Ziobro breached the CJEU judgment and suspended Judge Synakiewicz for applying EU law


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


The Minister of Justice suspended Judge Adam Synakiewicz from Częstochowa for a month for challenging the status of neo-judges and implementing the judgments of the CJEU and ECtHR. Zbigniew Ziobro breached the CJEU judgment in this way, for which he may be criminally liable in the future

Minister Zbigniew Ziobro suspended Judge Adam Synakiewicz from the Częstochowa Regional Court on Wednesday 8 September 2021. This is formally a decision to remove him from adjudicating for a month. The minister did this after a letter was sent to the ministry by Deputy Disciplinary Commissioner Przemyslaw Radzik, a Ziobro nominee known for prosecuting independent judges, who had initiated an investigation against the judge.


The judge is being prosecuted because he implemented the judgments of the Court of Justice of the EU and the European Court of Human Rights from July 2021 regarding the status of the illegal Disciplinary Chamber and the new, political NCJ, which promotes judges. This was the basis on which Synakiewicz challenged the judgments issued by the neo-judges nominated by the new NCJ.


This did not please Minister Ziobro, who spoke on a Catholic radio, stating that disciplinary proceedings should be applied to such judges, who should be removed from the profession. The minister’s words were quickly implemented by his disciplinary commissioner, Przemyslaw Radzik, who initiated proceedings against the judge. He accused Synakiewicz of overstepping his powers (under Article 231 of the Penal Code) and of breaching the unconstitutional Muzzle Act, which prohibits judges from examining the status of neo-judges.


However, Radzik himself is exposing himself to criminal liability, because, by initiating the case against the judge, he breached the CJEU judgment which suspended these provisions of the Muzzle Act. And now Minister Ziobro has breached them.


‘I am not afraid of lawlessness. I will not be scared, even if I do not return to adjudication after the holiday I am on. I shall continue to be faithful to the oath I took and the principles that all judges should observe. I shall continue to be independent,’ – judge Adam Synakiewicz tells us.


He adds: ‘I am waiting for the document from the minister to be served to me so that I can address it. I cannot agree with the grounds for the suspension. The minister cited a provision that allows a judge to be suspended for an unworthy act. I have committed no such act. The minister suspended me for the judgment I issued. Whereas the judgment is issued by the court and is not an act of a judge. There are no legal grounds for suspending members of the bench because of a judgment that was issued.’


To what Minister Ziobro referred


While removing Judge Synakiewicz from adjudicating, the minister of justice referred to Article 130 of the Act on the structure of ordinary courts. It states in paragraph 1:


‘If a judge is detained because of being caught in the act of committing an intentional crime or if, due to the nature of the act committed by the judge, the gravity of the court or the important interests of the office require that he be immediately removed from performing his duties, the president of the court or the minister of justice may order the immediate interruption of the judge’s duties until a resolution is issued by the disciplinary court, for no longer than a month.’


The minister made this decision because Deputy Disciplinary Commissioner Przemyslaw Radzik had sent a letter to his ministry stating that he had initiated proceedings against Synakiewicz for breaching the Muzzle Act. The minister probably considered that this type of alleged act by the judge will result in a breach of the gravity of the court and the important interests of the office. In other words, that the judge would further undermine the status of neo-judges.

That is why the minister removed him from adjudicating, which should, however, be considered harsh repression and an attempt to silence the judge, as well as an attempt to chill the whole of the judicial community. So that nobody tries to follow in Synakiewicz’s footsteps. This motion is absolutely legitimate, because Radzik had previously submitted a request to the president of the Regional Court in Częstochowa, Rafał Olszewski, to remove the judge from adjudicating. But the president refused, acknowledging that there were no grounds for this.


President of Iustitia: the minister’s criminal liability could be considered

The president of Iustitia, Poland’s largest association of judges, Krystian Markiewicz, tells us that it will be possible to consider the minister’s criminal liability for this decision in the future.


‘Ziobro is conducting illegal acts. This time, however, nobody wants to follow his orders [Ziobro himself signed the decision to suspend Synakiewicz – ed.].


By suspending the judge, he clearly told the whole of Europe that he does not intend to respect the basic principles of the legal order and intends to punish all judges who apply EU law,’ – Krystian Markiewicz argues.


He emphasizes that Article 130 of the Act on Courts, which was applied by the minister, could not constitute grounds for suspending a judge for his judgments. Because this provision applies to the activities of judges and not courts. And it can be applied not for passing judgments but, for instance, for drunk-driving or against a judge who has committed a criminal act.


‘The minister applied this provision for repressive purposes. This is another signal to the EU that the Polish government and parliament has a minister who is ignoring European standards, the rule of law and the principles of law,’ adds Markiewicz.


Judge Maciej Czajka of the Themis association of independent judges believes the same: ‘Any decision constituting retaliation for a judgment made by a judge examining the status of judges in the context of the right to a fair trial is a breach of the prohibitions arising from the CJEU judgments.


The application here of Article 130 is a gross abuse of that provision and merely a pretext for purposes that are completely unrelated to the proper functioning of the judiciary,’ – Judge Maciej Czajka tells us.


He adds: ‘This is further evidence for the European Commission that the judgments of the CJEU are not being implemented. The decision to suspend a judge is like throwing down a gauntlet to the European Commission and the CJEU. This is where politics comes in. And it is a continuation of actions intended to make more judges afraid of making independent decisions.’


Judge Adam Synakiewicz is also being defended by Iustitia, which previously issued a harsh stance on his prosecution.


What will happen to the judge next?

Now, the Judge Synakiewicz’s further fate will be determined by the disciplinary court, which will either overrule the minister’s decision or suspend the judge for longer. That is, until the entire disciplinary proceedings end with a judgment. In practice, even for several years. Only that such a court decision – regarding suspension – would also be a breach of the CJEU ruling, which prohibited the prosecution of judges for judicial activity that disregarded the provisions of the Muzzle Act.


As Disciplinary Commissioner Radzik accepted that Judge Synakiewicz had committed a crime of overstepping his powers under Article 231 of the Penal Code, the Disciplinary Chamber could make a decision on his continued suspension. This is a deliberate act. Furthermore, the Act on courts amended by the Law and Justice party (PiS) states that cases regarding challenging the status of judges are also handled by the Disciplinary Chamber.


Only that the CJEU ruled in mid-July 2021 that this Chamber is not a court and suspended it. The consideration of Synakiewicz’s case would therefore mean that the chamber would also be breaching the CJEU’s judgments. It can do so if this case is referred to it by the Supreme Court’s services.


How Synakiewicz fell foul of Ziobro and Radzik

Judge Adam Synakiewicz of the Regional Court in Częstochowa was the first in Poland to implement the CJEU’s rulings of 14 and 15 July 2021. In them, the CJEU suspended the activities of the Disciplinary Chamber, especially with regard to lifting the immunity of judges, and suspended the provisions of the Muzzle Act prohibiting judges from examining the status of judges nominated by the new, political NCJ. And there are already around a thousand such judges.


The CJEU also questioned the disciplinary system for judges and the status of the illegal Disciplinary Chamber. Likewise in July, the status of the Chamber was questioned by the European Court of Human Rights. Synakiewicz also referred to this judgment. Because both the CJEU and the ECtHR contested the status of the new, political NCJ and the nominations it has given to judges.


Judge Synakiewicz first applied these rulings in July 2021 by issuing dissenting opinions to judgments issued by the three-member bench of which he was a member. This bench also included a judge promoted by the new NCJ. The judge contested the status of a neo-judge for a second time in August 2021, when he overturned a judgment issued by such a judge.


More judges are contesting the status of neo-judges

Adam Synakiewicz is not the only judge to question the status of neo-judges after the judgments of the CJEU and ECtHR.


Judge Jacek Tyszka of the Regional Court in Warsaw issued a declaration that he does not want to be a member of benches with neo-judges. The court’s vice-president, Przemysław Radzik (who combines this position with prosecuting independent judges as a disciplinary commissioner) reacted to this absurdly. He sent Tyszka’s declaration to the Ministry of Justice, stating that he had resigned from the office of a judge. This was seen to be an attempt to forcefully remove the judge from the profession.


A similar declaration was issued a few days ago by Judge Piotr Gąciarek, also from the Regional Court in Warsaw. Gąciarek is known for his defence of the free courts. This is his second such declaration. He was punished for the first one by court president Piotr Schab, who is simultaneously the chief disciplinary commissioner. Schab transferred Gąciarek to another division at the court, where he no longer holds trials in important cases.


Translated by Roman Wojtasz


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



September 10, 2021


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