On Thursday, October 3, 2024, at 1:00 PM, Judge Magdalena Niemiec from the Katowice-West District Court will appear before the District Court for Warsaw-Central. She will summon the State Treasury, represented by the Chancellery of the Prime Minister, to reach a settlement.

Judge Niemiec is calling for this settlement because she wants the government to take urgent legislative action to resolve certain pressing issues, including the operation of the illegal neo-National Council of the Judiciary (neo-KRS) and the restitution of income lost by judges as a result of salary cuts imposed by the Law and Justice (PiS) government. Should no settlement be reached — which is highly probable, given that the Prime Minister’s Office has so far declined — the next step will be for Judge Niemiec to file a lawsuit to protect her personal rights.

This lawsuit would set a precedent. Judge Niemiec aims to demonstrate that the government’s failure to pass appropriate legislation violates her personal rights, including the dignity of the office of a judge, her dignity as a court employee, and her professional reputation.

In calling for a settlement with the State Treasury and the Chancellery of the Prime Minister, the judge is requesting legislative action in three key areas. Her primary demand is for the government, under Prime Minister Donald Tusk, to restore the salaries of judges, which were reduced by the PiS government during the COVID-19 pandemic. In 2021, under the pretext of austerity measures, judicial salaries were frozen, despite statutory provisions for annual adjustments.

In the following two years, judicial salaries were adjusted, but under less favorable terms than had been applied previously. According to Article 91 of the Act on the Common Courts System, judicial salaries are to be based on the average national wage for the second quarter of the previous year, as announced by the President of the Central Statistical Office.

However, in 2021, judicial (and prosecutorial) salaries were frozen at their 2020 levels, and in 2022, they were adjusted using the second quarter index from 2020, rather than the previous year as required by law. In 2023, judges again received a lower adjustment than what the law stipulates.

Toward the end of the PiS government’s term, judges were awarded back pay for 2023, but without interest. They have not yet received compensation for 2021 and 2022, and no plans for such compensation are included in the 2025 budget. Prosecutors and court clerks were similarly affected by pay reductions during the pandemic.

All of these individuals are now being forced to file lawsuits against their respective courts to recover lost wages, incurring legal fees and the costs of hiring attorneys. However, court rulings have thus far been in their favor. Judge Niemiec herself has filed such a lawsuit.

Why Doesn’t the Tusk Government Want to Resolve the Issue?

The reason is cost. Restoring pay for several thousand judges and prosecutors is estimated to cost the state budget 663 million PLN, the amount PiS saved by freezing salary increases in 2021 and 2022.

Judges lost between 20,000 and 40,000 PLN, depending on their tenure and level of advancement. Judge Niemiec herself lost 21,000 PLN.

The Neo-National Council of the Judiciary (neo-KRS) Issue

The second issue Judge Niemiec is calling to be addressed is the continued operation of the illegal neo-KRS, which remains active and continues to grant flawed appointments to neo-judges.

The judge emphasizes that the neo-KRS is blocking promotions for independent judges. In 2024, Minister of Justice Adam Bodnar proposed legislation to dissolve the neo-KRS and establish a new, independent National Council of the Judiciary. Parliament passed the bill, but the president did not sign it, instead referring it to the Constitutional Tribunal.

The ruling coalition, however, could terminate the neo-KRS’s activities by dismissing the 15 judge-members appointed by PiS in violation of the Constitution. The legality of the neo-KRS has been challenged in numerous rulings by both Polish courts and European tribunals.

The Independence Test for Judges

The third issue Judge Niemiec is asking the Prime Minister’s Chancellery to address concerns judicial independence tests. These tests were introduced through a 2022 presidential amendment to the Act on the Common Courts System, specifically under Article 42a. This was one of the conditions for unlocking funds from the European Commission’s Recovery and Resilience Facility (RRF).

However, the presidential test includes restrictions and has barely been applied in practice. Judges instead use the test established by the European Court of Human Rights (ECHR) in its ruling regarding Iceland and apply it to neo-judges, as they were appointed by an illegal body. For their efforts to test the independence of neo-judges, judges under the PiS government faced disciplinary action.

Judge Niemiec believes that the presidential test undermines her professional reputation, as she is a legitimate judge who must explain her status to parties in legal proceedings. She is therefore seeking the removal of the provision from the Act on the Common Courts System.

Her precedent-setting personal rights lawsuit has not yet been filed. Judge Niemiec will proceed with it if no representative from the Prime Minister’s Office appears at the settlement hearing, or if the Office refuses to reach a settlement, which is the most likely outcome. The judge is represented in this matter by attorney Lidia Bucka.

Judge Niemiec: “It is Humiliating that I Have to Sue My Own Court for My Rightful Pay”

In an interview with OKO.press, Judge Magdalena Niemiec explained her decision to take legal action against the government. She also elaborated on how the continued operation of the neo-KRS and the failure to restore her salary for 2021-2022 violate her personal rights.

“I expected the salary issue to be resolved systematically after the change of government. Our salaries were reduced in violation of the Constitution. This could easily and quickly be rectified with a budget-related law that would provide a one-time payment to judges, prosecutors, and clerks. But this has not been done,” she said.

She added, “We are being forced to file lawsuits against our own courts as employers. I’ve filed such a lawsuit myself. But this is an artificial dispute. There are already rulings that the salary adjustment is due to us and that the freezing of raises is unconstitutional.”

Judge Niemiec stressed, “Forcing us to sue for our own salaries undermines the dignity of the judicial office and humiliates me. We are being disregarded. Instead of dealing with the cases of citizens in difficult situations, new cases have been created for the courts that should not exist.”

She also noted, “This situation also affects tax administration employees who were denied severance payments following a reform of that service. They are winning their cases in court, and yet the issue remains unresolved. Several Supreme Court rulings have been issued, but the government continues to count on some people not going to court, or that their claims will become time-barred, leading to savings.”

Judge Niemiec explained, “In my court section, I have 255 employee-related cases. Without the salary disputes involving judges, prosecutors, tax officials, prison service workers, or miners, I would have about 80 cases.”

She added, “Interestingly, court presidents are also filing lawsuits for salary restitution, arguing that the pay freeze was unconstitutional. However, as employers, they defend the pay freeze as lawful in their responses to the lawsuits of other judges. The prosecutorial leadership behaves similarly.”

Why Seek the Dissolution of the Neo-KRS and the Presidential Test?

Judge Niemiec answered, “Because the neo-KRS continues to operate, I did not seek promotion to a higher court. I did not want to become a neo-judge or participate in an illegal process. However, this undermines my right to professional development and my reputation. External observers may view me as a weak judge because I did not advance.”

This article by Mariusz Jałoszewski was published in OKO.press on October 2, 2024.