This is the first such substantive ruling criticizing Minister Ziobro issued by the new Chamber of the Supreme Court, which replaced the liquidated illegal Disciplinary Chamber. The ruling will reverberate because it is highly critical of Minister Ziobro, who had suspended several judges applying EU law for a month.

It arises from the Chamber’s ruling that the Minister cannot remove judges for a month under Article 130 of the Act on the Ordinary Courts for issuing rulings he does not like. The new Chamber of the Supreme Court held that this provision can only be used to suspend judges who have come to court drunk or who have committed a crime.

The Chamber also ruled that a judge has the right to apply and interpret ECtHR judgments. Because courts are required to apply international law and cannot be suspended for doing so.

The ruling was made in the case of Ziobro’s suspension of Judge Marzanna Piekarska-Drążek  from the Court of Appeal in Warsaw. The minister suspended her because, while implementing the judgments of the ECtHR and the CJEU, the judge undermined the legality of the neo-NCJ and the neo-judges it had nominated in her rulings.

The ruling, which was critical of Ziobro, was issued on Tuesday 20 September 2022 by the temporary members of the Chamber of Professional Liability:

• legal Supreme Court Judges Wiesław Kozielewicz and Małgorzata Wąsek-Wiaderek,
• as well as Lay Judge Aleksander Popończyk.

The same bench of legal Supreme Court judges, only with a different lay judge – Jacek Leśniewski – also disagreed with the suspension of Judge Małgorzata Dobiecka-Woźniak from the District Court in Zielona Góra on Tuesday.

The deputy disciplinary commissioner, Michał Lasota, a nominee of Minister Ziobro, wanted her suspension. Lasota had opened disciplinary proceedings with respect to the judge for issuing a decision on the pre-trial detention of a woman who was supposedly evading appearing in court for her case.

However, the new chamber of the Supreme Court held that the judge’s suspension was not justified and the judgment she issued was no longer a disciplinary delict. A former member of the neo-NCJ, Jarosław Dudzicz, who admitted that he knows the accused, who had been arrested by Judge Dobiecka-Woźniak, appeared in the background to this case.

Likewise, on Tuesday, a panel of the Chamber of Professional Liability adjourned the case of Judge Piotr Gąciarek of the Regional Court in Warsaw (pictured above with citizens). He was suspended in 2021 by the first instance of the illegal Disciplinary Chamber for enforcing CJEU and ECtHR rulings. However, the new Chamber did not hear his appeal against this suspension, because the judge’s defence counsel filed a motion to transfer the case to the legal Criminal Chamber. The defence counsel also filed a motion to remove Judge Wiesław Kozielewicz and the neo-judges of the Supreme Court from examining it. This motion now needs to be examined.

The new Chamber is expected to rule on the suspension of another four independent judges prosecuted for their rulings and their application of EU law on Thursday 22 September 2022. They are Agnieszka Niklas-Bibik from the Regional Court in Słupsk, Irena Piotrowska, Aleksandra Janas from the Court of Appeal in Katowice and Andrzej Sterkowicz from the Regional Court in Warsaw.

The panels in the cases of these judges include neo-judges of the Supreme Court, which means that such a panel is defective. However, these judges are protected by the interim measures recently issued by the ECtHR, which held that a court with neo-judges cannot handle cases of suspension. And the new Chamber should comply with the interim measures and dismiss these cases.

As President Andrzej Duda appointed a permanent group of 11 members to the new Chamber on Saturday 17 September 2022, the problem arose as to whether the temporary panel could hear the cases already assigned to it. On Tuesday, the panel consisting of Wiesław Kozielewicz, Małgorzata Wąsek-Wiaderek and lay judges resolved this matter.

It ruled that the temporary judges of the Chamber were to finish their cases. The panel referred to Article 35 of the Act on the Supreme Court, which gives the First President of the Supreme Court the right to transfer a judge to another Chamber for six months. And he is to complete the cases started there. It should be remembered that the five temporary judges of the Chamber of Professional Liability were appointed by Małgorzata Manowska, a neo-judge in the position of the First President of the Supreme Court.

How Ziobro suspended Judge Piekarska-Drążek

Minister of Justice Zbigniew Ziobro suspended Judge Marzanna Piekarska-Drążek from the Court of Appeal in Warsaw for a month in January 2021. He acknowledged that the judge has to be suspended because she had ‘acted to the detriment of the public interest’, whereby she was supposed to have damaged ‘the gravity of the court of appeal’, ‘breached the material interest of the service’ and ‘undermined public confidence in the administration of justice’.

The point is that she undermined the legality of the neo-judges by implementing the judgments of the ECtHR and the CJEU. Piekarska-Drążek referred to the judgments of the Courts, which contested the legality of the politicized National Council of the Judiciary and the nominations it had given to judges (namely neo-judges).

However, by suspending her for a month, the Minister breached the CJEU’s interim measure of 14 July 2021, according to which the operation of the illegal Disciplinary Chamber and some of the provisions of the Muzzle Act allowing judges to be prosecuted for challenging the status of neo-judges were suspended. It was for failing to implement this interim measure that record fines have been imposed on Poland, the European Commission is now demanding that Poland pays. Meanwhile, the minister himself is exposed to criminal liability for that decision.

Deputy Disciplinary Commissioner Michal Lasota, who had opened disciplinary proceedings for Piekarska-Drążek for challenging the status of a neo-judge, was demanding the judge’s suspension. Lasota was demanding the suspension by the president of the Court of Appeal in Warsaw, but the latter did not comply with his demand. That is why Minister Ziobro did it personally.

Judge Marzanna Piekarska-Drążek, who adjudicates in criminal cases in the capital’s Court of Appeal, knows everyone who goes to the Supreme Court to picket in support of repressed judges. She speaks there and gives support to the repressed.

The judge is also brave in applying the law. She sat in a three-person bench that was the first ordinary court in Poland to challenge the legality of the Disciplinary Chamber. This bench ruled that Judge Igor Tuleya had not been effectively suspended by the Chamber. Michal Lasota first started to prosecute her for that ruling (he initiated an investigation) and had already requested the judge’s suspension from the court’s president. But he was unsuccessful.

Then, the judge started to apply the judgments of the CJEU and the ECtHR from 2021, which questioned the legality of the neo-NCJ and the nominations it had given to judges. Piekarska-Drążek first issued a statement that she would not rule in benches with neo-judges, and there are several in her criminal division. For example, Przemysław Radzik (who recently became vice-president of that court and is the second deputy disciplinary commissioner), who, like Michał Lasota, prosecutes independent judges as a deputy disciplinary commissioner.

Piekarska-Drążek has also issued a number of rulings in which she challenged the status of neo-judges, including Przemysław Radzik, citing precisely the judgments of the ECtHR and the CJEU. The judge mainly submitted dissenting opinions to judgments.

The judge does not recognize the new Chamber

The temporary panel of the Chamber of Professional Liability dealt with the assessment of the decision of the Minister of Justice on the suspension of the judge for a month on Tuesday 20 September 2022. This matter was left over from the Disciplinary Chamber, which had the authority to decide on the further suspension of the judge after the Minister’s decision.

The illegal Chamber did not manage to suspend her, perhaps because the ECtHR issued interim measures protecting her against this. Piekarska-Drążek was also given interim measures protecting her against being suspended by the neo-judges of the new Chamber of the Supreme Court, but she ended up with a bench of legal judges. So this security did not stop her case from being heard on Tuesday.

Before the judgment of the new Chamber was passed, the judge’s defence attorneys had been filing motions for an adjournment for several hours. Piekarska-Drążek was being defended by the president of the Labour and Social Insurance Chamber of the Supreme Court, Piotr Prusinowski, Supreme Court Judge Jarosław Matras and Piotr Zemła, Attorney-at-Law. Meanwhile, she was being supported in front of the courtroom by a group of citizens and other judges, including Piotr Gąciarek and Adam Synakiewicz from Częstochowa, who was also suspended by Ziobro for applying EU law (the new Chamber discontinued his case for procedural reasons several days ago).

Judge Matras and Attorney Zemła first filed a motion to refer the case to the legal Criminal Chamber of the Supreme Court for examination. Attorney Zemła argued that, according to the judgments of the ECtHR, a court which has not been appointed by the judicial administration is also an impartial and independent tribunal established by law. And here, Małgorzata Manowska appointed the people to temporarily adjudicate in the new Chamber.

The judge does not recognize the new Chamber

The temporary panel of the Chamber of Professional Liability dealt with the assessment of the decision of the Minister of Justice on the suspension of the judge for a month on Tuesday 20 September 2022. This matter was left over from the Disciplinary Chamber, which had the authority to decide on the further suspension of the judge after the Minister’s decision.

The illegal Chamber did not manage to suspend her, perhaps because the ECtHR issued interim measures protecting her against this. Piekarska-Drążek was also given interim measures protecting her against being suspended by the neo-judges of the new Chamber of the Supreme Court, but she ended up with a bench of legal judges. So this security did not stop her case from being heard on Tuesday.

Before the judgment of the new Chamber was passed, the judge’s defence attorneys had been filing motions for an adjournment for several hours. Piekarska-Drążek was being defended by the president of the Labour and Social Insurance Chamber of the Supreme Court, Piotr Prusinowski, Supreme Court Judge Jarosław Matras and Piotr Zemła, Attorney-at-Law. Meanwhile, she was being supported in front of the courtroom by a group of citizens and other judges, including Piotr Gąciarek and Adam Synakiewicz from Częstochowa, who was also suspended by Ziobro for applying EU law (the new Chamber discontinued his case for procedural reasons several days ago).

Judge Matras and Attorney Zemła first filed a motion to refer the case to the legal Criminal Chamber of the Supreme Court for examination. Attorney Zemła argued that, according to the judgments of the ECtHR, a court which has not been appointed by the judicial administration is also an impartial and independent tribunal established by law. And here, Małgorzata Manowska appointed the people to temporarily adjudicate in the new Chamber.

Then, Attorney Piotr Zemła applied for an adjournment because the lay judge had changed. But this motion was also not accepted. Just as the motion filed by Supreme Court Judge Piotr Prusinowski to remove the new lay judge, who had ruled in the illegal Disciplinary Chamber.

The substantive hearing then began and Judge Piekarska-Drążek entered the courtroom (she had previously been sitting outside the courtroom). She gave a statement specifying her reasons for not recognizing the Chamber of Professional Liability as a legitimate court. She emphasized that Małgorzata Manowska had nominated the temporary judges to it according to unknown criteria.

She emphasized that Manowska was herself a defective neo-judge and had been elected to the office of First President of the Supreme Court in a procedure with respect to which there were objections. In addition, she was a deputy to Minister of Justice Zbigniew Ziobro. She asked the bench whether it has the freedom to rule in this special tasks body, as she described the new Chamber of the Supreme Court. She asked whether the new Chamber would assess the merits of the decisions made by Ziobro and his nominees, who suspended judges implementing ECtHR and CJEU rulings. Would it dare to assess what was going on in the illegal Disciplinary Chamber. She said that she would not take part in it anymore and left the courtroom.

Deputy Disciplinary Commissioner Michał Lasota, who was demanding her indefinite suspension, then spoke up. He alleged that the judge had replaced the NCJ and the president because she wanted to decide who could be a judge. He warned that, if the new Chamber does not suspend her, Piekarska-Drążek would continue to undermine the legality of the neo-judges.

In turn, Jarosław Matras, one of the judge’s defence attorneys, called for the panel to assess Ziobro’s decision on its merits. And not formally as it had done several days earlier, when the new Chamber discontinued the case regarding the suspension of Judge Adam Synakiewicz on procedural grounds, among other things. Because the minister’s decision could not be examined within the statutory deadline of 30 days.

Matras emphasized that the minister was misusing Article 130 of the Act on Courts, which allows him and court presidents to remove judges for a month from adjudication. Because he used this provision to suspend judges for rulings he did not like.

The new Chamber crushes Ziobro’s decision

However, the bench from the new Chamber – Supreme Court Judges Wiesław Kozielewicz, Małgorzata Wąsek-Wiaderek and lay judge Aleksander Popończyk – unanimously ruled that Minister of Justice Zbigniew Ziobro had suspended Judge Marzanna Piekarska-Drążek groundlessly. The panel also discontinued the case because the 30-day deadline for examining the minister’s decision had passed.

The ruling was justified orally by Judge Małgorzata Wąsek-Wiaderek, the rapporteur in the case. She said that, in a 2009 ruling, the Constitutional Tribunal held that Article 130 of the Act on Courts was compatible with some of the articles of the Constitution. ‘But on certain conditions. One of them is the judicial review of the minister’s decision [to suspend a judge – ed],’ Wąsek-Wiaderek argued. She asked what the minister’s decision to stop a judge’s adjudicating activity is.

And answered: ‘It is a direct encroachment into the sphere of adjudicating activity. This provision should be applied exceptionally.’ She cited the suspension of a judge who had come to work drunk as an example.

‘But it [the provision – ed.] is not there to temporarily take away the ability of judges to adjudicate if they are administering the law and satisfying the requirements of Article 6 of the Convention,’ contended Judge Wąsek-Wiaderek.

She emphasized that the key issue in the case was that Judge Piekarska-Drążek had implemented the judgments of the ECtHR and, on their basis, had contested the status of neo-judges by declaring that judgments passed by such judges were defective. Meanwhile, a bench with neo-judges does not meet the standard of an impartial and independent tribunal established by law, as referred to in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

‘In accordance with the Polish Constitution, international law must be respected. An element of international law is the right of every citizen to a trial in court. An independent, impartial and statutory court,’ Judge Wąsek-Wiaderek emphasized. And added that there was no doubt that Judge Piekarska-Drążek did not want to annoy or humiliate anyone. Implicitly, neo-judges. ‘She just wanted to guarantee this standard [of Article 6 of the Convention – ed.],’ pointed out Wąsek-Wiaderek.

The Supreme Court judge further argued that Piekarska-Drążek did not think this up on her own. She relied on the ECtHR’s judgment in Reczkowicz v Poland in 2021. Similar rulings contesting neo-judges were issued by the legal Criminal Chamber in 2021 and by a seven-judge bench of the Supreme Court in June 2022.

Wąsek-Wiaderek further emphasized that Judge Piekarska-Drążek had the right to apply the ECtHR judgment and interpret it herself. An appeal can be filed against the ruling of the new Chamber with the second instance.

How the Chamber disagreed with the suspension of a judge from Zielona Góra

Also, on Tuesday 20 September 2022, a panel of the temporary Chamber consisting of Supreme Court Judges Wiesław Kozielewicz and Małgorzata Wąsek-Wiaderek, as well as lay judge Jacek Leśniewski did not agree to the suspension of Judge Małgorzata Dobiecka-Woźniak from the District Court in Zielona Góra. Deputy Disciplinary Commissioner Michał Lasota, who filed disciplinary charges against the judge in December 2019 was requesting her suspension.

Lasota accused the judge of unlawfully depriving a woman, who was on trial on a private slander indictment, of her freedom. She was being accused by the attorney of her ex-husband, with whom she was undergoing various proceedings. The trial was handled by the District Court in Słubice, which acquitted her. But the Regional Court in Gorzów Wielkopolski overturned this. And then the case ended up before Judge Dobiecka-Woźniak.

In accordance with the recommendations of the regional court, the judge was to refer the defendant for an examination to establish whether she was of sound mind. But the accused was supposed to have been avoiding contact with the court. And the case was under threat of limitation. The judge had nine months to the end of the limitation period. And when the accused did not collect the summons from the court, she decided to arrest her to conduct the examination.

However, the regional court revoked the arrest after a month. It transpires that the judge had applied the detention too quickly, without waiting for the deadline for receiving the advice note about the consignment from the court. And that is why the deputy disciplinary commissioner held that the judge had illegally deprived the accused of her freedom on the assumption that she was evading the court.

In the Regional Court in Gorzów, Jarosław Dudzicz, a former member of the neo-NCJ, had removed himself from hearing the appeal against the acquittal of the accused for slander. The reason he gave was that he had known the accused at university. Did this influence Deputy Disciplinary Commissioner Michał Lasota, who tends to prosecute judges known for defending the free courts, in taking an interest in the Zielona Góra judge?

Dobiecka-Woźniak did not manage to complete the trial of the accused for slander because the case became time-barred. On Tuesday, 20 September 2022, the judge was at a meeting of the new Chamber of the Supreme Court, which was deciding on whether to suspend her from office. Michał Lasota was also there.

However, the temporary membership of the Chamber of Professional Liability did not agree to her suspension. Because the judge had been working normally since 2019 and there were no complaints against her. After all, Lasota himself had written to the Supreme Court that he was considering withdrawing his motion for suspension. Furthermore, the new Chamber held that, from mid-July 2022, Article 107 of the Act on Courts has new wording and it does not even acknowledge that erroneous rulings are a disciplinary delict. An appeal can still be filed against this ruling. Judge Dobiecka-Woźniak did not comment on the case.

Translated by Roman Wojtasz