Piotr Schab admitted to transferring two judges on disciplinary grounds in a letter he sent on Friday 19 August to Małgorzata Manowska, the neo-judge in the position of First President of the Supreme Court.

Schab’s letter is a response to an earlier letter from Manowska, in which she called on him to stop the official repression of the judges of the Court of Appeal in Warsaw. Manowska’s letter came as quite a surprise, because she rather supports the so-called good change in the courts. But Schab remained steadfast.

Just to reiterate. At the beginning of August 2022, two experienced judges from the criminal division, Ewa Leszczyńska-Furtak and Ewa Gregajtys received a decision to transfer them without their consent to the labour and social insurance division. The decision constitutes an official reprisal for the fact that the judges are applying the judgments of the ECtHR and the CJEU, in which the legality of the neo-NCJ and the neo-judges it nominated was questioned. Furthermore, the judges were transferred even though there is a shortage of judges in the criminal division.

Judges from all over Poland, including the Supreme Court, stood up in defence of the transferred judges. 1,300 judges signed a letter in their defence. The letter emphasised that the decision is in breach of the Constitution, which guarantees judges irremovability and independence. It recalled that judges at the time of the People’s Republic of Poland were repressed in a similar manner.

The decision on the transfer of the judges on disciplinary grounds was signed by the vice-president of the Court of Appeal, Przemysław Radzik. He did this on behalf of the president of that court, Piotr Schab. Both have been in these positions for a short time, having been nominated by Minister of Justice Zbigniew Ziobro. Both are also known for prosecuting independent judges as Minister Ziobro’s disciplinary commissioners. Furthermore, both are neo-judges whose status Judges Ewa Leszczyńska-Furtak and Ewa Gregajtys challenge in their judgments.

And now, in his response to Manowska, Schab announced that he would not withdraw his deputy’s decision and confirmed that the judges had been transferred as punishment.

Schab confirms the repression. The head of neo-NCJ does not see a problem

In his reply to Manowska, Piotr Schab wrote that the decision to transfer Judges Ewa Leszczyńska-Furtak and Ewa Gregajtys to the labour division was made after ‘all circumstances of relevance to ensuring the proper functioning of the court entrusted to me had been analysed’.

He accused the two judges of having long negated the ‘performance of their fundamental official duties the core of which is, after all, the administration of justice’.

Schab writes: ‘The assessment of the professional status of other judges, manifested in a number of letters to the court’s authorities and in numerous rulings and statements to the parties to the proceedings, is, on the one hand, a flagrant transgression of the fundamental requirements of judicial ethics, and, on the other, torpedoes the proper exercise of public service authority in the Court of Appeal in Warsaw, as the people in question are usurping the ability to openly refuse to rule in collegial panels formed with a majority of judges from the Second Criminal Division of that court.’

Schab believes this raises objections from the parties to the proceedings that the judges are handling.

He is also accusing Leszczyńska-Furtak and Gregajtys that their motives for disagreeing with the neo-judges are based on the ‘negation of the constitutional order, undermining the role of the President of the Republic of Poland in the process of nominating judges, or even – allegations of a personal nature against the judges’. 

Schab did not specify what these alleged personal allegations are.

Schab – referred to in legal circles as Ziobro’s ‘enforcer’ – believes the judges ‘overstepped the limit of conduct that is a fundamental condition for the court to fulfil its important public role’.

He continues in his letter to Manowska: ‘Meanwhile, the refusal of the judges to adjudicate has an obvious impact on the assessment of their contribution to the functioning of the Court of Appeal in Warsaw’.

He concludes by emphasising that ‘there is a need to make such a change in the terms and conditions of service’ of the two judges which will deprive them ‘of the ability to adjudicate in collegial panels and therefore lead to the fuller use of their professional potential in an organisational unit that has recently experienced a huge increase in the number of cases submitted to its jurisdiction’.

The Presidium of the new, illegal National Council of the Judiciary, whose status was contested in the judgments of the CJEU and the ECtHR, also took a stance on the official reprisals in the Court of Appeal.

At its meeting on 11 August 2022, the Presidium decided that the matter did not need to be addressed urgently by the neo-NCJ. The Presidium was satisfied with the explanations provided by the vice-president of the Court of Appeal in Warsaw, Przemysław Radzik, and considered that the transfer of a judge on disciplinary grounds had the objective of ‘guaranteeing citizens the right to a hearing in court’.

The Presidium also bought Radzik’s and Schab’s version that the decision is for the ‘good of the judiciary’ because of the attitude of the two judges with respect to the neo-judges.

The head of this illegal body, Dagmara Pawełczyk-Woicka, who is also the president of the Regional Court in Kraków, nominated by Minister Ziobro, signed the statement of the Presidium of the neo-NCJ. Importantly, Pawełczyk-Woicka is also a neo-judge – she received her appointment by the neo-NCJ – and, as the president of the court, she also applies official repression against judges implementing ECtHR and CJEU judgments. We shall return to this later in the article.

In addition to Pawełczyk-Woicka, the Presidium of the neo-NCJ also includes Law and Justice (PiS) MP Arkadiusz Mularczyk, Maciej Nawacki, Anna Dalkowska (Minister Ziobro’s former deputy), Joanna Kołodziej-Michałowicz and Rafał Puchalski, whose name appears in the context of the hate scandal.

All the judges in the Presidium are also neo-judges, because they were promoted by the neo-NCJ.

Judge Leszczyńska-Furtak responds to Schab

Judge Ewa Leszczyńska-Furtak responded to Schab’s allegations. Her statement was posted on the website of the Forum for the Cooperation of Judges. The judge wrote that her judicial service, which she has performed impeccably for 25 years, is being publicly discredited.

She emphasised that she had never refused to administer justice. That she had heard all cases, that she had written justifications for the judgments on time. She emphasised that her work is evidenced by the 100% stability of the rulings she has issued. This means that they are not overturned.

The judge points out that she justified refraining from adjudicating in panels with neo-judges by the rulings of the ECtHR, the CJEU and the Supreme Court in which their legality was challenged.

Leszczyńska-Furtak makes the assurance that she did not want to expose the parties to the proceedings to participation in a procedure that ‘could give rise to far-reaching negative consequences arising from the instability of the outcome of the trial, as well as not wanting to expose the State budget to the related financial consequences’.

This is because a panel with neo-judges is defective, while a ruling made by such a panel can be overturned. And a citizen can claim compensation for a defective ruling.

Leszczyńska-Furtak makes the assurance that she is not undermining the constitutional order, but ‘directly referred to the duty to respect it’. And continued: ‘I have similarly never undermined the role of the President of the Republic of Poland in the process of nominating judges, but merely pointed out the complexity of this process, using purely legal arguments’.

At the end of her statement the judge points out that she has never used insulting or personal arguments against judges, and she considers that making such an accusation against her is slander.

Schab and Radzik may be held liable on criminal and disciplinary charges

Schab and Radzik may face criminal charges in the future for the criminal move of the two judges. Because the division in the court can only be changed without the judge’s consent in exceptional situations. It cannot be an informal official punishment imposed by the court president, to which Piotr Schab actually admitted in his statement.

The transfer of a judge to another division is regulated by Article 75 of the Act on the Structure of Ordinary Courts. It says that a judge may be transferred to another division without his consent for organisational reasons (e.g. the liquidation of an existing division in a court), because of kinship of people working in the same division and as a result of a disciplinary penalty pronounced by a disciplinary court.

None of these situations arise in the case of Judges Ewa Leszczyńska-Furtak and Ewa Gregajtys. No disciplinary proceedings are pending against them, no disciplinary court has ruled on their punitive transfer to a different division.

Besides, a judge cannot be punished for performing adjudicatory functions and applying ECtHR and CJEU judgments. And certainly the president of the court cannot do this, because this is influencing rulings in the passage of which the judge is independent and this is his exclusive domain.

Furthermore, President Schab and his deputy, Radzik, have breached the Constitution. Article 180 of the Constitution states that a judge is irremovable. He can only be moved against his will to another place by a court decision or as a result of serious and justified changes in the organisation of the court’s work.

Radzik and Schab also breached the CJEU’s interim measure of 14 July 2021. In that ruling, the CJEU suspended the illegal Disciplinary Chamber (it has now been liquidated) and the provisions of the Muzzle Act allowing judges to be punished for challenging the status of the neo-NCJ and neo-judges. Whereas Schab has now explicitly admitted that the transfer of the judges is a punishment precisely for challenging the status of neo-judges.

This is not all. In a judgment in October 2021, the CJEU ruled that the transfer of a judge to another division – against his will – is a form of repression and is in conflict with EU law. And it can breach judicial independence. It also breaches the principle of the irremovability of judges and can be a form of control over the rulings they make.

This important judgment of the CJEU was issued in the case of Judge Waldemar Żurek, one of the symbols of the free courts.

Żurek is the first Polish judge to be transferred to the civil division on disciplinary grounds under PiS rule. This was the decision of the president of the Regional Court, Dagmara Pawełczyk-Woicka. Żurek is the most repressed judge in Poland today because he has defended the free courts from the beginning and criticised PiS’s takeover of the judiciary.

For these reasons, Schab and Radzik may be held criminally liable in the future for overstepping their powers, as mentioned in Article 231 of the Penal Code. They may also be liable to disciplinary action.

Transfer on disciplinary charges and suspension of judges

The transfer of judges to other divisions is an increasingly frequent form of repression against judges. It is now being used as a substitute for suspension, which the liquidated, illegal Disciplinary Chamber did. It suspended six defiant judges for the rulings they issued, including for implementing the ECtHR and CJEU judgments.

These are Judges Paweł Juszczyszyn from Olsztyn, Maciej Ferek from Kraków, Maciej Rutkiewicz from Elbląg, Igor Tuleya, Piotr Gąciarek and Krzysztof Chmielewski from Warsaw.

So far, only Juszczyszyn has returned to work, as his suspension was overturned by the now former president of the Disciplinary Chamber, Adam Roch. Tuleya should also return to work because of the measure issued by the Polish court, but this was blocked by Przemysław Radzik, as vice-president of the Court of Appeal. Tuleya reported him and Schab to the public prosecutor’s office for that.

In turn, in addition to Żurek and now Leszczyńska-Furtak and Gregajtys, repression in the form of a change of division has affected other judges. This is how Judge Łukasz Biliński of the District Court for Warszawa-Śródmieście was removed from judging the street opposition. The court president moved Maciej Mitera (he was also a member of the neo-NCJ at the time) from the criminal division by to the labour division. Judge Biliński was famous for his rulings in which he acquitted participants of anti-government protests.

Experienced judges, Piotr Gąciarek and Anna Ptaszek, from the Regional Court in Warsaw have also been removed from judging criminal cases. Both were transferred to the division that enforces the rulings of other judges. This was also a penalty for implementing the rulings of the CJEU and the ECtHR, with regard to neo-judges. Schab and Radzik, who were then in the management of the regional court, were behind these decisions.

Several Kraków judges have also been transferred on disciplinary grounds for the same thing. Judges Beata Morawiec, Maciej Czajka, Wojciech Maczuga, Grzegorz Buła and Katarzyna Wierzbicka were transferred to other divisions. This was the decision of the court president, Dagmara Pawełczyk-Woicka. She, too, will face criminal and disciplinary liability for this in the future.

Meanwhile, Judge Paweł Juszczyszyn from the District Court in Olsztyn, recently had his division changed on disciplinary grounds. After the Disciplinary Chamber overturned his suspension, he was moved from the civil division to the family division. This is a decision of the president of that court and member of the neo NCJ, Maciej Nawacki.

There is still a large group of judges who face indefinite suspension by the new Chamber of Professional Liability of the Supreme Court, which replaced the Disciplinary Chamber, for implementing the CJEU and ECtHR rulings.

These are Judges: Marta Pilśnik of the District Court for Warszawa-Śródmieście, Andrzej Sterkowicz of the Regional Court in Warsaw, Olimpia Barańska-Małuszek of the District Court in Gorzów Wielkopolski, Anna Bator-Ciesielska of the Regional Court in Warsaw, Irena Piotrowska and Aleksandra Janas of the Court of Appeal in Katowice, Rafał Lisak, Wojciech Maczuga and Kazimierz Wilczek of the Regional Court in Kraków, Supreme Court Judge Andrzej Stępka and Military Judge Piotr Raczkowski.

The following judges are also facing suspension: Marzanna Piekarska-Drążek from the Court of Appeal in Warsaw, Agnieszka Niklas-Bibik from the Regional Court in Słupsk, Adam Synakiewicz from the Regional Court in Częstochowa, Anna Głowacka from the Regional Court in Kraków, Joanna Hetnarowicz-Sikora from the District Court in Słupsk and Supreme Court Judge Professor Włodzimierz Wróbel.

However, this group is protected from suspension under the interim measure issued by the ECtHR.