Ziobro’s ‘enforcers’ are after Judges Głowacka and Barańska for applying EU law
Disciplinary cases are pending for Judges Anna Głowacka and Edyta Barańska from Kraków for implementing ECtHR and CJEU judgments. They are being prosecuted by Zbigniew Ziobro’s people – Piotr Schab and Przemysław Radzik. Similarly, the latter are deliberately breaching the CJEU’s ruling
Minister Ziobro’s disciplinary commissioners are prosecuting further judges for applying European law and implementing ECtHR and CJEU judgments. And importantly, they are prosecuting them under the Muzzle Act, which the CJEU suspended on 14 July 2021. It was precisely for breaching this order that the CJEU imposed a huge fine on Poland of a million euros per day. It now already amounts to 533 million euros! And it will continue to increase until 5 June 2023 – on which date the CJEU is due to issue its verdict on the legality of the Muzzle Act.
This is already a series of premeditated actions on the part of Justice Minister Zbigniew Ziobro’s people, striking at the compromise that the PiS government wants to enter into with the European Commission to unblock billions of euros for Poland for the National Recover and Resilience Plan.
Judges Anna Głowacka and Edyta Barańska from the Regional Court in Kraków are being prosecuted by the chief disciplinary commissioner for judges, Piotr Schab, and his deputy, Przemysław Radzik. Both are known for prosecuting independent judges and are being helped by the second deputy, Michał Lasota. They are all Minister of Justice nominees.
Judges refer to them as ‘Ziobro’s enforcers’
The disciplinary commissioners became active with the prosecution of judges under the Muzzle Act, which had been suspended by the CJEU, in early 2023.
First, several investigations were initiated in January 2023 for the implementation of the ECtHR and the CJEU judgments, which could end in disciplinary charges for Judge Paweł Juszczyszyn from Olsztyn. He is being prosecuted by the local disciplinary commissioner, Tomasz Koszewski, who had been appointed by Schab.
An investigation was initiated against Judge Sławomir Bagiński of the Court of Appeal in Białystok in March 2023, which could also end with disciplinary charges being pressed. Additionally, investigations were initiated against Judge Wojciech Maczuga of the Regional Court in Kraków in March, which could also end in four disciplinary charges being pressed. He and Judge Bagiński are being prosecuted by Deputy Disciplinary Commissioner Przemysław Radzik.
All these judges are ‘guilty’ of challenging the status of neo judges nominated by the illegal and politicised National Council of the Judiciary, on the basis of ECtHR and CJEU judgments.
Ziobro’s disciplinary commissioners are at risk of being held liable on criminal and disciplinary charges in the future for breaching the CJEU’s interim measure of July 2021.
What Judge Głowacka is being prosecuted for
Judge Anna Głowacka of the Regional Court in Kraków adjudicates in the labour and social insurance division. She is a judge with 31 years of experience of adjudication. At the end of March 2023, she received a letter from Deputy Disciplinary Commissioner Przemysław Radzik informing her that he has initiated an investigation in which he assumed that it is ‘possible’ that she had committed a disciplinary offence.
He did not appreciate Judge Głowacka, adjudicating in a single person bench in October 2022, hearing a complaint against a judgment passed by Neo-Judge Agnieszka Zielińska. The judge overturned it because a ruling issued by a neo-judge is defective. This is because such a judge was nominated by the illegal and politicised neo-NCJ, whose status has been contested in judgments of the ECtHR, the CJEU, as well as the Polish Supreme Court and the Supreme Administrative Court.
Judge Głowacka applied this line of judgments. She referred the case back for reconsideration, but by a legitimate court.
However, Disciplinary Commissioner Radzik considered the judge’s adjudication as an unlawful challenge to the appointment of a neo-judge and the undermining of the legality of the neo-NCJ.
He qualified this as a disciplinary act under Article 107, para. 1, items 2, 3 and 5 of the Act on the Structure of the Ordinary Courts. Item 5 refers to a breach of the dignity of the office of a judge. Whereas items 2 and 3 prohibit judges from obstructing the functioning of the judiciary and prohibit the undermining of the status of neo-judges and the neo-NCJ. These two items were introduced into the Act on Courts in 2020 by precisely the Muzzle Act, which the CJEU suspended.
PiS enacted these provisions to prevent judges from applying ECtHR and CJEU judgments with respect to the Polish courts. Radzik is also accusing Judge Głowacka of breaching several articles of the Constitution and even committing the crime of overstepping her powers under Article 231 of the Penal Code. His proceedings could end in pressing disciplinary charges against the judge.
Judge Anna Głowacka comments to OKO.press on Radzik’s action as follows: ‘There are no grounds for this, including moral grounds. Am I to usurp the competence to examine the legality [of a neo judge – ed.]? The commissioner is forgetting about the line of judgments and the Civil Procedures Code [it obliges judges to examine the correctness of the bench – ed.].’
Głowacka emphasises: ‘I will not allow myself to be frozen out. I will continue to consistently do my job.’
This is not the first reprisal to befall Judge Głowacka for applying European law. The judge had been suspended for a month in February 2022 – on the second day of the war in Ukraine. She was unlawfully suspended by the then president of the Regional Court in Kraków, Dagmara Pawełczyk-Woicka, currently chair of the neo-NCJ.
This was a punishment for Głowacka’s ruling refusing to apply an enforcement clause to a judgment of the Kraków Court of Appeal. The judge refused because a neo-judge nominated by the neo-NCJ took part in issuing it. Interestingly, Głowacka was suspended several days before the start of the precedent-setting trial of Rzeszów judges against the president of the Regional Court in Rzeszów, Rafał Puchalski, a member of the neo-NCJ. The judges were accusing him of unequal treatment. These proceedings were to be handled by Judge Głowacka.
The illegal Disciplinary Chamber was to decide on the judge’s further fate, but it did not manage to do so before it was liquidated. The judge also received an interim measure from the ECtHR protecting her, according to which a case for indefinite suspension cannot be heard by neo-judges of the Supreme Court. Głowacka is now awaiting a session of the new Professional Liability Chamber of the Supreme Court.
What Judge Barańska is being prosecuted for
Judge Edyta Barańska adjudicates in the First Civil Division of the Regional Court in Kraków. She is also an experienced judge, having been adjudicating for 24 years. In the middle of April 2023, she received a decision presenting one disciplinary charge against her. It was issued by Chief Disciplinary Commissioner Piotr Schab, who found that the judge had overturned a judgment in January 2022 which had been passed by Neo-Judge Marzena Lewicka.
Schab now alleges, more than a year after the ruling was issued, that Judge Barańska questioned the effectiveness of the neo-judge’s appointment, as well as the legality of the neo-NCJ that had given her the appointment. He qualified this as a disciplinary act under Article 107, para. 1, items 3 and 5 of the Act on the Structure of the Ordinary Courts. The latter refers to a breach of the dignity of the office of a judge. Whereas item 3 comes from the Muzzle Act that had been suspended by the CJEU.
This item prohibits judges from challenging the status of institutions established and staffed by PiS – including the neo-NCJ – under the sanction of penalties, and prohibits the status of neo-judges from being challenged. Schab is also accusing Judge Barańska of failing to act in accordance with her judicial oath to uphold the law.
Schab believes that the judge’s adjudicating activity has struck at the correct operation of the judiciary and the constitutional principles of the legal order. The former president of the Regional Court in Kraków and currently the chair of the illegal neo-NCJ, Dagmara Pawełczyk-Woicka wanted disciplinary action to be initiated against the judge.
Judge Edyta Barańska tells OKO.press: ‘It is a surprise to me that I am being charged for a judgment from over a year ago. It is probably meant to intimidate me, but my legal view has not changed. On the contrary, I have reaffirmed it.’
The judge announces: ‘I will continue to apply firstly the Constitution, which guarantees citizens the right to an independent and impartial court, established by law. I will also apply European law’.
This is Judge Barańska’s second disciplinary action. She had the first in February 2022 from the Deputy Disciplinary Commissioner, Przemysław Radzik. He charged her on two counts for challenging the legality of the neo-judge and the neo-NCJ in two judgments.
How the Kraków-based judges are being repressed
Judges Głowacka and Barańska are not the only repressed judges from the Regional Court in Kraków. This is because the Kraków judges are known for their hard line defence of the rule of law and the free courts. They have been doing this since the start of the PiS rule. That is why Dagmara Pawełczyk-Woicka, a member of the illegal neo-NCJ, who became president of that court at the beginning of 2018, came into conflict with them. She is Justice Minister Zbigniew Ziobro’s former schoolmate.
Judge Waldemar Żurek, former press officer of the legal NCJ, one of the symbols of the free courts, was the first victim of the repression. First, Pawełczyk-Woicka transferred him to another division in the court as punishment. He was the first judge punished in this way. A hail of disciplinary action then fell upon him. He already has more than twenty of these. The National Prosecutor’s Office was also looking for an excuse to charge him.
The judge had a major success recently. The Regional Court in Katowice issued a non-final ruling that he had been discriminated against and oppressed by the court’s management. Żurek has already reported the former president, Pawełczyk-Woicka, to the prosecutor’s office. He is also demanding that the court president reinstate him in his old division.
Pawełczyk-Woicka, as president of the court, forcibly prohibited the judges from enforcing the ECtHR and CJEU judgments. She was threatening them with removal from the profession for refusing to adjudicate with neo-judges. She personally suspended Judge Maciej Ferek and Anna Głowacka for a month. As a result, Ferek was suspended for more than a year by the illegal Disciplinary Chamber. And the new Professional Liability Chamber only recently lifted his suspension, deciding that it was inadmissible to suspend him for applying European law. The motion to suspend Judge Głowacka has not yet been examined.
It was Pawełczyk-Woicka who also transferred further judges as punishment. In addition, she also forcibly transferred Beata Morawiec (she is the head of the Themis association of judges), Katarzyna Wierzbicka, Wojciech Maczuga and Maciej Czajka to other divisions. The last of these was transferred in conflict with his specialisation from the criminal division to the civil division. But after the judges protested, the president of the court backed down from this.
Kraków judges also have numerous disciplinary actions for enforcing ECtHR and CJEU rulings, statements to the media and meetings with citizens. Pawełczyk-Woicka initiated some of these disciplinary actions. In addition to Żurek, Barańska and Głowacka, disciplinary actions are also pending against Judges Maciej Czajka, Dariusz Mazur, and Wojciech Maczuga. They are being prosecuted by Chief Disciplinary Commissioner Piotr Schab and his two deputies.
Furthermore, the National Prosecutor’s Office is looking for a pretext to charge them. In addition to trawling through Judge Żurek, it also wanted to press groundless criminal charges against Beata Morawiec. But even the illegal Disciplinary Chamber ultimately did not agree to the lifting of her immunity. The National Prosecutor’s Office was also looking for an excuse to charge Judge Maciej Czajka for speaking to OKO.press about the implementation of the July 2021 CJEU rulings on the illegal Disciplinary Chamber. It was looking for a pretext to charge Wojciech Maczuga.
The article was published in Polish in OKO.press, 20 April 2023.