PiS will not remove Judge Raczkowski in silence. An application will be filed with the European Commission and the ECtHR.
MPs from the ruling coalition have enacted a special provision intended to remove one judge from the profession. This applies to the former deputy head of the legal NCJ, Piotr Raczkowski. The community of judges announces his defence, because the provision is in breach of the Constitution and European law
This special regulation is Lex Raczkowski, which the United Right MPs finally enacted on Friday, 28 July 2023. The provision is a so-called legislative insert, which the ministry of justice plugged into an amendment to the civil law on inheritances in breach of the procedures. The provision breaches one of the principles of a democratic state, namely the irremovability of judges. This is stipulated in Article 180 of the Constitution.
Meanwhile, Ziobro’s ministry wants to forcefully push Judge Piotr Raczkowski into early retirement. The authorities consider him to be inconvenient. Because when he was deputy-chair of the old, legal NCJ, he was defending the rule of law and criticising the seizure of control over the courts by the authorities. And, since then, the authorities have been doing everything to get rid of him.
That is why they have now enacted Lex Raczkowski. They did so despite legal opinions stating that this provision breaches the Constitution. This is why the Senate removed the provision from the amendment to the civil law. But the MPs from the ruling coalition rejected the Senate’s amendments on 28 July. Now, Lex Raczkowski is just waiting for the president’s signature, and it cannot be ruled out that Andrzej Duda will sign it.
Judge Piotr Raczkowski is announcing that he will defend himself. He will file an application with the ECtHR. He also has the support of the legal community. He has received a great deal of verbal support. The Justice Defence Committee will hold a conference on his unlawful removal from the profession at 11 am on Monday, 31 July 2023, in front of the Supreme Court building.
Attorney Michał Wawrykiewicz of the Justice Defence Committee is also informing us that a complaint will be filed with the European Commission. Various organisations of judges are also planning to intervene in Brussels. Because this is a dangerous precedent.
PiS already once wanted to forcibly remove older Supreme Court judges in 2018, forcing them to take early retirement. It then withdrew from this as a result of public protests. Meanwhile, the CJEU ruled that this is in conflict with EU law. The party has now used the same manoeuvre to remove Judge Raczkowski.
This is a sign to the European Commission that PiS can enact any law to remove individual judges, such as Igor Tuleya or Waldemar Żurek. And if it wins the elections, it could return to a final crackdown on the courts and throw out all independent judges. This is what Minister Ziobro and Chairman Jarosław Kaczyński, who is treating the courts as the last barricade to overcome, have long been announcing. Lex Raczkowski is proof to Brussels that there will be no concessions in the courts.
How Judge Raczkowski fell foul of the authorities and how he was suspended for six years
Piotr Raczkowski is a judge of the Military Regional Court in Warsaw. When PiS won the elections in 2015 and assumed power, Raczkowski was the deputy chair of the old, legal NCJ. He then took up a defence of the independence of the courts on behalf of the NCJ. He signed various letters and appeared at press conferences. He co-organised the Extraordinary Congress of Judges, at which the judges promised to defend the rule of law.
Raczkowski was also defending Judge Waldemar Żurek, then press officer of the NCJ, at that time. Żurek and the NCJ were then among the first in Poland to warn of PiS’s assault on the courts and were not afraid to criticise Minister of Justice Zbigniew Ziobro. Żurek and Raczkowski fell foul of Ziobro for that at the time. And they are both being prosecuted to this day.
First, PiS dissolved the legal NCJ during its term of office in 2017 in conflict with the Constitution and replaced it with its own neo-NCJ, which was staffed with judges elected by PiS in the Sejm. Repressions also appeared. Żurek became the most persecuted judge in Poland. He has as many as 23 disciplinary cases, the National Prosecutor’s Office has trawled through him, the CBA has been checking him. They even rummaged through his private affairs in search of dirt. But he did not break.
Raczkowski was also struck. He lost his position as president of the Military Garrison Court in Warsaw in 2017. This was a decision of the minister of national defence at that time, Antoni Macierewicz, and Deputy Minister of Justice Lukasz Piebiak. He was later recalled from adjudication on secondment at the civil Regional Court in Warsaw. The judge started to have health problems. A medical commission ruled that he was unfit for military service, but could still work as a judge.
And the judge then actually stopped ruling. He could no longer adjudicate in a military court, because Article 22 of the Act on Military Courts stipulates that only an officer can be a judge. But Raczkowski could not be dismissed from military service, because Article 35 of the same Act prevents this.
It stipulates that a military officer can only be dismissed when he ceases to be a judge. In other words, when he retires upon reaching retirement age or because of his health. Or if he himself resigns from the judicial profession. Raczkowski, however, does not satisfy the retirement criteria. He still wants to adjudicate and can work as a civilian. He is 62 years old.
The Act on Military Courts allows a judge to be transferred to an ordinary court in such cases. That is why Raczkowski requested a transfer to the Regional Court in Warsaw. The old NCJ agreed to this and, in 2017, requested President Andrzej Duda to appoint him to the office of regional court judge. But, after several years of delay, he issued a refusal in 2021. This decision has no justification.
Two attempts were made to force Raczkowski into early judicial retirement. Former Deputy Minister of Justice Łukasz Piebiak tried to do this. A second attempt was made by Minister of National Defence Mariusz Blaszczak. But they were refused this twice by the new, illegal neo-NCJ.
Two attempts were also made to break the judge with the help of the prosecutor’s office. First, Piebiak reported him for not adjudicating, but for drawing a salary. The prosecutor’s office refused to prosecute. But then it wanted to charge him because of a critical book about Antoni Macierewicz based, among other things, on the files of an old spy case from the 1990s.
Raczkowski, as president of the military court, allowed journalists to have access to the files. However, the new Chamber of Professional Liability of the Supreme Court refused to lift the judge’s immunity. We wrote about all this in OKO.press. Even so, Raczkowski did not break. In recent years, he has been supporting repressed judges. He was at pickets in defence of the free courts.
How Ziobro’s ministry and PiS want to forcibly remove a judge
It seemed that Judge Raczkowski’s problems would disappear at the beginning of 2022, when the Sejm passed the Act on the Defence of the Homeland. This was a response to the war in Ukraine. The Act contained Article 233, which allowed Raczkowski to rule in military courts as a civilian. It also allowed him to be discharged from military service.
After the turmoil in March 2023, Raczkowski again appeared in a toga in the courtroom of the Military Regional Court in Warsaw. He had been informally suspended for as long as six years! But his joy did not last long. In April 2023, the ministry of justice submitted amendments to the government’s amendment to the civil law on inheritances.
These amendments contained two articles that only apply to Judge Raczkowski. The first amends Article 233 and revokes his right to adjudicate in military courts as a civilian. The second forcibly retires him. In other words, it removes him from the judicial profession. The Sejm enacted the amendment with these amendments.
But the Senate removed the amendments in the middle of July. It arises from the opinion of the Senate’s legislative bureau that they are in conflict with the Constitution. Because they were submitted to the Sejm committee between the first and second readings of the Sejm. Or, in other words, they did not pass through the required three readings. Furthermore, the legislative bureau acknowledged that the two articles proposed by Ziobro’s ministry are in conflict, primarily with Article 180, para. 3 of the Constitution, which guarantees the irremovability of judges from office. The Article provides that a judge can be retired when he is incapable of adjudicating. Whereas Raczkowski can adjudicate.
Deputy Minister Katarzyna Frydrych was defending the amendments put forward by Ziobro’s ministry in the Senate. She said they were necessary because Article 233 of the Act on the Defence of the Homeland, which was passed just a year ago, is in conflict with Article 22 of the Act on Military Courts (it stated that only an officer can be a judge). And the Sejm rejected the Senate’s amendments on Friday, 28 July 2023.
Raczkowski: I will defend myself
Judge Raczkowski announces that he will defend himself. He tells OKO.press: ‘I waited six years for the opportunity to adjudicate. I recently returned to the courtroom. And now the Sejm has deprived me of this right in breach of the Constitution. I shall wait for the President’s signature and the promulgation of the Act in the Journal of Laws. I shall take advice from my lawyers and will certainly file an application with the ECtHR. I have the support of the judicial community.’
He adds: ‘If it was accepted that Article 22 is in conflict with the Act on the Defence of the Homeland, it would have been enough to amend that Article to allow civilians to adjudicate in military courts. But the ministry of justice had a negative attitude towards me.’
The capital’s branch of Iustitia has already taken up a defence of the judge. Its management board wrote in a position paper that it ‘expresses its adamant objection to the statutory lawlessness targeted groundlessly at Judge Piotr Raczkowski.’
And continues: ‘By his attitude, Judge Raczkowski has exposed himself to politicians intending to politically subjugate the judiciary step by step. By obstructing the judge’s return to adjudication in every possible way, the ruling politicians have recently gone so far as to pass a law, the sole addressee of which will be Judge Piotr Raczkowski. This is how the authorities intend to forcibly retire the judge.’
The Justice Defence Committee is also defending the judge. It wrote in its Facebook profile: ‘Minister Ziobro blacklisted Judge Raczkowski, a long-time military court judge, seven years ago, when, as a member of the National Council of the Judiciary, he was not afraid to openly criticise the unlawful actions of the authorities. He has become one of the most repressed judges in Poland since then.’
And continues: ‘Now the authorities have decided to get rid of the inconvenient judge once and for all (…). The repression of independent judges has become a permanent feature of Polish realities in recent years, but, together with this project, targeting one judge, the vindictiveness and pettiness of the ruling party has crossed a further threshold.’
Wawrykiewicz: the Constitution and European law were breached
Attorney Michał Wawrykiewicz, who is associated with the Justice Defence Committee and the Free Courts is also defending Raczkowski. Wawrykiewicz was one of Raczkowski’s defence attorneys in the case about lifting his immunity in connection with the book about Macierewicz.
The attorney tells OKO.press: ‘After eight years, we have already become accustomed to completely unbelievable violations of the constitutional order, to the smear campaigns and slandering of independent judges. To the oppression of people, to trawling and finding dirt, namely methods directly implemented from the autocratic satrapies. But to specially pass an Act to remove a single judge who got under the skin of the authorities? This is a first.’
Wawrykiewicz emphasises: ‘This is a clear violation of Article 180 of the Constitution, which stipulates that judges are irremovable. They cannot be retired just like that, according to the will of the legislator. This can only be done if illness or loss of strength prevents the person from holding office. Or at the judge’s request. Whereas none of these circumstances exists in Judge Raczkowski’s case. He is fully capable and wants to adjudicate.’
Wawrykiewicz goes on to say: ‘But the authorities with long memories, and I presume especially Minister Ziobro and his former subordinate, Piebiak, cannot forget that the judge, as vice president of the last legal NCJ, bravely defended the principles of the rule of law and supported Waldemar Żurek, who was being repressed from the very beginning. And so that he faces punishment for that, a special Act that applies to one person was enacted on the motion of the ministry of justice. This is completely incredible.’
Attorney: ‘This is also a manifest violation of European law. Both the Treaty and the Charter of Fundamental Rights, as well as the European Convention on Human Rights. We should recall the case of the PiS authority’s attempt to remove Supreme Court judges in 2018, including the First President of the Supreme Court, Professor Małgorzata Gersdorf. At that time, the ruling party claimed it was possible to retroactively reduce the retirement age and thereby legally remove 40% of the members of the Supreme Court.
This manoeuvre was reviewed by the Court of Justice of the EU in infringement proceedings initiated by the European Commission. The CJEU first applied an interim measure on 19 October 2018, enabling the Supreme Court judges to return to adjudication and Małgorzata Gersdorf to hold her office to the end of her term. Next, in 2019, a judgment which clearly confirmed that this type of statutory attempt to remove judges, which was essentially politically motivated, is a violation of EU standards.’
Wawrykiewicz reiterates: ‘The principle of effective judicial protection arising from Article 19 TEU, which all Member States are required to ensure, as well as the guarantee of judicial independence, clearly stand in the way of such authoritarian inclinations of the authorities. The case of A.K. [Judge Andrzej Kuba of the Supreme Administrative Court – ed.] before the CJEU, in which Counsel Sylwia Gregorczyk-Abram and I had the pleasure of representing the judges of the Supreme Court and the Supreme Administrative Court, was also pending on this basis.
The Court confirmed the above conclusions in the judgment of 19 November 2019 (C-585/18, C-624/18, C-625/18). Likewise, the Convention principle of the right to a trial by an independent and impartial court established by law (Article 6 ECHR) is a standalone basis of this protection of a judge as a state official. Therefore, I have no doubt that, if an application is filed with the ECtHR, as Judge Raczkowski is announcing, the government in Warsaw will lose miserably.’
The CJEU stated how the rule of law is to be defended
Just to reiterate. The CJEU’s ruling of November 2019 was a precedent. This was the first time that the Court stated how the legality of the neo-NCJ, neo-judges and the Disciplinary Chamber should be assessed. It was on this basis that the Supreme Court issued a ruling in December 2019 in which it contested the legality of the neo-NCJ and the Disciplinary Chamber.
And then the full bench of the Supreme Court issued its historic resolution confirming this in January 2020. Judges are experiencing reprisals for implementing this ruling of the CJEU, including Judge Paweł Juszczyszyn of Olsztyn, who was the first in Poland to implement it. Now, a member of the illegal neo-NCJ and president of the District Court in Olsztyn is doing everything possible to remove him from the profession.
Translated by Roman Wojtasz