Supreme Court Chamber: Judges Could Sign a Letter to OSCE Regarding Presidential Elections. They Cannot Be Prosecuted for This


Journalist covering law and politics for Previously journalist at Gazeta Wyborcza, Rzeczpospolita, Polska The Times, Dziennik Gazeta Prawna.


The New Supreme Court Chamber Ultimately Acquits Belchatow Judge of Absurd Charges – Over the Letter from Polish Judges to OSCE. The Chamber ruled that judges have the right to speak out. This verdict is a failure for the local disciplinary spokesperson, who was the sole prosecutor against judges for this letter.

This is the first definitive and final verdict in this controversial and highly publicized case. It was issued on Wednesday, March 13, 2024, by the Professional Responsibility Chamber of the Supreme Court (SN) composed of the legitimate SN judge Wiesław Kozielewicz, neo-SN judge Paweł Wojciechowski, and lay judge Radosław Jeż.


The Chamber upheld the judgment of the disciplinary court at the Appellate Court in Łódź from May 2023. In this judgment, Judge Piotr Nowak from the District Court in Bełchatów was acquitted.


Judge Nowak was one of the 1278 signatories of the letter from Polish judges to the OSCE requesting monitoring of the planned postal presidential elections in 2020 amid the epidemic. The judges criticized changes to electoral law and expressed concerns about the fairness of such elections.


Judges were concerned that votes would only be cast by mail. Initially, the elections were supposed to be organized by the Polish Post, but the PiS government ultimately withdrew from this plan. The judges also wrote to the OSCE stating that protests against the elections and their validity would be decided by the Extraordinary Control and Public Affairs Chamber established by PiS within the Supreme Court. Recent judgments by the ECtHR and the CJEU have deemed it illegal, as it consists solely of flawed neo-judges.


The signing of this letter led to reprisals against district judges from courts in Bełchatów, Piotrków Trybunalski, and Tomaszów Mazowiecki. Fifteen judges, including Vice President of Iustitia Tomasz Marczyński, are awaiting disciplinary proceedings.


The disciplinary actions were initiated by the deputy disciplinary spokesperson at the District Court in Piotrków Trybunalski, neo-judge Anna Gąsior-Majchrowska, who began to advance under the PiS regime. The illegal National Council of the Judiciary (KRS) nominated her as a neo-judge of the District Court in Piotrków Trybunalski. Gąsior-Majchrowska also briefly adjudicated on delegation at the Appellate Court in Warsaw.


As the only one in Poland, she pursued judges for the letter to the OSCE. Not even known for prosecuting judges, Chief Disciplinary Spokesperson Piotr Schab and his two deputies, Michał Lasota and Przemysław Radzik, decided to bring disciplinary actions. The latter merely sent a letter to local disciplinary spokespeople, demanding explanations if they were prosecuting signatories of the letter to the OSCE. It turned out that only Gąsior-Majchrowska was doing so.


And she suffered defeat. The disciplinary court at the Appellate Court in Łódź acquitted three judges. Gąsior-Majchrowska, the illegal National Council of the Judiciary, and former Minister of Justice Zbigniew Ziobro appealed against it.


But the spokesperson from Piotrków lost for the second time. The New Chamber upheld the acquittal, considering the judgment of the disciplinary court in Łódź exemplary. “A judge cannot be repressed for legal views in judgments and legal views expressed in the public sphere,” justified the verdict of the new Chamber’s presiding judge, legitimate SN judge Wiesław Kozielewicz.


He added: “Judges have a sacred and constitutional right to express themselves publicly. A judge cannot be mute, for example, in matters of lawmaking. They can express their position in a letter, interview, or in the position of a judicial association.”


Judge Kozielewicz emphasized that the disciplinary spokesperson did not act wisely by taking repressive actions for permissible behavior. He further argued that judges should speak without emotions and with restraint. However, the letter to the OSCE did not exceed the limits of expression; it was balanced.


The right to speak on matters concerning the rule of law and the judiciary was also granted to judges a few years ago in a judgment by the ECtHR. Referring to this judgment, the deputy disciplinary spokesperson at the Appellate Court in Kraków, Tomasz Szymański, refused to prosecute Kraków judges for statements and participation in the Tour de Constitution.


The Deputy Disciplinary Spokesperson at the District Court in Piotrków Trybunalski, neo-judge Anna Gąsior-Majchrowska, brought forth an extensive disciplinary charge against judges from the Piotrków district. She accused them of engaging in public activity and taking a stance in the current political dispute by signing the letter, formulating their own views, and opposing the solutions proposed by PiS in the amendments to electoral law.


According to the disciplinary spokesperson, in doing so, the judges violated the constitutional prohibition of judges’ political involvement expressed in Article 178 para 3 of the Constitution. It states that “A judge cannot belong to a political party, a trade union, or engage in public activities incompatible with the principles of independence of courts and the impartiality of judges.”


She also accused the judges of questioning the legality of the Extraordinary Control and Public Affairs Chamber established by PiS, in which judges appointed by the neo-National Council of the Judiciary sit.


In the justification for the mass disciplinary action against judges from the Piotrków district, the disciplinary spokesperson argues that they expressed their views contrary to one of the parties (PiS). In her opinion, a judge should not betray their “political beliefs” or participate in public debate.


The act of signing the letter to the OSCE was classified as a disciplinary offense under Article 107 paragraph 1, points 3, 4, 5 of the Act on the Structure of Common Courts. Point 4 prohibits “public activities incompatible with the principles of independence of courts and the impartiality of judges.” Point 5 refers to a breach of the dignity of a judge. Point 3 prohibits “questioning the existence of the employment relationship of a judge, the effectiveness of the appointment of a judge, or the constitutional authorization of a body of the Republic of Poland.”


The latter point was introduced into the law on courts by PiS through a muzzle law. It was intended to prevent judges from questioning the status of the neo-National Council of the Judiciary, the Disciplinary Chamber, the Control Chamber, or the neo-judges. In June 2023, the CJEU ruled that the muzzle law was incompatible with EU law.


All disciplinary actions against judges from Piotrków initially went to the illegal Disciplinary Chamber, which PiS abolished in 2022. They were then taken over by the Professional Responsibility Chamber. At the request of the defense attorney of the prosecuted judges, Radosław Skiba, three cases were transferred to the disciplinary court at the Appellate Court in Łódź. This was because the adjudicating panels deemed that the new Chamber was not competent as a first-instance court. In these cases, acquittal judgments were issued.


The disciplinary spokesperson from Piotrków Trybunalski, the illegal National Council of the Judiciary, and former Minister of Justice Zbigniew Ziobro appealed against these judgments. The remaining 12 disciplinary cases await a decision from the new Chamber as a first-instance disciplinary court.


The Disciplinary Spokesperson’s Defeat in the New Chamber

On Wednesday, March 13, 2024, the new Chamber reviewed the first appeal against the acquittal verdict of Judge Piotr Nowak from the District Court in Bełchatów.


The case was heard by a panel involving a flawed neo-Supreme Court judge because the defense attorney’s request for a neo-judge test was not granted. During the trial, the defense lawyer submitted a request to exclude the neo-judge. However, the adjudicating panel decided that it would be addressed later and proceeded with the trial.


It turned out during the proceedings that the new Minister of Justice, Adam Bodnar, withdrew the appeal against the acquittal verdict filed by Minister Ziobro. As a result, this appeal was left unaddressed. The appeals of the spokesperson and the neo-National Council of the Judiciary remained in play.


The Deputy Disciplinary Spokesperson at the District Court in Piotrków Trybunalski, Anna Gąsior-Majchrowska, supporting the motion to penalize Judge Nowak, merely stated that she stood by what she wrote in the motion. She demanded a 15 percent reduction in the judge’s salary for a period of 6 months or a financial penalty equivalent to one month’s salary. No one from the neo-National Council of the Judiciary appeared at the hearing. They demanded in writing that the case be reconsidered.


On the other hand, Judge Nowak’s defense attorney, Radosław Skiba, requested that the acquittal verdict be upheld. During the trial, he stated: “Judges, as citizens, have the right to express their opinions on important matters. The letter to the OSCE does not exceed the limits of expression, and it does not contain statements that violate the dignity of the judicial office. There is no political entanglement in it.”


He emphasized: “The letter reflects the concerns of judges about postal voting. It is a concern for the public good.” Skiba also pointed out that judges were disciplined for stating in the letter to the OSCE that members of the Extraordinary Control and Public Affairs Chamber were appointed in a legally flawed nomination process, which compromised the independence of this Chamber.


“However, they referred to the resolution of the full Supreme Court from January 2020. Quoting this resolution cannot be considered a disciplinary offense,” Skiba stressed.


In this historic resolution, the Supreme Court questioned the legality of the Disciplinary Chamber, the neo-National Council of the Judiciary, and the neo-judges, including the neo-Supreme Court judges. Only such flawed judges sit in the Control Chamber. Therefore, it is illegal.


After a brief deliberation, a verdict was reached maintaining the acquittal verdict. First, it was justified by neo-Supreme Court Judge Paweł Wojciechowski, who was the rapporteur for the case. Then, a few sentences were added by legitimate Supreme Court Judge Wiesław Kozielewicz, the presiding judge (his justification was described at the beginning of the text).


The panel concluded that the disciplinary court at the Appellate Court in Łódź was the appropriate first-instance court to consider this case. And its verdict was correct. Neo-judge Wojciechowski justified that the letter to the OSCE was not addressed to a politician but to an international institution. It was balanced and devoid of political declarations.


“Judges may express their opinions on public matters, but in a balanced and restrained manner. And this letter is such,” Wojciechowski reasoned. He emphasized that there is only one paragraph in the letter concerning the Control Chamber, referring to the full Supreme Court resolution from January 2020. This passage discusses the flawed appointment process of the judges to this Chamber.


He added that legal opinions on this issue are divergent. While the CJEU and the ECtHR question the status of neo-judges, the Constitutional Tribunal does not. “However, legal opinion and taking a stance by a group of judges cannot be considered a disciplinary offense,” Wojciechowski concluded.


He did not mention that the Tribunal under Przyłębska’s presidency is an untrustworthy constitutional body, and its judgments issued with the participation of substitutes are not binding.


The article was published in Polish in on 13 March 2024.


Journalist covering law and politics for Previously journalist at Gazeta Wyborcza, Rzeczpospolita, Polska The Times, Dziennik Gazeta Prawna.



March 25, 2024


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