Judge Niklas-Bibik suspended for applying EU law and for asking preliminary questions to the CJEU
Judge Agnieszka Niklas-Bibik from Słupsk is the first Polish judge suspended for asking preliminary questions to the CJEU. She was also repressed for enforcing judgments of the ECtHR and the CJEU. The judge was suspended by the president of the Słupsk court, appointed by Zbigniew Ziobro
Judge Agnieszka Niklas-Bibik was suspended for one month on Friday 29 October 2021, just two days after the Court of Justice of the European Union imposed a record €1 million per day fine on Poland for failing to dismantle the illegal Disciplinary Chamber in the Supreme Court.
The judge’s suspension is a blatant violation of the CJEU’s July 14 order, which suspended provisions of the unconstitutional muzzle law prohibiting, under penalty of law, the investigation of the status of judges appointed in the procedure in which the new National Judiciary Council was involved (‘neo-judges’).
Moreover, the judge was suspended despite the fact that the head of the European Commission, Ursula von der Leyen, made it clear that one of the three conditions for the payment of billions of euros to Poland from the National Recovery Plan was the reinstatement of suspended judges.
When von der Leyen said this on October 19 during a debate in the European Parliament on the rule of law in Poland, there were six such suspended judges (one had already returned to work).
But Minister Ziobro’s people in the courts did not care about the European Commission’s president’s words and have since suspended another two judges.
Agnieszka Niklas-Bibik is the eighth suspended judge in Poland, and the sixth to be suspended for implementing ECHR and CJEU judgments. She is also the first suspended judge for asking preliminary questions to the CJEU. Judges are also criminally transferred to other divisions for applying EU law. This happened to the judge from Słupsk as well.
“The suspension is against the CJEU’s order of July 14, 2021. It is a form of repression and prevents me from applying EU law and asking preliminary questions. But it will not break me. I will continue to do what a judge is supposed to do. I had the right to apply the judgments of the ECHR and the CJEU” – judge Agnieszka Niklas-Bibik tells us.
She adds: “I was counting on such consequences, but a judge cannot think what will happen to him for applying the law. I can’t weigh whether the good of the citizen or my personal comfort is more important.”
Who suspended the judge
The decision to suspend the judge for a month was made on Friday, October 29th by Andrzej Michałowicz, the president of the Regional Court in Słupsk, who was nominated by Minister Ziobro. Michałowicz is also a neo-judge, because he was promoted to the circuit court by the new NCJ. Privately, he is the husband of Joanna Kołodziej-Michałowicz, a member of the new NCJ. Kołodziej-Michałowicz was also promoted by the new NCJ, as was her sister Ewa Kołodziej-Dubowska.
In suspending Niklas-Bibik, the president of the Slupsk court invoked article 130, paragraph 1 of the Act on the Common Courts, which states: “If a judge is detained due to being caught in the act of committing an intentional crime or if, due to the nature of the act committed by the judge, the solemnity of the court or the vital interests of the service require that he or she be immediately removed from the performance of official duties, the president of the court or the Minister of Justice may order an immediate break in the judge’s official duties until a resolution is issued by the disciplinary court, for no longer than a month.”
Only that the judge neither committed any crime, nor violated the dignity of the judiciary. She was suspended for her rulings.
The Judge Applied EU Law
Judge Agnieszka Niklas-Bibik has ruled in criminal cases for 25 years. Recently, authorities of the Słupsk court congratulated her on that. In recent years, she has served on the appeal division of the Słupsk Regional Court, which handles appeals against judgments by district courts. She specializes is European law and has been involved in defending the rule of law in Poland.
Judge Niklas-Bibik has been harassed for two rulings and for two preliminary questions from October 2021.
The judge heard an appeal against the judgment of the District Court in Chojnice concerning a sentence of two and a half years in prison for robbery. The defendant in this case voluntarily submitted to the punishment, but the prosecutor appealed.
On October 4, 2021, Niklas-Bibik overturned that sentence. Because the panel issuing it included a neo-judge, that is, a judge nominated by the new, politicized NCJ. The judge referred the case to a hearing on the grounds of absolute cause for appeal and overturned the verdict as having been issued by a defectively staffed court.
She cited recent rulings by the CJEU and ECtHR challenging the legality of the new NCJ and the judicial appointments it gave. In particular, she applied the ECtHR’s December 2020 judgment on the appointment of judges in Iceland (Guðmundur Andri Ástráðsson v. Iceland). In that judgment, the ECtHR ruled that a three-step test for the independence of a defectively staffed court must be applied to assess the legality of judicial appointments. The issue is whether the irregularities in the judicial appointment procedure are serious enough to violate the parties’ right to a trial before an independent and impartial court.
Judge Niklas-Bibik also applied the July 2021 ECHR judgment concerning Poland, the 2021 Supreme rulings challenging the legality of the NCJ, and its Supreme Court appointments (Reczkowicz v Poland).
She also applied the January 2020 resolution of the full composition of the Supreme Court and the September 2021 rulings of the Supreme Court challenging the legality of the NCJ and the status of neo-judges.
The judge also invoked Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees the right to a fair trial before an independent court. And she applied Article 47 of the EU Charter of Fundamental Rights, which also guarantees the right to a trial before an impartial and independent court. Such right is also guaranteed by Article 45 of the Constitution of the Republic of Poland.
By overturning the verdict because it was handed down with the participation of a neo-judge, Agnieszka Niklas-Bibik also ruled on the use of temporary custody against the convict. The judge overturned it for two reasons. Because there were no grounds for it. The detention was also decided by the neo-senior judge. Instead, she imposed other non-custodial preventive measures on the defendant.
Criminal transfer of the judge
Reprisals did not immediately fall on Judge Niklas-Bibik for her ruling. After two weeks – that is, on October 18, 2021 – she was suddenly, immediately transferred from the Appeals Division to the Criminal Division adjudicating as a court of the first instance. The official reason is to ensure efficiency in the work of this department. What is important and so far rather rare, she was simultaneously relieved – although she did not ask for it – from hearing cases in the appellate division.
Until now, when judges were transferred to other departments, they tended to be told to finish old cases. This is for the good of the litigants, so that new panels are not appointed and cases are not reopened. The four judges from Cracow and judge Piotr Gączarek from Warsaw who were transferred for applying EU law were told to finish their old cases.
However, Judge Niklas-Bibik was deprived of all 70 appeal cases she had handled so far. She was relieved from examining them by the Circuit Court Board in Słupsk, which is composed of the president of the circuit court and presidents of district courts from the Słupsk region. The court presidents are people nominated or approved by Minister Ziobro’s ministry.
“I was not warned about the change of department. This is a violation of the Constitution, a judge cannot be moved against his will. Nor can judges have their cases taken away. The composition of the court is assigned and it cannot be changed at will. Even if a judge is transferred to another department, he or she should finish the cases,” Judge Niklas-Bibik told us.
She adds that she did not receive the College’s decision. That is why she took up two cases at a meeting on October 20. She referred preliminary questions to the CJEU on whether a judge can be removed from his or her judicial duties overnight and transferred to another department without his or her consent. It also asked whether a judge can be taken away from previous cases.
What the judge was suspended for
Asking questions triggered further reprisals. The more so because the president of the court in Słupsk, Andrzej Michałowicz, was on the bench in one of the cases in which the judge asked the question. The court authorities prevented the judge from sending questions to the CJEU.
And finally, on Friday, October 29, the president of the court in Slupsk suspended the judge for a month, citing violation of the court’s solemnity and the vital interest of the judicial service.
“I believe that the only reason for the suspension is to prevent me from submitting preliminary questions to the CJEU. I perceive this as a form of repression and preventing me from applying EU law, which is a violation of the Treaty on the Functioning of the EU,” – Agnieszka Niklas-Bibik tells us.
Who has already been suspended by the Disciplinary Chamber, Ziobro and his people?
A judge from Slupsk is the eighth independent judge suspended for defending free courts and for rulings that the authorities do not like.
The judges suspended for this so far are:
- Paweł Juszczyszyn from the District Court in Olsztyn. He was suspended in February 2020 by the illegal Disciplinary Chamber for implementing a CJEU judgment from November 2019. In that judgment, the CJEU said how to examine the legality of the new NCJ and the Disciplinary Chamber. The judge demanded letters of support of candidates to the new NCJ to investigate the legality of its appointment. It was already publicly known that not all members of the new NCJ collected the required number of signatures. Judge Juszczyszyn is the first and the longest suspended judge.
- Igor Tuleya from the District Court in Warsaw. He is one of the symbols of independent courts. Judge Tuleya was suspended in November 2020 by the illegal Disciplinary Chamber, which at the same time lifted his immunity. The judge is being pursued by the National Prosecutor’s Office, which wants to prosecute him for allowing journalists to attend the announcement of a ruling critical of PiS. But Adam Roch of the Disciplinary Chamber has refused to detain Tuleya.
- Beata Morawiec of the Krakow District Court, head of the independent association of Themis judges defending independent courts. She was suspended in October 2020 by the illegal Disciplinary Chamber, which simultaneously lifted her immunity. The judge is being prosecuted by the National Prosecutor’s Office because it wants to bring unbelievable criminal charges. However, her prosecution should be combined with the defense of free courts and the fact that she won a civil lawsuit against the Minister of Justice. After several months, the Disciplinary Chamber in June 2021 refused to allow the prosecution of the judge and she returned to work.
- Adam Synakiewicz of the Częstochowa District Court. He filed several dissenting opinions to the judgments in August 2021, in which he questioned the legality of neo-judges. He also overturned a judgment issued by such a judge for the same reason. Judge Synakiewicz cited the judgments of the ECtHR and the CJEU. For this, he received disciplinary charges, and Minister Zbigniew Ziobro personally removed him from adjudication for a month, with which he deliberately violated the CJEU’s safeguard of July 14, 2021. The judge has now returned to adjudicating.
- Marta Pilśnik from the District Court for Warsaw-Śródmieście. She enforced the CJEU’s July 2021 rulings and released the accused prosecutor from custody. Because she ruled that the Disciplinary Chamber had not effectively waived his immunity. For this, Minister Ziobro personally suspended her for a month. The judge has already returned to work.
- Piotr Gąciarek from the District Court in Warsaw. He refused to rule with the neo-senior judge, for which he was suspended for a month by court president Piotr Schab, an appointee of Minister Ziobro. The judge has now returned to adjudicating.
- Maciej Ferek from the District Court in Krakow. He issued three rulings in which, citing ECHR and CJEU judgments, he challenged the status of neo-senior judges. The president of the court, Dagmara Pawełczyk-Woicka, an appointee of Minister Ziobro and a member of the new NCJ, suspended him for a month for this.
- The eighth suspended judge is Agnieszka Niklas-Bibik from the District Court in Slupsk.
Punitive transfer of judges
Judges are punished not only by suspension for enforcing judgments of the ECtHR, CJEU, and Polish Supreme Court and Supreme Administrative Court.
Administrative repression is also used against them. That is, they are criminally transferred to other departments without their consent. This is decided by court presidents, after approval by the court collegium.
Such repressions have already been inflicted on judges:
- Waldemar Żurek of the District Court in Krakow. He is one of the symbols of free courts, the spokesman of the old legal NCJ. He was transferred first under the current government already in 2018. It was a punishment for defending free courts. He was transferred from the civil appellate division to the first-instance division. The judge appealed and, on the basis of his case, the CJEU issued an important judgment in October 2021. The CJEU ruled that judges cannot be transferred arbitrarily, and challenged the status of neo-Judges from the Supreme Court.
- Łukasz Biliński from the District Court for Warsaw-Downtown. In 2019, he was transferred from the criminal department to the labour department for acquitting street opposition in precedent-setting judgments, citing the Constitution and European law.
- Maciej Czajka, Beata Morawiec, Wojciech Maczuga, and Katarzyna Wierzbicka from the Krakow District Court. They were transferred in October 2021 for issuing a statement that they would challenge the status of neo-judges. They invoked the judgments of the CJEU and the ECtHR. Judge Czajka was punished the most because he was deliberately transferred to the civil division after 20 years of working in the criminal division.
- Piotr Gąciarek from the District Court in Warsaw. In May 2021, he was transferred from the criminal division to the executive division. This is a punishment for having issued a statement that he would not adjudicate with a neo-judge. He cited the rulings of European courts.
In addition, judges who want to apply EU law are being tried by being thrown out of court. Presidents of the regional courts in Krakow and Warsaw have already threatened judges with such reprisal.
The article was published in Polish at OKO.press.