12 judges from Regional Court in Kraków have encountered reprisals. They issued statements that they are refusing to hear cases in benches with judges nominated or promoted by the new National Council of the Judiciary (NCJ).

Judge Waldemar Żurek, one of the symbols of the independent courts, was the first to issue such a statement. He has now been joined by 11 more judges who jointly signed a letter addressed to the president of the Kraków court.

Dagmara Pawełczyk-Woicka, a nominee of Minister Ziobro and a member of the new NCJ, reacted angrily to the statement. She issued a statement on Thursday, 23 September. She wrote in it that disciplinary proceedings should be conducted with respect to these judges. Pawełczyk-Woicka believes they are refusing with impunity to adjudicate with neo-judges and want to decide who can be a judge in Poland. That is why she filed a request with Minister Ziobro’s chief disciplinary commissioner to initiate an investigation against them, which could end in disciplinary charges. She simultaneously decided to exclude these 12 judges from draws for multi-member benches. This is so that they will not be able to challenge the status of judges nominated or promoted by the new NCJ if they end up on a bench with them.

This is not the end of the reprisals. Proceedings have also been initiated with respect to one of the judges who signed the statement to transfer her to another division for disciplinary reasons. ‘There are rumours that this is just the beginning. That there is to be a stronger attack, a kind of showdown to intimidate other judges. But it could be just scaremongering,’ a person familiar with the workings of the Krakow court tells us.

Who signed the statement of the Kraków judges

The statement regarding the refusal to adjudicate with the judges promoted by the new NCJ was signed by 11 judges of the Kraków regional court. These are: – Edyta Barańska, – Maciej Czajka, – Grzegorz Dryga, – Maciej Ferek, – Jarosław Gaberle, – Janusz Kawałek, – Joanna Makarska, – Dariusz Mazur, – Beata Morawiec, – Ewa Szymańska, – Katarzyna Wierzbicka. They implemented the judgments of the CJEU from the middle of July 2021 and the judgment of the ECtHR – also from July 2021 – in which the legality of the Disciplinary Chamber, as well as the new NCJ and the judicial nominations issued by it was contested. The new NCJ has already promoted almost a thousand judges.

Polish judges started implementing these judgments immediately. The first was Adam Synakiewicz from Częstochowa. He was then joined by: – Marta Pilśnik from Warsaw, – Jacek Tyszka from Warsaw, – Piotr Gąciarek from Warsaw, – three judges from the Criminal Chamber of the Supreme Court, – Waldemar Żurek from Kraków. Some of them have already encountered serious reprisals – Gąciarek, Pilśnik and Synakiewicz have been suspended from their duties.

Additionally, Synakiewicz received as many as seven disciplinary charges for applying EU law. However, the reprisals are illegal, because the CJEU has suspended the provisions of the Muzzle Act allowing Polish judges to be punished for examining the status of other judges.

Why Kraków judges do not want to adjudicate with neo-judges

However, the judges were not intimidated by the reprisals, and further judges are declaring that they will not adjudicate with neo-judges. The Kraków judges wrote in a statement that, whenever they are drawn into a bench with neo-judges, they will demand:

• The membership of the bench to be re-drawn without neo-judges.
• And if their motion is not accepted, they will inform the litigants that the case needs to be suspended because of the incorrect staffing of the bench. And they will suspend such cases or file dissenting opinions to judgments issued with the involvement of neo-judges. Because such a judgment will breach a citizen’s right to an impartial and independent court.

The Kraków judges explain that the neo-judges were appointed by the new NCJ, which was not only was itself defectively appointed – its membership is in conflict with the Constitution and not all members of the NCJ had the required signatures of support – but is not independent of politicians. Because most of the judge-members of the NCJ cooperated or still cooperate with the Minister of Justice Zbigniew Ziobro’s ministry.

This is confirmed by the judgments of the CJEU and ECtHR, as well as by the historic resolution of the full membership of the Supreme Court in January 2020. And as this is the case, the NCJ cannot make effective nominations of judges and does not guarantee that they will be independent. In a letter to the court president, the judges in Kraków emphasize that judgments issued with the involvement of neo-judges may be overturned.

Judge: we cannot be excluded from the draw 

The Kraków judges announce that more judges will refuse to adjudicate with neo-judges. ‘We need to give the citizens a clear sign that the reason for what we are doing is the concern that the judgment issued should be correct,’ Judge Maciej Czajka of the Regional Court in Kraków, who signed the letter to the court president, tells us.

He adds: ‘We also want to give our support to the judges who have been suspended for this. We want to show that there are more judges applying European laws and judgments. And there will be increasingly more of us. This is also a sign for the authorities that they will not manage to suspend all of us and transfer us to other divisions. Because the law stands behind us.’

Judge Czajka emphasizes that they will not be leaving the judicial table because the neo-judges should be leaving it.

Judge Dariusz Mazur, press officer of the Themis association of judges, who also signed the statement, also believes this. ‘We shall take all measures not to give the field up to them [the neo-judges – ed.]. We are not refusing to adjudicate, so we cannot be charged with anything. We are only declaring that we will take legal measures to eliminate the defective staffing of the bench,’ Judge Dariusz Mazur tells us.

The judge also emphasizes that Court President Dagmara Pawełczyk-Woicka’s decision to exclude them from the draw for large memberships of benches is illegal. ‘It is illegal because it affects the staffing of the courts. It is a procedure of manually controlling and influencing the membership of benches, which is alien to the Act on the structure of ordinary courts. Excluding us from the draw will create doubts as to whether the benches chosen in this way are correct,’ Judge Dariusz Mazur considers.

Disciplinary transfer of a judge for refusing to adjudicate with a neo-judge

Other than exclusion from the draw, one judge who signed the statement has already experienced official harassment. This is Judge Katarzyna Wierzbicka. Several days ago, she was assigned to a bench as a substitute judge. However, it transpired that neo-judge Piotr Kowalski, who is simultaneously the vice-president of the Regional Court in Kraków, nominated by Ziobro’s ministry, was a part of the bench. Judge Wierzbicka refused to adjudicate with him and submitted a declaration to the head of her division.

The Vice-President Kowalski and Second Vice-President Mieczysław Potejko then asked the Chairperson of the 6th Criminal Division to prepare a job specification for Judge Wierzbicka. The 6th division is the division where trials are conducted from the beginning. So this is a first-instance division. The judges generally adjudicate there on their own. However, Judge Wierzbicka adjudicates in the 4th criminal division, which examines appeals against district court judgments. Moving her to another division without her consent is therefore a punishment for refusing to rule with a neo-judge and simultaneously the vice-president of the court.

Judges from Warsaw and Rzeszów are questioning the neo-judges 

Despite the rapid reprisal, further judges are implementing the July rulings of the CJEU and ECtHR and are questioning the staffing of benches with neo-judges. It arises from our information that the Court of Appeal in Rzeszow suspended the examination of an appeal against a judgment issued by a neo-judge, pending a further judgment from the CJEU.

Meanwhile, three judges of the Court of Appeal in Warsaw issued similar statements to those of the Kraków judges. They are: – Marzanna Piekarska-Drążek, – Ewa Leszczyńska-Furtak, – Ewa Gregajtys. In their statement to the President of the Court of Appeal in Warsaw, the judges wrote that they would apply the July judgments of the CJEU and ECtHR.

Therefore, they want the president of the court to exclude them from the draw for three- and five-judge benches with the involvement of neo-judges. They also want the benches already appointed to be changed because they will not adjudicate with neo-judges. Such neo-judges in this court include chief disciplinary commissioner, Piotr Schab and his deputy, Przemysław Radzik. Together, they prosecute independent judges for just about anything.

The judges also wrote in a letter to the president of the court that the participation of a neo-judge contributes to the defectiveness of the bench and constitutes absolute grounds for an appeal. Therefore, this can result in the judgment being overturned.

The article was posted in Polish at OKO.press, 23 September 2021.

Translated by Roman Wojtasz