Repression against independent judges is intensifying: legal judges of the Supreme Court are to be prosecuted for their judicial activity for the first time.

Acting First President of the Supreme Court Małgorzata Manowska requested the Disciplinary Commissioner of the Supreme Court to open proceedings against three judges who want to examine the legality of the appointment of a neo-judge by the new, politicised National Council for Judiciary (neo-NCJ).

The proceedings are to apply to judges of the old, legal Criminal Chamber:

• Professor Włodzimierz Wróbel – who is known for defending the rule of law and the independence of the Supreme Court. He was also Manowska’s most serious contender for the position of First President of the Supreme Court; 
• Jarosław Matras – who is a defender of judges suspended by the illegal Disciplinary Chamber; 
• Małgorzata Wąsek-Wiaderek. 

According to Manowska’s request, the disciplinary commissioner is to assess the activities they have undertaken in the course of their judicial activities.

Meanwhile, the ‘guilt’ of the judges is that they want to apply the judgments of the European Court of Human Rights and the Court of Justice of the EU, as well as the historic resolution of the Supreme Court of 23 January 2020, which questioned the legality of the neo-NCJ and the judicial nominations it has given.

Judges of the ordinary courts continue to be repressed for applying EU law. Minister Zbigniew Ziobro’s disciplinary commissioner has just disciplined Judge Anna Głowacka from Kraków, who also implemented the ECtHR and CJEU judgments. The judges who are being attacked have the support of the community of independent judges. Judge Paulina Asłanowicz, whom Minister Ziobro’s disciplinary commissioner is after for protecting a sick child, has just received the support of  64 judges at the Court of Appeal in Warsaw. Judge Joanna Hetnarowicz-Sikora, who was suspended by Minister Ziobro, has also received support from judges from Słupsk.

How the judges of the Supreme Court started to examine the status of neo-judges

According to information we obtained, Małgorzata Manowska submitted her notice to the disciplinary commissioner of the Supreme Court on 7 March 2022. In it, Manowska requested the opening of an investigation against three legal judges of the Supreme Court. These proceedings can end in several ways. The commissioner can refuse to open proceedings or to open them and, after clarifying the matter, discontinue them or press disciplinary charges against the judges.

Manowska requested the opening of proceedings in connection with one of the cases being handled in the Criminal Chamber. This is a case being handled by a bench consisting of Professor Włodzimierz Wróbel, Jarosław Matras (case rapporteur) and Małgorzata Wąsek-Wiaderek. All of them are legal judges of the Supreme Court – Manowska is a neo-judge.

At the end of January 2022, this bench was handling a cassation appeal against a judgment of the Court of Appeal in Lublin regarding compensation for wrongful arrest. However, the Supreme Court did not consider the case on its merits. Because Neo-Judge Jerzy Daniluk, who is also the president of the Court of Appeal in Lublin nominated by Minister Ziobro’s ministry, took part in issuing the Lublin court’s judgment.

The Supreme Court has not yet examined the case, because it first wants to assess whether the judgment was issued by a correctly staffed bench. This is because the ECtHR, the CJEU, as well as the Supreme Court, in its historic resolution of the full court in January 2020, questioned the legality of the neo-NCJ and the nominations of neo-judges which it has given. Meanwhile, Daniluk was promoted precisely by the neo-NCJ – in October 2018.

That is why the Supreme Court bench asked for documentation related to Daniluk’s nomination. It requested it from the neo-NCJ and the president of the court, namely Daniluk himself. The Supreme Court requested the presentation of the judge’s personal files and the minutes of the meetings of the Board of the Court of Appeal in Lublin, as well as of the Assembly of Judges of the Lublin Appellate Court, which gave their opinions on Daniluk’s promotion. The Supreme Court bench wants to use them to assess whether the neo-judge satisfies the criterion of an impartial court. Radio TOK FM announced that the Supreme Court wants to examine his status.

Jerzy Daniluk is not an anonymous person. The media had already written previously that he had been transferred to the court in Siedlce, although he was still working in Lublin. But as a result, he was receiving a housing allowance. Former Deputy Minister of Justice Łukasz Piebiak was responsible for this decision. Perhaps Daniluk signed Piebiak’s list of support to the neo-NCJ for this reason.

How Daniluk reported the Supreme Court judges to Manowska

Daniluk responded to the Supreme Court’s attempt to assess the legality of his promotion with a complaint to Małgorzata Manowska. In the complaint, he fiercely attacked the adjudicating bench. He alleged that one of its members was not impartial. Daniluk meant Judge Jarosław Matras. In his opinion, Matras should not examine the cassation appeal against his judgment, because he comes from the Lublin courts.

Daniluk also believes that the Supreme Court judge has a hostile attitude towards him, but does not give any details. He is also accusing the Supreme Court judge that, since he had already questioned the status of a neo-judge in his ruling and has spoken out about neo-judges in public, he should certainly not be ruling in his case.

Daniluk even considers the attempt to assess whether he is an impartial judge to be an insult and humiliation.

He also claims that the Supreme Court has no right to request his personal files, because they contain sensitive employee data. He believes that his right to privacy is being breached.

Manowska felt that the disciplinary commissioner of the Supreme Court should verify all this. That is why she requested the opening of an investigation. In particular, she is requesting an investigation into whether the bench in this case was correctly appointed, whether the requirement of impartiality of the bench of the Supreme Court was observed, and whether the bench was able to request Daniluk’s personnel files and an opinion on his promotion.

Manowska expects that, if the disciplinary commissioner decides that there are no grounds for prosecuting the Supreme Court judges, he will specify the standards for requesting the personal files of judges in his decision. Manowska also expects the disciplinary commissioner to specify standards for assigning cases to judges, even though this is already regulated by law.

President Laskowski: This is an attempt to influence the members of the adjudicating bench of the Supreme Court

The president of the Criminal Chamber, Michał Laskowski is outraged by Daniluk’s complaint and Małgorzata Manowska’s referral of the matter to the disciplinary commissioner of the Supreme Court: ‘The adjudicating bench is only just processing the matter. So far, it has only asked for documents and has not even started to examine the status of this judge yet,’ President Laskowski tells us.

He adds: ‘Such conduct [referring the matter to the disciplinary commissioner – ed.] can be perceived as a threat stopping the bench from going any further down this path.

However, this is how the adjudicating activities of the court are being influenced.’

President Laskowski does not agree with the accusations formulated by Judge Daniluk with respect to the adjudicating bench. He points out that the historic resolution of the full membership of the Supreme Court of January 2020 is still in force and that judges have the right to apply it. He also reiterates that the CJEU suspended the provisions of the Muzzle Act on 14 July 2021, which prohibited judges from examining the status of neo-judges. Therefore, he sees even more reasons for not referring the matter to the disciplinary commissioner of the Supreme Court.

President Laskowski is also rejecting the allegations made directly against Judge Matras. ‘He was a judge of the Regional Court and the Court of Appeal in Lublin [Matras – ed.]. But without exaggeration, that was almost 20 years ago. Judge Matras has been adjudicating in the Supreme Court since 2008,’ Judge Laskowski points out. And adds: ‘He was only superficially acquainted with Daniluk. And neither I nor Judge Matras are aware of the circumstances formulated in the allegations. The parties to the proceedings often formulate various allegations against judges’, emphasises President Laskowski.

He reiterates that the allocation of cases to judges is regulated and judges receive cases in the order in which they are received. Meanwhile, the fact that a judge applies applicable Supreme Court case law is no basis for removing him from a case.

The cassation case against the judgment of the Court of Appeal in Lublin – the one in which Daniluk took part – is still pending. The Supreme Court has already received the personal files and documents on Daniluk’s promotion from the neo-NCJ.

This is not the first time the authorities of the current Supreme Court from the group of the Supreme Court’s neo-judges have interfered with pending proceedings. Manowska, together with acting President of the Civil Chamber Joanna Misztal-Konecka, are blocking the implementation of an important CJEU judgment regarding the status of neo-judges of the Supreme Court. In this case, Manowska took over the case files and ordered the preparation of a legal opinion, while Misztal-Konecka changed the membership of the bench, also appointing neo-judges to it, including Manowska. Therefore, they will be judges in their own case.

Disciplinary matter for Judge Głowacka for applying EU law

It is not only Supreme Court judges who are being prosecuted for implementing ECtHR and CJEU judgments. Disciplinary charges have been pressed against Judge Anna Głowacka of the Regional Court in Kraków for enforcing these judgments and undermining the status of a neo-judge. Deputy Disciplinary Commissioner Przemysław Radzik, who is known for prosecuting independent judges, charged her.

He accused her of breaching the unconstitutional Muzzle Act, in which PiS prohibited judges from examining the legality of neo-judges under the threat of penalties. In pressing disciplinary charges against the judge, Radzik breached the CJEU’s interim measure of 14 July 2021, which suspended the provisions of that Muzzle Act.

Judge Glowacka was previously suspended for a month by the president of the Kraków court, Dagmara Pawlak-Woicka, a nominee of Minister Ziobro and a member of the neo-NCJ, for enforcing the ECtHR and CJEU judgments. This period of suspension is ending and the judge can now return to work. The Disciplinary Chamber is to decide on whether the judge’s suspension is to continue, although this Chamber is to be liquidated.

This is not all. Judge Głowacka was also removed from presiding over a precedent-setting case filed by judges from Rzeszów against Rafał Puchalski, president of the Regional Court in Rzeszów (a nominee of Minister Ziobro and simultaneously a member of the neo-NCJ). The judges are accusing him of unequal treatment at work.

And now, at Puchalski’s request, Judge Głowacka has been removed from the case because she allegedly knows the Rzeszów judges.

The judge was removed, although she categorically declared that she does not know them, and she described Puchalski’s accusations against her as a lie.

The decision to remove her was made by Judge Aneta Tomasiak-Żukowska, who was seconded by the Ministry of Justice to adjudicate in the regional court.

Strong support for Judge Hetnarowicz-Sikora

However, the repressed judges have strong support from the community of independent judges. Another judge, Joanna Hetnarowicz-Sikora from the District Court in Słupsk, who was suspended for a month for applying EU law, received strong support from the judges of the Słupsk region. She was personally suspended by Minister of Justice Zbigniew Ziobro, while second Deputy Disciplinary Commissioner Michał Lasota opened disciplinary proceedings against her. Now the case in which she applied the judgments of the CJEU and ECtHR and contested the status of a neo-judge is of interest to the National Prosecutor’s Office.

38 judges from the Słupsk region signed a strong statement in defence of Judge Hetnarowicz-Sikora. In it, they accused the Minister of Justice of acting in conflict with Article 130 of the Act on the Structure of Ordinary Courts. This Article allows for the suspension of judges for breaking the law and behaving inappropriately. But it does not allow them to be suspended for a month for judicial activity.

The judges emphasise that Ziobro’s decision to suspend Hetnarowicz-Sikora is brutal interference in judicial independence and usurps the minister’s right to decide on the fate of proceedings that are being conducted. The judges from Słupsk consider the minister’s decision to be an example of the suppression of the rule of law and an expansion of political authority beyond the boundaries of the constitutional standard of a democratic state governed by the rule of law. They emphasise that both the minister’s decision and the disciplining of the judge are in breach of the CJEU’s interim measure of 14 July 2021.

Furthermore, the judges from Słupsk write in a declaration that there is no democracy without independent courts. That there is also no respect for human dignity without a proper level of protection of civil rights and freedoms.

‘The acceptance of the repression of judges for making decisions that are legal but not in line with the expectations of the authorities is the end of the rule of law. We do not and shall not agree to this,’ write the regional court judges from Słupsk at the end of their statement.

Judge Joanna Hetnarowicz-Sikora has already returned to work in court, because the period of her suspension by the minister has ended. The illegal Disciplinary Chamber is to decide on her further suspension, but it will be liquidated. Furthermore, the ECtHR issued an interim measure blocking the judge’s suspension by the Chamber.

Defence of Judge Asłanowicz who is being prosecuted for protecting her child

Judge Paulina Aslanowicz of the Court of Appeal in Warsaw has also received strong support. The judge is being prosecuted by Deputy Disciplinary Commissioner Michał Lasota for admitting in her declaration of membership of associations that she is a member of one association. However, she did not give its name.

The judge was protecting the welfare of her sick child in this way. Meanwhile, the name of the association contains the name of the illness and the judge did not want this to be public knowledge. Because the declaration of membership of associations is posted in the Internet. Judge Asłanowicz signed up to this association to find out more about her child’s illness. She does not hold any post in it.

Deputy Disciplinary Commissioner Michał Lasota was not convinced by her explanations and pressed disciplinary charges against her for failing to disclose her membership of the association.

Judge Asłanowicz was being defended by the judges of the Court of Appeal in Warsaw. They issued a statement, which was signed by as many as 64 judges of that court. In that statement, they object to the repressions that have befallen the judge. They emphasise that ‘the expectation to publicise data on the illness of a close relative cannot gain approval, not only legally, but also morally, especially in a situation in which the interested judge [Asłanowicz – ed.] has given extensive explanations, specifying the reasons why the name of the association to which she belongs has not been disclosed’.

The judges of the court of appeal emphasise in their statement that ‘in recent years, both the Disciplinary Commissioner and his deputies [Chief Commissioner Piotr Schab and deputies Michał Lasota and Przemysław Radzik – ed.] made a number of decisions, which aroused adamant objections from the judiciary, as constituting an expression of subordination of this office to political factors [Minister Ziobro nominated the commissioners – ed.].’

The judges write on: ‘So far, however, it has not happened that disciplinary action has been taken against a judge for activities constituting an expression of concern for close relatives and which simultaneously, do not in the slightest degree undermine the authority of the judiciary.

The use of sensitive data could clearly bring harm to a person who is very close to the judge. In such a situation, the Disciplinary Commissioner should be obliged to protect the Judge against whom a third party (a party to proceedings) raises objections related to the non-disclosure of sensitive data, rather than to press disciplinary charges’.

And one more excerpt from the statement of the judges of the Court of Appeal in Warsaw:

‘Such an attitude of the Deputy Commissioner appears to justify the conclusion that it was not Judge Paulina Asłanowicz who committed the offence against the dignity of the office of a judge in the meaning of Article 107 § 1 items 1 and 5 of the Law on the Structure of the Ordinary Courts, but this may have taken place with the involvement of the Deputy Commissioner, who, after all, does not cease to be a judge while holding his office.

We call for an end to the disciplinary actions taken against Judge Paulina Asłanowicz. The judge is performing her duties in an exemplary manner, and so the current situation caused by the Deputy Commissioner’s conduct cannot be accepted and should be stopped immediately, not only with a formal discontinuation of the proceedings, but primarily with an apology to the Judge, Mrs Paulina Asłanowicz, from the Deputy Commissioner’.

The statement was signed by 64 judges of the Court of Appeal in Warsaw:

Bernard Chazan

Alicja Fronczyk

Edyta Jefimko

Ewa Kaniok

Aleksandra Kempczyńska

Przemysław Kurzawa

Edyta Mroczek

Robert Obrębski

Joanna Piwowarun-Kołakowska

Marta Szerel

Bogdan Świerczakowski

Beata Byszewska

Roman Dziczek

Marzanna Góral

Katarzyna Jakubowska-Pogorzelska

Marzena Konsek-Bitkowska

Beata Kozłowska

Dorota Markiewicz

Dagmara Olczak-Dąbrowska

Katarzyna Polańska-Farion

Małgorzata Sławińska

Anna Strączyńska

Agnieszka Wachowicz-Mazur

Joanna Wiśniewska-Sadomska

Katarzyna Capałowska

Anna Kalbarczyk

Rafał Kaniok

Zbigniew Kapiński

Jerzy Leder

Ewa Leszczyńska-Furtak

Marzanna Piekarska-Drążek

Anna Zdziarska

Agnieszka Ambroziak

Marcin Graczyk

Magdalena Kostro-Wesołowska

Anna Michalik

Małgorzata Micorek-Wagner

Renata Szelhaus

Magdalena Tymińska

Marzena Wasilewska

Małgorzata Borkowska

Grażyna Kramarska

Małgorzata Kuracka

Marzena Miąskiewicz

Teresa Mróz

Tomasz Pałdyna

Jolanta Pyźlak

Jacek Sadomski

Ryszard Sarnowicz

Ksenia Sobolewska-Filcek

Marcin Strobel

Krzysztof Tucharz

Elżbieta Wiatrzyk-Wojciechowska

Urszula Wiercińska

Agata Wolkenberg

Agata Zając

Zuzanna Adamczyk

Maciej Dobrzyński

Marcin Kołakowski

Anna Rachocka

Anna Szanciło

Tomasz Wojciechowski

Dorota Wybraniec

Ewa Zalewska

Translated by Roman Wojtasz

The article was published in Polish at OKO.press on 26 March 2022.