This is an unprecedented case. For the first time, Zbigniew Ziobro’s prosecution service wants to use criminal charges to prosecute and silence a judge who is publicly saying that Poland should implement important CJEU rulings on the illegal Disciplinary Chamber.

It is no coincidence that this applies to Professor Krystian Markiewicz because he is not afraid of speaking out about what PiS and Minister Zbigniew Ziobro are doing to the courts. Under his management, the largest association of independent judges, Iustitia, has also consolidated Polish judges in defence of the rule of law and is a harsh reviewer of Minister Ziobro. The strike at Markiewicz is therefore also a strike at Iustitia and the whole of the community of independent judges, which is to be frozen by the actions of the National Prosecutor’s Office.

Proceedings in the case in which the president of Iustitia is being threatened with criminal charges are being handled by the internal affairs department of the National Prosecution Service. This is a special department set up by PiS to prosecute judges and prosecutors.

This department has just approached OKO.press  to provide information on the preparation of an article in which Professor Krystian Markiewicz says how Poland and who specifically should implement two important rulings of the CJEU of the middle of July 2021 regarding the illegal Disciplinary Chamber.

Another judge, Dr. Maciej Czajka from the Regional Court in Kraków, could also be facing criminal charges for his statements in the same OKO.press article. He is a member of the other association of judges, Themis, which also defends the free courts. Judge Czajka also told OKO.press how the Polish authorities and who specifically should implement the CJEU ruling.

OKO.press will not provide any information to the National Prosecutor’s Office on the drafting of the article. Because this would violate journalistic confidentiality by which we are bound, as well as the statutory obligation to protect the personal rights of people who demonstrate trust in the editorial office. This is stipulated in Article 12, para. 1, item 2 of the Press Law.

Furthermore, we consider the acts of the National Prosecutor’s Office headed by Bogdan Święczkowski – a trustee of Prosecutor General Zbigniew Ziobro – to be an attempt to suppress critical statements made by judges known for their defence of the rule of law and to eliminate them from the judicial profession through the application of criminal charges. It is also an attempt to intimidate the remaining independent judges by creating a ‘chilling effect’ for them.

We also consider the acts of the National Public Prosecutor’s Office to be an attempt to exert pressure and to create a chilling effect for the OKO.press, where we write a great deal about the rule of law and the current government’s attack on the free courts.

The Public Prosecutor’s Office demands information from OKO.press

The National Public Prosecutor’s Office is demanding information from OKO.press about how our article of 15 July 2021 entitled ‘After the CJEU ruling: End of the Disciplinary Chamber. Judges Juszczyszyn and Tuleya return to adjudication’ was prepared. In this article, Judge Professor Krystian Markiewicz, president of Iustitia, and Judge Maciej Czajka of Themis commented on how the CJEU’s interim measure of 14 July 2021 and the CJEU ruling of 15 July 2021 should be implemented.

In its measure, the CJEU suspended the activities of the illegal Chamber, as well as suspending the provisions of the Muzzle Act, in which PiS prohibited judges from examining the status of other judges under the threat of being penalized. In turn, in its ruling of 15 July, the CJEU ruled that the Chamber does not have the features of an impartial and independent court. The consequence of these rulings should be the suspension and liquidation of the Disciplinary Chamber. But the Chamber is still operating because the government has not liquidated it, while Małgorzata Manowska, who is acting as the First President of the Supreme Court, has not fully suspended it. That is why the CJEU imposed a record fine on Poland of 1 million euros per day for failing to enforce the measure.

And now the National Prosecutor’s Office wants to know about the work at OKO.press on the preparation of the article with the statements made by Judges Markiewicz and Czajka.

Prosecutor Łukasz Radke is demanding this information. He, like everyone else in the internal affairs department, is working on secondment, from which he can easily be dismissed, for instance, for issuing a decision that his supervisors do not like. Radke is from the District Prosecutor’s Office in Koło, where he was previously an assessor. It arises from our information that he was appointed to the position outside of a competitive procedure.

We do not know at which stage the proceedings are in the National Prosecutor’s Office – whether these are examination proceedings or whether an investigation has already been initiated. We are also unaware of what the National Prosecutor’s Office might press criminal charges against Judges Markiewicz and Czajka for, and whether these proceedings are ex officio or in response to a motion that was filed.

Both judges spoke about the consequences of the CJEU rulings regarding the Disciplinary Chamber in the OKO.press article. They said the Disciplinary Chamber should stop judging and that the PiS authorities should pass new laws on the disciplinary system for judges. They said the people in the Disciplinary Chamber are not judges, just like the neo-judges in the Supreme Court. While the decisions they issue are not judgments. That the judges suspended by the Chamber, Igor Tuleya and Paweł Juszczyszyn, should now return to work.

What the National Prosecutor’s Office can press charges for

Does the National Prosecutor’s Office now want to press charges for questioning the legality of the Disciplinary Chamber and neo-judges in the Supreme Court, whose status was contested in the CJEU’s and ECtHR’s judgments?

It seems more likely that the National Prosecutor’s Office may want to press charges for Judges Czajka and Markiewicz saying in an OKO.press article that criminal and disciplinary charges could be raised in the future against the people responsible for failing to implement these rulings.

In response to OKO.press’s question ‘Who will face criminal liability for failing to implement the CJEU ruling?’, Professor Krystian Markiewicz answered: ‘Court presidents will face criminal charges in the future for failing to implement CJEU rulings under Article 231 of the Penal Code [he was referring to the failure to perform official duties – ed.]. This will also constitute grounds for applying disciplinary proceedings. This applies to the court presidents who are refusing to reinstate Judges Tuleya and Juszczyszyn, who have been suspended until now.

The First President of the Supreme Court, Małgorzata Manowska, and the President of the Disciplinary Chamber, Tomasz Przesławski, will also be subject to such liability if they do not suspend the activities of the Disciplinary Chamber and some of the activities of the Chamber of Control. In my opinion, people who are members of disciplinary courts of the first instance [at the courts of appeal – ed.] are also exposed to liability if they continue to pursue defectively initiated proceedings. The CJEU ruling is also to be respected by the prosecutor’s office.’

In response to the question about liability, Judge Maciej Czajka replied: ‘No doubt, anyone who makes administrative decisions, namely court presidents, for instance on not reinstating judges, are exposed to such liability. In addition, it is possible that they may be exposed to disciplinary liability.

We have written more than once in OKO.press that Małgorzata Manowska is allowing the Disciplinary Chamber to suspend more judges, which is a breach of the CJEU interim measures.

What charges will Judges Czajka and Markiewicz face

If the National Prosecutor’s Office now wants to press charges for the statements made to OKO.press, there are three possible qualifications under the Penal Code in:

– Article 190, paragraph 1 of the Penal Code, which states: ‘Whoever threatens another person with the commitment of a crime to his detriment or to the detriment of a close person, if the threat incites a justified concern in the threatened person that it will be fulfilled, shall be punishable with a fine, the penalty of a restriction of freedom or the penalty of imprisonment for up to 2 years.’ Prosecution for such an act takes place on the motion of the victim. Therefore, in this case, this would need to be reported by the people referred to, for instance by Judge Markiewicz.

– Article 191, paragraph 1, which states: ‘Whoever uses violence against a person or an unlawful threat in order to force another person to perform a specific action, make an omission or bear an endurance, shall be punishable with a penalty of imprisonment for up to 3 years.’ Prosecution here takes place ex officio, which means that the public prosecutor’s office can initiate the proceedings itself.

– Article 224, paragraph 1, which states ‘Whoever uses violence or an unlawful threat to exert influence on official activities of a body of government administration, another state body or a local government authority, shall be subject to the penalty of imprisonment for up to 3 years.’ While paragraph 2 states: ‘Anyone who uses violence or an unlawful threat to force a public official or a person selected to assist him to undertake or discontinue a legal official act shall be subject to the same punishment.’ These acts are prosecuted ex officio.

‘If I were Ziobro’s prosecutor I would want to press charges under Article 224. I would qualify this as threatening court presidents with criminal liability to force them to stop performing their official duties and overstep their rights, for instance by suspending the Disciplinary Chamber or reinstating judges Igor Tuleya and Paweł Juszczyszyn,’ a well-known Warsaw lawyer says.

Judge Piotr Gąciarek of the Warsaw section of Iustitia, who is known for defending the free courts, says that Judges Czajka and Markiewicz did not break the law with their statements to OKO.press. ‘They expressed their opinions about the consequences of the CJEU rulings. As members of the associations, they were discussing the legal situation that has emerged after these rulings. They pointed out that the Chamber has been operating illegally since 15 July, as it cannot be considered a court in the meaning of Polish and European law,’ Piotr Gąciarek tells us.

He adds: ‘They also spoke about the legal consequences that court presidents will face if they refuse to allow the judges suspended by the Disciplinary Chamber back to work. In no way did these statements breach the law. This is because they were demanding the restoration of a lawful situation.’

And another of Gąciarek’s statements to OKO.press: ‘When speaking about the criminal and disciplinary liability of certain people, their objective was to protect the breached law, while, according to Article 115, paragraph 12 of the Penal Code, such a statement does not constitute an unlawful threat.’

How Ziobro’s men have tried to get to Markiewicz so far

The activities of the National Prosecutor’s Office, whose target is the president of the largest association of judges, Iustitia, Professor Krystian Markiewicz, who is also a judge of the Regional Court in Katowice, are not accidental. Under Markiewicz’s leadership, Iustitia has become the most important and vibrant centre defending the rule of law and the free courts.

The smaller association of judges, Themis, to which Judge Maciej Czajka belongs, performs a similar role. Both associations are also harsh reviewers of the ‘reforms’ of Minister of Justice Zbigniew Ziobro, who combines this function with that of Prosecutor General.

Iustitia and Themis have also consolidated independent judges in defence of the free courts and provide support for repressed judges. Their voice – particularly that of Iustitia – is also heard in the European Union. This makes the PiS authority uneasy. That is why it is pushing for a final crackdown on the courts – liquidating them and setting up new courts which will be dependent on the authorities – because this will allow them to get rid of unruly judges in one foul swoop.

This is why Judge Krystian Markiewicz is a public enemy number 1 for these authorities. This is why he has already been attacked before. The judge has already experienced disciplinary action for his activity in defence of the rule of law.

He was also the target of a mass attack within the hate scandal. They wanted to discredit him with alleged revelations from his private life. Just to reiterate. Onet revealed in 2019 that the hater, ‘Mala Emi’, was supposed to have agreed with the group of judges who decided to cooperate with Ziobro’s ministry to conduct a hate campaign against independent judges. The name Łukasz Piebiak, who later had to leave the Ministry of Justice, was mentioned in the context of this scandal.

Judge Maciej Czajka of the Regional Court in Kraków, a member of the Themis association of judges, is also involved in the defence of the free courts. This association mainly consists of judges from Kraków, who are known for their defence of the rule of law. Maciej Czajka has so far been subjected to administrative repression.

He was transferred from the criminal division to the civil division in 2021 as punishment for announcing, together with a group of Kraków judges, that he did not want to adjudicate with neo-judges. Court President Dagmara Pawełczyk-Woicka, a nominee of Ziobro’s ministry did this. The court president later withdrew from this decision.

The Kraków judges do not want to adjudicate with neo-judges because they are implementing the judgments of the ECtHR and CJEU, which contested the legality of the new NCJ which gives nominations to neo-judges.

How judges are silenced by repression

Attempts are being made to silence judges defending the rule of law and the free courts, who are repressed in several ways. This is done by judges who decided to cooperate with Ziobro’s ministry and prosecutors subordinated to Ziobro.

Judges are most frequently subjected to instant disciplinary action for critical statements in the media, judgments that the authorities do not like, the implementation of the CJEU’s and ECtHR’s judgments, or for meetings with citizens. Between 150 and 200 independent judges have already experienced disciplinary action. This is done by the Minister Ziobro’s disciplinary commissioners. Namely, Chief Commissioner Piotr Schab and his two deputies Przemysław Radzik and Michał Lasota.

Unruly judges are also attacked with unreliable and absurd criminal charges. The internal affairs department of the National Prosecutor’s Office wants to file them. This is this department that wants to charge Judge Igor Tuleya for allowing journalists into the courtroom to hear the passage of a ruling that was critical of the PiS party. Tuleya is one of the symbols of the free courts, because he is not afraid of criticizing the ‘reforms’ of Minister Ziobro and his people.

The National Prosecutor’s Office is also after Judge Beata Morawiec of the Regional Court in Kraków, against whom it wants to press stretched and unbelievable charges, which even the illegal Disciplinary Chamber refused to believe by refusing to lift her immunity. What is important in this case, however, is that she is the president of the Themis association of judges. In other words, she has a similar role in the community of independent judges to that of Professor Krystian Markiewicz. Furthermore, Morawiec won a lawsuit with the minister of justice, who has to apologize to her for the defamatory statement made by his ministry.

The National Prosecutor’s Office also wants to pursue Judge Waldemar Żurek of the Regional Court in Kraków. Like Tuleya, he is one of the symbols of the free courts. Żurek was the first in Poland to start defending the free courts while he was still a press officer of the old legal NCJ. He is experiencing as many as 16 disciplinary cases for this.

Meanwhile, the National Prosecutor’s Office is trying to press an absurd charge against him for an accident at work. A floor-cleaning machine drove into the judge in the court and he suffered a knee injury. Now, in the case in which he is the victim, the National Prosecutor’s Office is handling proceedings based on the assumption that Żurek wanted to extort compensation. Because the court authorities under Minister Ziobro do not want to acknowledge that the collision with the machine was an accident at work.

Independent judges are also attacked with administrative repression. They are transferred on disciplinary charges – without their consent – to other divisions. Such decisions are made by court presidents nominated by Minister Ziobro. This happened to Judge Waldemar Żurek and Łukasz Biliński from Warsaw, who acquitted the street opposition. Such repression was applied to judges in 2021 when they implemented the CJEU’s and the ECtHR’s judgments. The judges criminally transferred for this were Piotr Gąciarek from Warsaw, Agnieszka Niklas-Bibik from Słupsk and four judges from Kraków, Beata Morawiec, Maciej Czajka, Wojciech Maczuga and Katarzyna Wierzbicka.

And one more rapid measure of repression. The Disciplinary Chamber indefinitely suspends judges with respect to whom it handles disciplinary or criminal cases. It also reduces their salaries. Such repression befalls judges for applying of EU law and for their judicial activity. The Chamber has so far suspended six judges, including four in breach of the CJEU measures.

These are: Igor Tuleya, Paweł Juszczyszyn, Piotr Gąciarek, Maciej Ferek, Maciej Rutkiewicz and Krzysztof Chmielewski. Three more judges are also facing suspension: Agnieszka Niklas-Bibik, Marta Pilśnik and Adam Synakiewicz.