The text was originally published in OKO.press on 23 March 2019.

This is the first verdict of this kind from the new Disciplinary Chamber of the Supreme Court which was established by the Law and Justice party (PiS) last year. It was passed on Friday and electrified the whole of the judicial environment throughout Poland. Because this was the first time that the Disciplinary Chamber assessed a judge’s decision as being incorrect and punished a judge with a disciplinary penalty for a decision that had been issued.

The judge, who was punished on Friday, was Alina Czubieniak from the Regional Court in Gorzów Wielkopolski. She has 35 years of experience of working in courts. She was the president of that court a dozen or so years ago, whereas she is currently the head of the criminal appeal division.

The judge overruled the custody order because the accused had no defence attorney

Minister Ziobro’s ministry and the disciplinary commissioner for judges disapproved of the ruling from August 2016. This was passed in a case of a 19-year-old who was harassing a 9-year-old girl. The girl was walking her dog; the boy was supposed to have grabbed her, groped her and kissed her. The girl fled home and told her parents everything and they told the police. The boy was arrested without any problems.

The local district prosecution office charged him with another sexual act with a minor and filed for his temporary detention. The District Court in Międzyrzecze acknowledged that, in view of the allegations and the threat of similar acts being committed in the future, the boy has to be kept in custody.

Until then, the boy had no defence attorney, not even one appointed by the court; an attorney was only appointed after the custody order was issued. The defence attorney quickly appealed to the Regional Court in Gorzów Wielkopolski. Judge Czubieniak received the case. She overruled the custody order, which the regional prosecutor, who was present at the hearing, also requested, despite the earlier position of the district prosecutor.

He could not read or write

Judge Czubieniak quickly established that the 19-year-old was intellectually disabled. He could not read or write. It also transpired that he was known to the local community; everyone knew how he behaved, that he also happened to accost older girls who rejected his advances. After all, the 19-year-old confessed to everything at the police station when he was being questioned. While he was being questioned, he also said that he does not know how to read or write.

When Judge Alina Czubieniak saw all this, she made the unpopular decision and overruled the custody order despite the serious allegation of paedophilic acts. The judge decided that a sick person should have a public defence attorney from the very beginning – namely from the time of being questioned by the police. All the more so that he is illiterate.

The prosecution office again applied for his arrest, but then the 19-year-old already had an attorney. And the boy was finally arrested for over a month, but he not in an ordinary jail, but one with a medical ward.

Later, due to his illness – psychiatrists concluded that he was insane when harassing the girl – the case was discontinued. The boy was referred to sexology and psychiatric therapy; he was also under the obligation to wear an electronic bracelet.

The court of appeal overrules the disciplinary action

However, there was uproar in the local press about Judge Czubieniak’s decision to overrule the custody order, which wrote that the court had released a paedophile. District Prosecutor Sławomir Dudziak made a statement in it. It was he who was handling the case of the 19-year-old and applied for the arrest. In the press, he assessed the court’s decision as being erroneous. He warned that the judge had set a dangerous person free.

The Ministry of Justice took an interest in the case. As a result, it approached the disciplinary commissioner at the Court of Appeal in Szczecin. And the commissioner considered that Judge Czubieniak had committed misconduct in connection with a ‘gross breach of the law.’

However, the disciplinary court at the Court of Appeal in Wrocław acquitted the judge from the disciplinary charge. It confirmed that an insane person should have an attorney from the very beginning of the preparatory proceedings. Whereas the 19-year-old was deprived of his right of defence.

The ministry disagrees

The judgment was questioned by the minister of justice and deputy disciplinary commissioner at the Court of Appeal in Szczecin. They both appealed against it to the newly appointed Disciplinary Chamber of the Supreme Court. They both wanted it to be overruled.

In both appeals, it was argued that Judge Czubieniak had incorrectly applied the provisions of the Criminal Procedures Code by overruling the arrest in the judgment. When overruling the arrest, Alina Czubieniak referred to Articles 437, para. 2 and 439 para. 1 item 10 of the Criminal Procedures Code.

They say that the court can overrule a decision if the accused in court proceedings did not have a defence attorney or the defence attorney did not take part in activities in which his participation is obligatory. These articles refer to the next provision of this code, namely Article 79, para. 1. This provision states that the accused must have an attorney in criminal proceedings, if he is insane.

Therefore, Judge Czubieniak decided that, in this case, the defence attorney should have been there from the very beginning, namely from the moment that he was being questioned by the police. After all, the case applies to a sick and illiterate person.

However, the Minister of Justice and the disciplinary commissioner concluded that the judge had misinterpreted the rules. They argued that they apply to court proceedings, namely after the indictment, and not to the preparatory proceedings, namely when the investigation was being conducted.

A defence attorney is not necessary?

In their opinion, the matter of the custody was a part of the pre-trial investigation and a defence attorney’s involvement was not necessary. In confirmation, they referred to one of the judgments of the Supreme Court.

They also accused the judge of breaching Article 249 of the Criminal Procedures Code, which states that the court or prosecutor must question the suspect before the custody order is issued.

This provision also says that a defence attorney may attend the questioning ‘if he attends’. It is not obligatory to notify a defence attorney of the questioning unless this is requested by the suspect. They argued from this that there was no need for a defence attorney to be present at the 19-year-old’s questioning, so the judge had no grounds to overrule the custody order.

The minister of justice additionally emphasized that overruling the custody order posed a threat to the girl whom he had been harassing. He also claimed there was a concern that he would commit other similar acts.

The disciplinary court in Wroclaw had previously made reference to these allegations in the judgment acquitting the judge. It acknowledged that she was entitled to interpret the provisions of the Criminal Procedures Code to the benefit of the suspect.

All the more so that the case applied to a person who is intellectually disabled, who is unable to read or write. The disciplinary court also concluded that the release of the 19-year-old (he had remained in jail for 15 days before he was remanded in custody) did not pose a threat to anyone.

Furthermore, Judge Czubieniak did not adjudicate on the fact that the suspect should be released, only that the arrest procedure should be repeated, but with the involvement of a defence attorney.

Czubieniak: This was a breach of the right to a defence

The case came up in the new Disciplinary Board of the Supreme Court on Friday.

The appeal against the judge’s acquittal from the disciplinary charges was supported in the courtroom by a representative of the ministry and the main disciplinary commissioner for judges, Piotr Schab (who had been appointed to this position by Minister Ziobro).

Schab alleged that Czubieniak had misinterpreted the regulations. ‘Procedural rules had been breached’ emphasized Schab. He argued that a person who could have committed a similar act because of his mental and emotional condition remained free as a result.

Judge Alina Czubieniak was also in the courtroom. Her speech was emotional, because the disciplinary action regarding the ruling had seriously affected her. She emphasized that, as a judge, she had the right to interpret the law, and not just to mechanically apply a regulation taken out of context.

‘We have Article 42 of the Constitution, which says that everyone has the right to a defence attorney at every stage of criminal proceedings. Therefore, its lack at the pre-trial stage is a breach of the Constitution,’ said the judge.

‘He received a file of documents but cannot read’

She emphasized that the provisions of the Criminal Procedures Code and international agreements give the right to defend an intellectually disabled suspect. She added that the way in which the 19-year-old was instructed about his rights in the prosecutor’s office was a mockery. ‘He received a file of documents but cannot read,’ she emphasized.

She said that Article 249 of the Criminal Procedures Code, which she was supposed to have breached, had to be interpreted and read together with other Articles of the Criminal Procedures Code that refer to the right to an attorney.

‘Because if it were applied in isolation of other regulations, this would be a breach of the right to a defence,’ she argued to the Disciplinary Chamber. She explained that the 19-year-old should have had a defence attorney from the moment that it was known that he was insane.

‘This person did not know what was happening to him, while the district court ordered his detention in a jail, without a hospital,’ she emphasized. She asked what would happen to the boy if he was sent to a cell with criminals.

‘Wouldn’t his life have been threatened with such an allegation [sexual harassment of a 9-year-old girl – editor],’ she asked.

She added: ‘I have been adjudicating for 35 years and try not to issue only sad sentences, but also to rule on justice. The judge has the right to interpret the rules so that they are consistent and not taken out of context. He [the 19-year-old – editor] met a girl at random; it is not true that he was importunate with respect to other teenagers. It was his acquaintances who addressed him so abruptly.

The psychiatrist did not find that he poses a real threat to need to isolate him. This is a very sick person. That is why I decided that the enormity of the breaches of the law was so great that the custody order was to be overruled. Not only was I outraged as to how he had been treated, but so was the prosecutor himself [the regional prosecutor – editor]. He also applied for his release. I am not saying that the handicapped should not bear the consequences of their actions, but they cannot be treated in this way. Nor can judges be treated as criminals [for bold judgments – editor]. When I was writing my articles, my patron told me “Girl, you have to apply the law, reason and conscience”. And I applied it in this case.’

The judge-rapporteur asked: ‘Why did you apply Article 439?’

Czubieniak replied: ‘Because the defence attorney’s and prosecutor’s motions to overrule the decision of the district court were consistent. Therefore, I decided that I did not have to analyse this provision in any depth. I overruled this decision because it was a gross breach of the right to a defence.’

A  judgment previously prepared

The Disciplinary Chamber was not convinced by her speech. The judgment was issued after a short consultation and had already been prepared because the judge had the justification on a sheet of paper.

The Judges of the Disciplinary Chamber changed the acquittal and reprimanded the judge. They considered that she had incorrectly applied the laws by accepting that the involvement of an attorney was obligatory at the pre-trial stage.

‘The failure to notify the defence attorney of the session regarding the pre-trial detention did not justify overruling that decision. The presence of a defence attorney was not obligatory. Defence is not absolute,’ said Judge Paweł Czubik (court rapporteur in this case).

He emphasized that Article 439 could not constitute grounds for the repeal, because a defence would be obligatory, but only after the indictment was filed. In his opinion, the judge could have overruled the decision on the basis of Article 440 of the Criminal Procedures Code and there would not have been a disciplinary case then. This provision allows for a ‘grossly unjust’ judgment to be overruled.

In addition, the bench of the Disciplinary Chamber emphasized in the justification of the judgment that the disciplinary court had ignored the threat to the minor. That her interest had been breached and the lack of custody posed a threat to the investigation, because the girl had not yet been questioned.

That is why the judge was punished with a reprimand, although according to the panel of the Disciplinary Chamber, it is a mild punishment which enables the achievement of the objectives of the disciplinary punishment. ‘The penalty has a preventive attribute and is a correct response to the formation of attitudes among judges,’ said Judge Paweł Czubik.

Finally, he added from himself that he knew what the judge was guided by when repealing the custody order. That she had good intentions but unintentionally made a mistake. ‘As if she had been disrupted,’ he said. He added that the reprimand is for the ‘classic loss of attention.’

The judge can appeal to another panel of the Disciplinary Chamber and has already announced that she would. ‘I have been convicted after 35 years of work as a judge. The court accepted the arguments of the minister of justice,’ said Alina Czubieniak backstage in the Supreme Court after hearing the judgment. She made the assurance that she would pass the same sentence today.

Czubieniak demanded the removal of the judges appointed by the National Council of the Judiciary

The disciplinary judgment was issued by two judges of the Disciplinary Chamber, Paweł Czubik (judge rapporteur) and Tomasz Przesławski (presiding judge), as well as lay judge Hanna Wiśniarska.

Interestingly, the first hearing in this case was held on Thursday. Czubieniak submitted the motion to remove all judges of the two new Chambers of the Supreme Court who had been appointed by Law and Justice, namely the Disciplinary Chamber and the Chamber of Extraordinary Control and Public Affairs.

In the motion regarding the removal, she referred to doubts about the legality of the appointment of these judges. Because the recruitment to these Chambers was conducted by the new NCJ that had been chosen in an unconstitutional manner. Meanwhile, the president appointed them disregarding the ruling of the Supreme Administrative Court, which froze appointments pending consideration of the questions for preliminary rulings by the CJEU.

Judge Wytrykowski ruled in his own case

However, the motion to remove these judges was not accepted. Konrad Wytrykowski from the Disciplinary Chamber considered it on Thursday. He considered the removal to be groundless. Wytrykowski issued this ruling, even though the motion for the removal also applied to him. Under normal circumstances, a judge to whom a motion for removal applies must not consider the motion.

Promotion for the prosecutor, he will become a judge

Sławomir Dudziak, District Prosecutor from Międzyrzecze, who filed for the arrest of the 19-year-old and later criticized the judge in the press, will become a judge of the District Court in Międzyrzecze. The National Council of the Judiciary issued a positive opinion on his candidacy. And he is now just waiting for his appointment by the president.

Translated by Roman Wojtasz