by Agata Szczygielska-Jakubowska

The article was published in Polish at Gazeta Wyborcza 25 September 2020.

‘Times are hard, but it can now be established who is a decent person, who has a moral backbone, who cannot be bought. Namely, who has the moral right to be a judge,’ says Jakub Kościerzyński, judge of the District Court in Bydgoszcz.

Agata Szczygielska-Jakubowska: Judges throughout the country came out in front of their court buildings on Monday in a silent protest. Why?

Jakub Kościerzyński, judge of the District Court in Bydgoszcz: We want to express our solidarity with Beata Morawiec, judge of the District Court in Kraków, who was not afraid to stand up to Minister Zbigniew Ziobro. She sued the minister of justice in defence of her dignity and her personal rights after she was dismissed in the procedure of the special amendment to the Act on the Structure of Ordinary Courts, overnight, by fax, without justification, without the right to appeal.

She was completely groundlessly accused of being associated with an organised criminal group, which, according to investigators, was supposed to have developed illegal activities under the cover of the directors of the Court of Appeal in Krakow, who are only subordinated to the Ministry of Justice.

Who is Judge Morawiec?

‘Judge Beata Morawiec is the president of the main board of the Themis Association of Judges. She was the president of the Regional Court in Krakow until 2017.

She always stood in the front line in defence of common values such as the rule of law, the independence of the judiciary and the impartiality of judges, bravely and publicly criticising all the damaging changes in the area of justice that the ruling camp was introducing.

When Minister Ziobro started his ‘deformation’ of the judiciary, she was dismissed from her office, while her dismissal was related to the activities of an alleged organised criminal group, which was supposed to have been operating at the court of appeal. The judge rightly took up a defence of her good name and took Minister Ziobro to court. She won this case in the first instance while appeal proceedings are currently pending. We have a situation in which proceedings are pending, which the judge has won, while she has been connected with a corruption scandal, with the activities of an alleged organised criminal group.

Attaching a label to the judge that she had something to do with crime when she had no way of supervising the directors meant that she had to defend herself like anyone who is slandered; she did what everyone should do – she sued the person making such an innuendo to protect her personal rights.’

Why did Judge Morawiec criticise the changes in the judiciary? What does she believe are the greatest threats to the justice system?

‘Over the past five years, the United Right Camp has created a complete and closed bureaucratic and administrative system, which had one objective from the beginning – to take political control of the judiciary and the prosecution service.

The positions of minister of justice and prosecutor general were combined and institutionally fully subordinated to a politician from the ruling party.  The prosecution service, which should be independent and not used as a tool for intimidating judges or prosecutors, tries to influence judgments. This complete administrative, disciplinary and bureaucratic system instrumentally uses the regulations on criminal procedures, initiating political preparatory proceedings in order, for instance, to remove an inconvenient judge from adjudicating in a specific case, exclude him from public life and bring infamy down on him.

Several days ago, a prosecutor appeared with officers of the Central Anti-Corruption Bureau at Judge Morawiec’s home at six in the morning and demanded that she surrenders her computer.

I would like to reiterate that a judge has immunity and this immunity is supposed to protect him against abuses by other authorities and services and against groundless accusations.

I would like to point out that the alleged charges – I am convinced that they are groundless – apply to the years 2012–13 and now, after so many years when the judge is a party to proceedings with the current minister of justice, the prosecutor knocks at the door at dawn with the Central Anti-Corruption Office and demands the surrender of a laptop!

Without having the immunity cancelled and therefore not having charges pressed, the judge is being harassed by the law enforcement agencies.

A statement was also issued that the prosecutor would submit a request to the disciplinary chamber to cancel the judge’s immunity. I would like to reiterate that the disciplinary chamber, which is not a court in the meaning of either Polish law or Community law, has not had the right to operate since April this year. An order was issued at the European Court of Justice in Luxembourg freezing this chamber’s activity. Meanwhile, the judge’s immunity may be cancelled by its members. These are political appointees, whose status is being questioned.’

So now nobody can cancel the judge’s immunity?

‘Of course there is a procedure; after all, there are cases where a judge, for example, drives under the influence of alcohol or commits an ordinary, common crime.

After all, the immunity does not serve the purpose of giving the judge impunity.

But it should only be cancelled where such an event has taken place. This is possible.

The prosecution service should then submit its application to the criminal chamber of the Supreme Court, bypassing the disciplinary chamber, because the CJEU ruled that it does not satisfy the criteria of a court, so it is not a court.

And the criminal chamber could successfully resolve the matter of cancelling the immunity. This is one of the ways of solving this problem, so it is not the case that the exclusion of the disciplinary chamber automatically means that a judge cannot be deprived of his immunity.

This can be done, which, after all, the case law of the Supreme Court confirms. The first ruling of the Supreme Court of December 2019 can be mentioned here, when, among other things, the status of the neo-NCJ was emphatically questioned for the first time and it was acknowledged that it was not a body that is independent of the legislative and executive authorities. There is also a path. The point is that this system of repression was created to be able to strike at an inconvenient judge who dares to defy a minister or another representative of the ruling camp.

I would like to remind you that, a year ago, Onet.pl revealed a hate scandal and the Association of Polish Judges, Iustitia, reported the suspicion of a crime being committed involving the operation of an organised criminal group of haters who were using the personal data of judges which the Ministry of Justice had in its possession to destroy the private lives of judges, to organise a hate campaign and to create all types of false information about judges in order to discredit them in the eyes of the public.

We also filed a report with appropriate requests that included, among other things, securing data media and approaching the operators of the internet portals where this content appeared. This investigation has been going on for some time now; apart from having conducted some questioning, not much is happening in this matter.

I would like to reiterate – Judge Morawiec does not even have the status of a suspect, yet she is visited at dawn.

Meanwhile, in the hate scandal, according to journalists, one of the suspects is Łukasz Piebiak, who was dismissed after the scandal was exposed. I have not heard about anyone knocking on his door at six in the morning, demanding that anything is surrendered – media, a computer – so that is how it works. I am absolutely convinced that it is no coincidence that Judge Morawiec has now been attacked.’

Have there been similar attacks on judges adjudicating in cases of importance to members of ruling parties?

‘Yes, it is certainly no coincidence that proceedings were very quickly initiated against the judge who examined the circumstances of the death of Zbigniew Ziobro’s father (this was about medical malpractice) when she obtained an expert opinion that was unfavourable for the prosecution service, for failing to fulfil her duties and overstepping her rights.

Simultaneously, this information was immediately sent to the president of the regional court and the family demanded the removal of the judge from the proceedings.

This is another example of the instrumental use of the regulations on criminal procedures in the situation where a judge embarks on a collision course with Zbigniew Ziobro, who supervises the prosecution service.

This is precisely how attempts are made to remove a judge, to remove him from a case that is going against the minister of justice. Whenever any shadow is case over Minister Ziobro’s case, harassment usually appears if the judge does not adjudicate as he would like. I wrote about this in the report “The judiciary under pressure”, which I wrote together with my colleagues.

The report describes the methodology of operation of this authority, which has the objective of politically appropriating the judiciary under the guise of reform of the judiciary. A whip was created for judges who are not sacred of criticising the changes introduced by the ruling camp, changes that are harmful primarily to citizens, but obviously also to judges.’

Despite assurances from Minister Ziobro and other politicians of the United Right that the reforms they are introducing will repair the situation in the judiciary, it seems as if no significant improvements have appeared so far?

‘Proceedings before courts have now been prolonged by at least double the time. At the beginning of the so-called reform of the judiciary, Minister Ziobro froze all recruitment; the situation built up to a position where there was a shortfall of over 700 judges in the corps.

These are millions of cases they could be examining. Why was this done? To only unfreeze these positions when the whole of the legal National Council of the Judiciary is pacified, when a new, politicized neo-NCJ is formed.

As the Minister of Justice stated in the Senate, the ruling camp nominated judges in January 2020 who were prepared to cooperate in the reform of the judiciary, as candidates to the NCJ. These words summarise everything that this authority wanted to do in the reformation of the judiciary: the full politicization of the NCJ, the political election of its members and only then was recruitment conducted for the vacant judicial positions.’

Is there any chance that courts will function independently and efficiently?

‘A lot is happening at the moment; cases are pending before European courts. The time has come that the judges have to protest. Times are hard, but it can now be established who is a decent person, who has a moral backbone, who cannot be bought. Namely who has the moral right to be a judge.’

Translated by Roman Wojtasz