The article was first published in Polish in Gazeta Wyborcza on December 2, 2022.

by Jarosław Sidorowicz

‘This is an unbelievable matter, blatant influence with the decisions of an independent court. I cannot believe something like this has happened here,’ said a Kraków judge requesting anonymity.

As ‘Wyborcza’ found out, Judge Elżbieta Jabłońska-Malik – the presiding judge of the appeal division in the Regional Court in Kraków – was first to apply pressure to two judges to withdraw the motion to impose a fine on Judge Dagmara Pawełczyk-Woicka. She is Minister of Justice Zbigniew Ziobro’s schoolmate and head of the politicised National Council of the Judiciary.

Then, suddenly, two judges on the bench were replaced and the new judges – who are associated with Ziobro’s ministry – decided to revoke Pawełczyk-Woicka’s penalty.  Wojciech Maczuga, who had previously imposed a PLN 3,000 fine on the head of the neo-NCJ, was the judge rapporteur in this case.

This was a fine for refusing four times to release documents that were needed for the test of independence of Judge Karolina Miklaszewska, whose career had progressed rapidly under the Law and Justice (PiS) government. She was also the presiding judge in the Wadowice court which was dealing with a case of harassment.

After the verdict, the case went to the appeal division of the Regional Court in Kraków. The appeal was handled by a three-person panel: Judge Rafał Lisak as the presiding judge, Judge Małgorzata Fronc and precisely Judge Maczuga as the rapporteur.

Judge Maczuga: The judges were being pressured

Judge Maczuga: ‘Judge Rafał Lisak called me on 24 November. He said there was a problem with my decision to impose a fine [on Pawełczyk-Woicka], there was an argument about this and that the head of the appeals division, Judge Elżbieta Jabłońska-Malik, had come to see him about it.

She told him she had not sent this decision out and that he should issue an order not to send this decision and not to execute it. From what he said, it transpired that he told her that the decision had been made, was enforceable and that he would not issue such an order. He was then told that this could be taken to the hearing on 25 November, I could be outvoted, that these documents are unnecessary, the fine could be revoked and the trial could end without the documents being pulled from the neo-NCJ. Judge Lisak was shocked that someone could come to him and say something like that. And that it would be best if the trial were not held on 25 November. I replied that I did not know why it should not take place and that I would do nothing of the kind. I heard that we need to think about it.’

Judge Maczuga says that, later that same day, he went to Judge Lisak, who repeated what he had said earlier.

He added that, on that same day, he also had a phone call from the other judge from the bench, Małgorzata Fronc. ‘She was shouting that there was pressure in the case, that she had already stopped taking phone calls from the head of department and that it would be best if the case did not take place. She argued that perhaps the test should be dropped. I said the test should be performed, she said she would think about what to do next.’

Judges take leave on demand

In the morning of 25 November, just before the hearing, Judge Maczuga first received a text message from Judge Fronc stating that she was taking leave on demand. A short while later, he received the same information from Judge Lisak.

Later that day, two on-call judges joined the bench in their place: Jędrzej Dessoulavy-Śliwiński and Sebastian Mazurek. They outvoted Judge Maczuga and decided to close the harassment trial without conducting the test of Judge Miklaszewska and waiting for the documents from the neo-NCJ. Judge Maczuga’s objections were not put on record. 

The verdict on harassment was passed last Wednesday. Maczuga still applied for a re-trial, unsuccessfully. He therefore filed a dissenting opinion.

Immediately after the verdict, Judge Dessoulavy-Śliwiński put the cancellation of the fine imposed on Pawelczyk-Woicka to a vote. ‘According to the court, this activity has become unnecessary as judgment has been passed,’ said Dessoulavy-Śliwiński. And both he and Mazurek voted to cancel the fine.

Judge Maczuga again filed a dissenting opinion. Meanwhile, on Thursday, he reported the suspicion of a crime having been committed of the unlawful influencing of a court decision to the president of the Regional Court in Kraków.

Judge Jabłońska-Malik: I do not interfere with judgments

The head of the Appeals Division, Elżbieta Jabłońska-Malik, refused to talk to ‘Wyborcza’. ‘I do not interfere with the judgments of the judges in my division,’ she said, hanging up the phone.

Judge Lisak denies that there had been pressure: ‘I did not feel anything like that in such terms. This decision was commented on, but only that such a decision had been made.’

‘And who commented?’ we ask.

‘It was talked about, I don’t remember. It was talked about in the division, because this was the first time such a decision had been made in our division,’ replies Judge Lisak.

‘Was it a coincidence that you and Judge Fronc took leave on demand on the same day?’ we ask.

Lisak: ‘It’s difficult for me to comment on that, I had health-related duties. I’m not in a position to state whether it was a coincidence or not. I can only speak for myself.’

We were unable to contact Judge Fronc.

Doubts about Judge Miklaszewska’s impartiality

Judge Maczuga wanted to conduct a test of Judge Miklaszewska’s independence, because at the time of PiS rule – after a short period as a clerk (she refused to become an assessor) – she ran for the position of a judge and, despite the poor result at the College of the Regional Court, she received a nomination from the neo-NCJ. She was already president of the District Court in Wadowice after two years.

Given the rulings of the European tribunals on neo-judges appointed with the involvement of the politicised NCJ and the course of her career, Maczuga became doubtful that, as a judge, Miklaszewska was independent and impartial. He referred to the resolution of the three chambers of the Supreme Court and requested the authorities of the Regional Court in Kraków to provide the judge’s personnel file and the neo-NCJ to provide the documents related to her nomination.

Judge Maczuga had already, in another case, raised doubts as to whether, an assessor appointed by the neo-NCJ could have ruled at all, for which he was being investigated by the disciplinary commissioner of judges, Piotr Schab.

Pawełczyk-Woicka refused to send Miklaszewska’s documents. She had previously entered into a fierce dispute with the Kraków judges questioning the changes to the judiciary introduced by PiS. She suspended or transferred anyone who refused to recognise the judgments passed by judges appointed with the involvement of the neo-NCJ, to other departments. And one of her first decisions was to dismiss Judge Waldemar Żurek, a judge known for defending the rule of law, from his position as spokesperson for the Regional Court in Kraków.

Judges on secondment from Ziobro

In turn, Judge Dessoulavy-Śliwiński received his nomination as a regional court judge in October 2021. In one case – while assessing a defence counsel’s motion to remove a judge seconded on the basis of a decision of the Minister of Justice (the EU Court of Justice has questioned such secondments, indicating that judges can be dependent on Zbigniew Ziobro in this way) – he wrote in the justification: ‘The case law of the CJEU directly regarding that body’s assessments of the organisation of the judiciary in a Member State of the European Union is of no significance to the assessment of the guarantees of the independence of judges and the independence of judges. The CJEU does not have the competence to speak up in a binding manner on this. (…) A national court of a sovereign state, as is currently the Republic of Poland, should disregard such views as being harmful to the legal order.’

During Pawełczyk-Woicka’s presidency, Dessoulavy-Śliwiński also became deputy disciplinary commissioner for the Kraków judges.  He also signed Pawełczyk-Woicka’s list of support when she was standing for a second term of office in the neo-NCJ this year.

A Kraków judge requesting anonymity: ‘Dessoulavy-Śliwiński previously had nothing to do with Kraków; he was a judge from Bydgoszcz and had previously applied several times for a nomination to the office of regional court judge. He worked at the Ministry of Justice, where he met Dariusz Pawłyszcze [the current director of the National School of Judiciary and Public Prosecution, privately Pawełczyk-Woicka’s partner]. Soon afterwards, he ended up in Kraków, where Dagmara Pawełczyk-Woicka was already the head of the regional court.

Judge Sebastian Mazurek is also at the Regional Court in Kraków on a ministerial secondment.

As Judge Maczuga points out, Dessoulavy-Śliwiński and Mazurek did not even have a chance to read the case files in which Miklaszewska was passing judgment. Even so, the hearing took place in the changed composition of the bench.

Translated by Roman Wojtasz