We are publishing excerpts from the interview which Professor Marek Safjan gave to Dorota Wysocka-Schnepf from Gazeta Wyborcza. The interview was published on 28 August 2020. The questions were rephrased for clarity.

The disciplinary commissioners want to prosecute 1,200 judges throughout Poland who signed the letter to the OSCE asking it to oversee the postal presidential elections, which were to be held in May 2020. Were the judges allowed to sign such a letter?

Prof. Marek Safjan: “I have no doubts that they were. Let us remember that this was no ordinary letter, but a letter in defence of the rule of law, in defence of transparent equal, general and free elections, namely such an element which determines the system of law and which essentially applies to the systemic and legal consequences in our country.

Therefore, the judges, not only as people who are particularly predisposed due to their knowledge and experience, but also as citizens, have the right to speak up in such cases.

It is not the case that the critical voice of a judge regarding one legal regulation or another, undermining, for example, the rationale of the intentions or indicating extremely negative consequences – as in this case, because the threats were noticeable by everyone – that such a voice can immediately be considered as taking part in a political debate.

In my opinion, this is a dramatic confusion of concepts. The involvement of a judge, who speaks up on such public matters related to the rule of law is certainly not a political voice.”

The disciplinary commissioners are pressing charges, such as “dishonouring the dignity of a judge and undermining his independence and impartiality”, on the judges.

“There is no way of agreeing with this at all. Because judges have been essentially stripped of their ability to speak up at all on any matter that is not related to issues that apply to them, e.g. in connection with court proceedings. After all, this is nonsense. A judge is still a citizen. And every judge, after all in line with the position of the European Court of Human Rights in Strasbourg, which was also very clearly expressed in CJEU’s judgment in Baka v. Hungary, has the right to publicly speak out in situations that apply to the protection of fundamental rights, constitutional systems of the courts and issues of key importance to the rule of law. And this was the situation in this case.”

The next allegation: “in the letter to the OSCE, a judge took up public activity, taking an active stance in the current political dispute and standing up against solutions proposed by one of the political parties”.

“This is an allegation that essentially applies to the same criticism of the adopted statutory regulation, and, without any doubt whatsoever, judges have the right to express such criticism. In a sense, it can be said that they are even obliged to speak up if they see defects in such a solution, from the point of view of precisely the public good. They have at least a moral obligation to take part in the emergence of such a law.

After all, it should be remembered that these changes in the law were previously also subject to, for example, an opinion of the Supreme Court. Should it also be said that the Supreme Court took part in a political debate because it spoke up about a bill prepared by the political majority in parliament?

After all, this is nonsense. Every bill must be supported by one or another politically specified majority. From this assumption, any criticism of the law that has been passed by the political majority would have to be treated as a breach of the dignity of a judge, participation in a political debate, and taking a stance on issues that are of a purely political nature.

This is a complete confusion of notions. There is no way of agreeing with this. And we should remember that this is, I would like to re-emphasize, about a category of people who are particularly strongly responsible for the course of matters in the country. As people who are highly aware and have professional qualifications, they should alert the public when they notice that the solutions that are being prepared could be damaging to the public good.

I repeat – they have the duty to do so! After all, we should remember the scale of what is happening today, because I am hearing about 1,200 judges who could potentially be subject to disciplinary proceedings. After all, this is inconceivable! This is 10% of the judges in Poland. Where are we heading?”

What does the EU say about the abuse of disciplinary proceedings with respect to judges?

“In our recent case law of the CJEU, for example in the judgment of 19 November 2019 or in the April judgment on interim measures regarding the functioning of the Disciplinary Chamber, the Court clearly held that threatening judges with disciplinary proceedings are a tool used for intimidation.

It can be an instrument that affects the attitudes of judges and can have extremely negative consequences on the independence of judges and their objectivity. It is one of those elements that must always be taken into account as an important criterion for assessing whether the standards of judicial independence are being respected.

And if it happens on such a scale, there is no need to ask rhetorical questions; after all, it must have the effect of intimidating the entire community.

I don’t know where this is going. The Court of Justice referred to all the negative consequences and that is why the functioning of the Disciplinary Chamber of the Supreme Court was temporarily suspended, as some people are trying to completely forget today. Well, the point was not to use this tool in the form of disciplinary proceedings and a threat of disciplinary sanctions as a form of pressuring judges. This is how it was developed. Meanwhile, we are dealing with exactly the opposite.

The use of this tool against judges is extremely dangerous. This is playing a really very dangerous game with the standards of the rule of law, with incalculable consequences.

Unfortunately, looking at the way in which disciplinary proceedings are being developed, with such heavy involvement of the disciplinary commissioners who, just as a reminder, are appointed by the minister of justice, such a situation can suggest that this is actually about some far-reaching effects, e.g. the replacement of a large number of judges and with new judges. Well, that would be unthinkable.

(…)

I believe that, in the current situation, no scenario can be ruled out, including the most pessimistic one, which would use precisely the most far-reaching means, regardless of the consequences.

Further proceedings are still pending in Luxembourg before the CJEU.

All these are elements that also affect the assessment of what is happening in our country. And this is not the background; these are the circumstances that form the context in which these matters are being settled.

I simply cannot understand what the idea is, what the politics are in this respect, as it can lead to such a huge strain on confidence in Polish judges.

After all, the steps were taken by the Disciplinary Chamber of the Supreme Court, when there is a decision of the Court of Justice of the European Union to suspend the activities of these courts with respect to judges, for example, constituted such a completely incomprehensible act.”

(…)

“I cannot rule out any negative scenario. This is extremely disturbing, it seriously worries me. I look at it from a certain distance from Luxembourg but I have to say that I am truly very concerned by it.”

Translated by Roman Wojtasz