contested. Because such a judge might also not be able to guarantee independence.


This is influenced by the staffing of the neo-NCJ mainly with judges who have agreed to work with Minister Ziobro’s ministry. In practice, the neo-NCJ’s recruitments are frequently not competitive, while nominations are repeatedly given to ‘their own’ judges. Also, members of the neo-NCJ, their families, Ziobro’s court presidents, or Ziobro’s disciplinary commissioners are promoted.


What Radzik is prosecuting Judge Maczuga for


In two letters from the second half of March 2023, Deputy Disciplinary Commissioner Przemysław Radzik informs Judge Wojciech Maczuga that he has initiated an investigation with respect to him, in which he is facing four disciplinary charges. One is for allegedly breaching the dignity of the office of judge in August 2022 as a judge rapporteur.


Radzik did not appreciate the fact that Maczuga questioned the effectiveness of Neo-judge Małgorzata Fronc’s appointment and whether she is effectively in office in the presence of the parties. She was in a three-person bench with him at the time. Radzik also alleges that the judge questioned the status of the neo-NCJ which gave her the nomination to the office of regional court judge. Maczuga did this in a dissenting opinion which he submitted to the ruling.


Radzik qualifies this as a breach of Article 82, para. 1 of the Act on the Structure of the Ordinary Courts, which states that a judge is to act in accordance with his oath. Meanwhile, the oath obliges the judge to uphold the legal order and not to breach the principles of judicial ethics. Radzik believes that Judge Maczuga also breached Article 107, para. 3 and 5 of the Act on the courts.


Paragraph 3 was introduced by the Muzzle Act and applies to the questioning of the status of neo-judges and, among others, the neo-NCJ. Paragraph 5 applies to a breach of the dignity of the office of a judge. The second charge against Judge Maczuga may be identical. For questioning the status of Neo-judge Fronc in September 2022, in a dissenting opinion to another ruling.

Two further charges apply to the case of fining the head of the neo-NCJ


The next two charges that Judge Maczuga could be facing are related to a case described by the Kraków edition of Gazeta Wyborcza. In 2022, the judge was a member of a three-person bench, which was to hear an appeal against a judgment of the District Court in Wadowice. The judgment was passed by Neo-judge Karolina Miklaszewska, president of that court. The President appointed her to the office of judge in May 2020.


In addition to Judge Maczuga, who was the clerk of the case, the bench hearing the appeal also consisted of the legal Judge Rafał Lisak and Neo-judge Małgorzata Fronc. Before the judgment was issued, Judge Maczuga asked the neo-NCJ to send documents related to Miklaszewska’s nomination. These were needed to conduct a test of independence.


But the neo-NCJ refused to provide the documents several times, so Maczuga imposed a PLN 3,000 fine on the chair of the neo-NCJ, Dagmara Pawełczyk-Woicka (she is the former president of the Regional Court in Kraków). This turned into a scandal.


As ‘Gazeta Wyborcza’ wrote, the chair of the criminal appeals division, Elżbieta Jabłońska-Malik, was supposed to have asked another member of that bench, Rafał Lisak, to bring about a change in the order regarding the fine. Małgorzata Fronc was also purportedly pressured. There were suggestions that the appeal hearing set for 25 November 2022 would not take place as scheduled.


That day, only Maczuga came to the hearing; the other members of the bench suddenly took leave on demand. They also later denied that they had been pressured. The duty judges, Neo-judge Jędrzej Dessoulavy-Śliwiński and Sebastian Mazurek (who was ruling on secondment at the time) joined the bench in their place. They outvoted Maczuga and no test of the neo-judge from Wadowice took place. Her judgment was upheld, only the sentence was mitigated for the convict. The fine for the head of the neo-NCJ was also cancelled.


Maczuga filed a dissenting opinion to this judgment, in which he questioned the status of the neo-judge and the seconded judge. He then also reported the suspicion of the ruling having been influenced to the court president. This notice was forwarded to the public prosecutor’s office. And for that, the judge is now facing two further disciplinary charges.


One for once again questioning the status of Neo-judge Fronc (before she suddenly went on leave) and Karolina Miklaszewska. Deputy Disciplinary Commissioner Przemysław Radzik classifies this as an act under the Muzzle Act and as a breach of the dignity of the office of judge.


The second possible disciplinary charge applies to what happened at the hearing on 25 November 2022. Radzik believes Judge Maczuga contested the status of the neo-judge and the seconded judge. He also alleges that he was disruptive at the hearing. There was then an exchange of words with the neo-judge presiding over the trial. Because he did not allow Judge Maczuga to speak, even though he was the clerk of the case. Radzik qualifies this as a breach of the dignity of the office of judge.


How Ziobro’s people are prosecuting Judge Maczuga


This is not the first time that Judge Wojciech Maczuga has experienced reprisals for his judicial activity and for applying European law. He first started to be prosecuted four years ago. In 2019, he was charged with a disciplinary charge for wanting to examine the status of an assessor who had issued a judgment in the first instance.


Judges Rafal Lisak and Kazimierz Wilczek, who were with him in a three-person bench at the time, were also charged. The charges were brought against them by the chief disciplinary commissioner, Piotr Schab. The judges were reported to the disciplinary commissioner by the then president of the court, Dagmara Pawełczyk-Woicka (who is now the chair of the illegal neo-NCJ). This was the first disciplinary action in Poland for contesting the legality of the neo-NCJ.


The matter has not ended with the disciplinary action. The disciplinary commissioner still requested the illegal Disciplinary Chamber to suspend them.


This request will be heard by the new Chamber of Professional Liability of the Supreme Court, which replaced the liquidated Disciplinary Chamber. Since then, Judge Lisak has no longer challenged the status of neo-judges. While Judge Wilczek has already retired.


In October 2021, Judge Maczuga was suddenly transferred as punishment from the Fourth Criminal Appellate Division of the Regional Court of Kraków to the Sixth Division, which rules as a first instance court. This was the decision of the then court president, Dagmara Pawełczyk-Woicka. This move was intended to prevent Maczuga from challenging the judgments of the district courts issued by neo-judges.


The direct reason for his transfer was that he had issued a statement that he would not adjudicate with neo-judges. However, Maczuga continued to contest the status of the neo-judges because he was ending old cases in the appellate division. In one of these, he imposed a PLN 3,000 fine on Pawanczyk-Woicka, as the chair of the neo-NCJ.


Wojciech Maczuga was prosecuted by Przemysław Radzik for the first time in February 2022. He initiated investigations against him for questioning the status of a neo-judge. Radzik then also relied on the Muzzle Act. He has not pressed disciplinary charges against the judge to date.


In turn, in March 2022, it transpired that the internal affairs department of the National Prosecutor’s Office took an interest in the judge. It was investigating the fact that Maczuga was hanging posters in the Kraków court with Judge Waldemar Żurek. These were in defence of another repressed judge, Maciej Czajka.


They then got into an exchange of words with the then director of the Regional Court in Kraków, Piotr Słaby – a nominee of Ziobro’s ministry – who was tearing down their posters. Słaby felt offended by the ironic and humorous remarks of the judges. And reported this to the prosecutor’s office as an insult of an official. The public prosecutor’s office summoned the Kraków judges for questioning as witnesses.


However, Maczuga has not let himself be broken and has been consistently applying European law and the Constitution all the time. He is not only contesting the status of the neo-judges. He has also been contesting the judgments passed by judges seconded by the Minister of Justice on the basis of the CJEU ruling of November 2021.


Because the European Court questioned the minister’s right to second judges on the grounds that this could breach their independence. This is because the minister can remove a judge from a secondment at any time without giving a reason and therefore influence his judgments. Furthermore, as experience shows, it is now rather ‘their own’ judges who have the opportunity to apply for the minister’s secondment to adjudicate in a higher instance court.


On the basis of this CJEU ruling, Judge Maczuga also questioned the status of the seconded judge with whom he ruled in November 2022 in the case in which he fined the chair of the neo-NCJ.


How the Kraków judges were being repressed


Judge Wojciech Maczuga is not the only judge of the Regional Court in Kraków being repressed. This is because the Kraków judges are known for their hard line defence of the rule of law and the free courts. They have been doing this since the start of the PiS rule. That is why Dagmara Pawełczyk-Woicka, a member of the illegal neo-NCJ, who became president of that court at the beginning of 2018, fell into conflict with them. She is Justice Minister Zbigniew Ziobro’s former schoolmate.


Judge Waldemar Żurek, former press officer of the legal NCJ, one of the symbols of the free courts, was the first victim of the repression. First, Pawełczyk-Woicka transferred him to another division in the court as punishment. He was the first judge punished in this way. A hail of disciplinary action then fell upon him. He already has more than twenty of these. The National Prosecutor’s Office was also looking for an excuse to charge him.


The judge had a major success recently. The Regional Court in Katowice issued a non-final ruling that he had been discriminated against and oppressed by the court’s management. Żurek has already reported the former president, Pawełczyk-Woicka, to the prosecutor’s office. In turn, the District Court in Katowice ordered the prosecution of his online haters.


Pawełczyk-Woicka, as president of the court, forcibly prohibited the judges from enforcing the ECtHR and CJEU judgments. She was threatening them with removal from the profession for refusing to adjudicate with neo-judges. She personally suspended Judge Maciej Ferek and Anna Głowacka for a month. As a result, Ferek was suspended for more than a year by the illegal Disciplinary Chamber. And the new Professional Liability Chamber only recently lifted his suspension, deciding that it was inadmissible to suspend him for applying European law. The motion to suspend Judge Głowacka has not yet been examined.


It was Pawełczyk-Woicka who also transferred further judges as punishment. In addition to Maczuga and Żurek, she also forcibly transferred Beata Morawiec (she is the head of the Themis association of judges), Katarzyna Wierzbicka and Maciej Czajka to other divisions. The last of these was transferred against his specialisation from the criminal division to the civil division. But after the judges protested, the court president backed down from this decision.


Kraków judges also have numerous disciplinary actions for enforcing ECtHR and CJEU rulings, statements to the media and meetings with citizens. Pawlak-Woicka initiated some of these disciplinary actions. In addition to Żurek and Maczuga, disciplinary actions are also pending against Judges Maciej Czajka, Dariusz Mazur, and Edyta Barańska. They are being prosecuted by Chief Disciplinary Commissioner Piotr Schab and his two deputies Przemysław Radzik and Michał Lasota.


Furthermore, the National Prosecutor’s Office is looking for a pretext to charge them. In addition to trawling through Judge Żurek and Maczuga, it also wanted to press groundless criminal charges against Beata Morawiec. But even the illegal Disciplinary Chamber ultimately did not agree to her immunity being lifted. The National Prosecutor’s Office was also looking for an excuse to charge Judge Maciej Czajka for speaking to OKO.press about the implementation of the July 2021 CJEU rulings on the illegal Disciplinary Chamber.


The article was published in OKO.press on the 4th of April 2023.


Journalist covering law and politics for OKO.press. Previously journalist at Gazeta Wyborcza, Rzeczpospolita, Polska The Times, Dziennik Gazeta Prawna.



April 12, 2023


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