Judge Piotr Gąciarek from the Regional Court in Warsaw was removed from adjudicating on Monday, 13 September 2021. The president of the court, Piotr Schab, a nominee of Minister Ziobro and simultaneously the chief disciplinary commissioner, who is known for prosecuting independent judges, issued the order in this case.

Schab suspended the judge for a month for a declaration made a few days earlier in which Gąciarek refused to adjudicate in a bench with a judge promoted by the new, political National Council of the Judiciary.  This was about Judge Stanisław Zdun, who had been promoted by the new NCJ to the regional court. According to Schab, by refusing to adjudicate with a neo-judge, Judge Gąciarek failed to perform his official duties. The deputy disciplinary commissioner has already started to prosecute the judge.

Gąciarek is the second judge recently suspended for refusing to adjudicate with a neo-judge in the performance of the July judgment of the CJEU and the ECtHR.

The first was Adam Synakiewicz from the Regional Court in Częstochowa. Minister of Justice Zbigniew Ziobro had personally suspended him for a month several days ago. Judges’ Cooperation Forum (Forum Współpracy Sędziów) requested the Commissioner for Human Rights to intervene in this matter.  The Forum is accusing the minister of acting in conflict with the Constitution. 

These repressions have not scared the judges. Because there are more judges who do not want to adjudicate with neo-judges, who were promoted by the new NCJ.

Two judges from the Regional Court in Olsztyn have just issued such a declaration, MałgorzataTomkiewicz and Wiesław Kasprzyk. They are refusing to adjudicate with Tomasz Koszewski, who the president had appointed to the office of regional court judge in Olsztyn several days ago. Koszewski is considered to be a supporter of the president of the District Court in Olsztyn, Maciej Nawacki, who, despite court judgments, is blocking Judge Paweł Juszczyszyn’sreturn to work.

The judges do not want to adjudicate with Koszewski out of concern for the ‘correct functioning of the judiciary’ – they do not want to issue judgments with him that can be overturned – and out of concern for the ‘dignity of the office of a regional court judge’.

What Schab suspended Judge Gąciarek for

Judge Piotr Gąciarek also was not frightened by the suspension. ‘The president of the court has done his job, he has done what Minister Ziobro expects. Removal from adjudication is a dramatic moment for any judge. But I do not regret a thing, because I do not have the right to legitimise the lawlessness of recognising the National Council of the Judiciary as a legally operating body. Being removed from adjudicating will not break me, I will not give up, I will continue to be an independent judge,’ Judge Piotr Gąciarek tells us.

Court President Piotr Schab removed him for the letter he sent to him on 6 September 2021. In it, Gąciarekrefused to be a part of a bench with neo-judge StanisławZdun, who is simultaneously vice-president of the capital’s district court, nominated by Minister Ziobro. Zdun was promoted to the regional court by the new, political NCJ. While its legality, as well as the legality of the promotions it has awarded, was questioned in the July rulings of the CJEU and ECtHR. 

As arises from Schab’s order, the judge is already being dealt with by one of the two deputy disciplinary commissioners who initiated the investigation. The case is probably being handled by Michal Lasota, who had previously taken an interest in Gąciarek’s work, because it was several months ago that the judge first refused to adjudicate with Zdun. Schab punished him for that declaration by removing him from adjudicating in important proceedings and transferring him to another division in the court.

The details of the investigation being conducted by the disciplinary commissioner are not known. It can be assumed that Gąciarek is facing disciplinary charges for breaching the unconstitutional Muzzle Act, which prohibits judges from challenging the status of neo-judges. However, in the interim measure of 14 July 2021, the CJEU suspended these provisions and judges cannot be punished for this.

This is not the end of Judge Gąciarek’s repressions for defending free courts. Minister Ziobro had ordered him to be disciplined for defending Judge Igor Tuleya in front of the National Prosecutor’s Office. 

How Ziobro suspended the judge for his judgments

Judge Adam Synakiewicz of the Regional Court in Częstochowa was not afraid of repression in the form of a month’s suspension either. He was removed from adjudicating by the Minister of Justice Zbigniew Ziobrohimself several days ago. This is a punishment for the submission by the judge of dissenting opinions to judgments issued by a bench with the involvement of a neo-judge in July 2021. Meanwhile, in August, Synakiewicz overturned the judgment issued by the neo-judge.

In doing so, he implemented the July rulings of the CJEU and ECtHR, which referred to the defectiveness of the system of promoting judges in Poland by the new NCJ, which is not independent of the politicians.

And there are already around a thousand of them. The problem is that judgments issued with their involvement can be challenged because of the defective staffing of the court.

By suspending Judge Adam Synakiewicz, Ziobro directly breached the CJEU’s interim measure of 14 July 2021, for which he exposed himself to criminal liability in the future, as did Deputy Disciplinary Commissioner Przemysław Radzik, who initiated an investigation against Synakiewicz (he also breached the CJEU’s interim measure).

The judge is currently on leave, but the president of the Częstochowa court, Rafał Olszewski, is implementing the minister’s decision. He is not currently appointing Synakiewicz for drawing new cases. He is also removing cases from the court agenda, which he was supposed to consider after returning from leave. The president is thereby sanctioning the breach of the CJEU ruling by the minister, although he had previously refused to allow the disciplinary commissioner to suspend the judge, stating that there were no grounds for doing so.

Ziobro’s decision is in breach of the Constitution

The Judges’ Cooperation Forum – a loose agreement of judges from the whole of Poland that supports independent judges and takes positions on key issues has taken to defend Adam Synakiewicz. On Monday, 13 September 2021, the Forum requested the Ombudsman to intervene in the case of the judge’s suspension. It is appealing to the Ombudsman to request the Minister of Justice to cancel this decision. The Forum also wants the Commissioner for Human Rights to take steps to delete the unconstitutional regulation allowing the minister to suspend judges.

In suspending Synakiewicz for a month, the minister referred to Article 130 of the Act on the structure of ordinary courts. President Schab referred to the same provision when suspending Gąciarek. Article 130, para.1 states:  ‘§ 1. If a judge is detained because of being caught in the act of committing an intentional crime or if, due to the nature of the act committed by the judge, the dignity of the court or the important interests of the office require that he be immediately removed from performing his duties, the president of the court or the minister of justice may order the immediate interruption of the judge’s duties until a resolution is issued by the disciplinary court, for no longer than a month.’

In its request to the Ombudsman, the Judges Cooperation Forum writes, ‘The institution of ordering the immediate stoppage of a judge’s work, which is regulated in Article 130 of the Act on the structure of ordinary courts, is essentially synonymous with the suspension of a judge from his duties. According to Article 180 para. 2 of the Constitution, a judge may only be suspended from office by way of a court judgment. In the light of the Polish Constitution, no executive authority, let alone a politician, is entitled to deprive a judge of the right to practice his profession.’

And the Forum writes on: ‘We understand that, in drastic situations (aside from the completely different case of Judge Adam Synakiewicz), it must be possible to immediately remove a judge from work, even before the decision of the disciplinary court has been issued. Therefore, in principle, we do not object to the institution of ordering a suspension. However, such a decision may only be issued by the judge’s immediate supervisor, the court president, with the disciplinary tribunal ensuring an immediate review of the decision.

A situation in which a body of the executive, and an active politician expressing dissatisfaction with the content of a decision of an independent court, makes a decision to temporarily deprive a judge of the right to practice his profession, is completely unacceptable in a democratic state governed by the rule of law (Article 2 of the Constitution), breaches the tripartite division and balance of powers provided for in the Constitution and the related independence of the judiciary from the executive (Article 10, para. 1 of the Polish Constitution), leads to the executive usurping its supremacy over the judiciary and intimidates and forces judges to rule in accordance with the expectations of the ruling party.’

The Forum also writes that the minister’s decision is in conflict with the CJEU’s interim measure of July 2021. ‘This is because its basis lies solely in Judge Adam Synakiewicz issuing a decision that is inconsistent with the expectations of the executive authority and the politicians of the ruling party,’ the Forum wrote in its request to the Commissioner for Human Rights. The whole of the request can be found here.

More judges will implement the CJEU and ECtHR rulings

Now, the further fate of Judges Gąciarek and Synakiewicz should be decided on by the disciplinary court, which will either overturn their removal or suspend them until the end of the investigations. The illegal Disciplinary Chamber, which has been suspended and delegalized by the CJEU, may try to make a decision in these cases. If the Chamber deals with the suspension of the judges, it will once again breach the CJEU judgments from the middle of July 2021.

Other than Judges Gąciarek, Synakiewicz and two judges from Olsztyn, Judge Jacek Tyszka of the Regional Court in Warsaw has also refused to adjudicate with neo-judges in recent months. He also issued a statement on the matter, which the court management treated absurdly as the resignation from his office of judge.

In turn, a judge from the capital’s district court, Marta Pilśnik, overturned the arrest of a prosecutor accused of corruption, because she implemented the July judgment of the CJEU and ECtHR. The judge held that the prosecutor’s immunity was not effectively lifted because this was done by an illegal Disciplinary Chamber, the status of which was challenged by the ECtHR and the CJEU.

Translated by Roman Wojtasz

First published in Polish at OKO.press.

Link to the translation of the Schab’s order: Order_eng