The document informing of potential disciplinary proceedings was received in August by all appellate and district courts. It was signed by judge Przemysław Radzik, one of the three main disciplinary officers in the country appointed by the Minister of Justice. He directed his speech to 56 disciplinary ombudsmen on the ground. In the document, he inquires what kind of actions were taken against the judges who signed the letter to the OSCE.
"I ask you to inform me whether you took any actions to investigate the disciplinary misconduct of each judge". - wrote Radzik. "The information concerns judges of district and county courts in the territory under your purview". - he stressed.
Investigations are used to determine whether there are grounds for disciplinary action. Once they have been completed, the officer decides whether to bring charges against the judge. If they were to decide to do so for every judge who signed the letter, the disciplinary proceedings would be open against 10% of all judges in Poland. Over 1.2 thousand judges of common courts have signed a letter to the OSCE.
The letter concerned the monitoring of the Polish presidential election
The preparation of the letter was initiated by judges from Szczecin. Its signatories addressed Ambassador Ingibjörg Sólrún Gísladóttir, the head of the OSCE Office for Democratic Institutions and Human Rights in Warsaw, in April. The Office is involved in election observation. The judges called for "an in-depth monitoring of the ongoing electoral process in Poland".
The letter was a reaction to the law adopted in April according to which the presidential election would be held entirely through voting by mail on May 10 (eventually the election did not take place). "As judges of Polish courts at all levels, we are concerned about changes in the electoral law. We are concerned about the threat of such basic standards as the principle of universality of elections and secrecy of voting". - The judges wrote about the vote in which was supposed to be organized in its entirety by the Polish Post.
They also pointed out that due to the epidemic the election campaign cannot be conducted freely, and the validity of the election will be decided by the Supreme Court's Chamber of Extraordinary Control. The President filled it entirely with appointees proposed by the ruling camp-controlled National Council of the Judiciary. "Its members were appointed in a legally flawed process that resulted in the lack of independence of the Chamber". - The judges wrote, citing the January resolution of the three chambers of the Supreme Court.
After reading the letter, Radzik decided that the possibility of committing two new disciplinary offences defined in the February anti-judges "muzzling act" was at stake - 'challenging the effectiveness of the appointment of another judge' and 'public activity incompatible with the legitimate independence of the courts'. Both actions are subject to the most severe penalties defined by the bill: relocation to another court or removal from the profession. According to Radzik, in this case the judges might have violated the Constitution, which prohibits judges from activities that are incompatible with their impartiality.
Judges have a duty to defend democracy
Radzik did not respond to our question in which we asked him to specify which fragments of the letter indicated a possible violation of the constitutional ban. In the letter, the judges stated: "our concerns do not result from a political evaluation of the adopted solutions, but only from the role we play in the state".
"Judges can, and even have a duty to, speak out in defence of democracy and the rule of law when there is a breakdown in the constitutional order". - wrote in 2019 in the recommendations of Diego Garcia-Sayán, UN Special Rapporteur on the independence of judges and lawyers. He addressed his speech to the Polish authorities, among others.
- The judges who signed the letter were guided by concern for the fairness of the elections and the observance of constitutional guarantees," one of the signatories of the letter, a judge of the Sulęcin District Court Bartłomiej Starosta, told Wyborcza. Is he afraid of disciplinary proceedings? - I am not afraid. I am afraid that Poland, as a country, may suffer the consequences of the disciplinary officers' actions in the form of sanctions from the EU Court of Justice. Such wholesale disciplinary proceedings show how far detached they are from actual judicial service," Starosta said.
The European Commission is conducting a procedure concerning the potential incompatibility of the muzzling bill with the EU legal order. The Commission's investigation may result in a complaint to the CJEU against the Polish government.
What will the field disciplinary officers do?
According to Starosta, if any judges are politicised, they are the ones who have been given promotions by the Minister of Justice, including three main disciplinary officers. - I hope that the local officers will not give in to pressure and will ask Radzik about the legal basis for his inquiry. I haven't found it," Starosta told us.
Local officers were given by Radzik until 1 September to send a photocopy of the orders to take explanatory measures, and if they did not take them, to justify their position. A refusal may theoretically expose them to disciplinary action. Judges have already received information about the investigations initiated by the officer from the Suwałki District Court. - I know that letters asking for explanations have been sent - Starosta confirms.
The first such proceedings were initiated by Anna Gąsior-Majchrowska, a officer from the District Court in Piotrków Trybunalski, in June. In 2019, she was promoted to the District Court thanks to the nomination of the politicised KRS. She demanded explanations from several judges. In his letter, Radzik stated that his request does not concern her.
Based on the "Muzzle Act", Radzik and the other two officers appointed by Ziobro have the right to conduct disciplinary actions in any case concerning any judge. Why don't they handle the cases themselves in the case concerning the letter to the OSCE? Conducting 1.2 thousand proceedings exceeds the capabilities of three officers. The case is also an opportunity to force local officers to enforce the repressive muzzling law. In his letter, Radzik does not mention judges of courts of appeal, and 108 such judges signed the letter. Their prosecution is the responsibility of the three officers responding directly to Ziobro, so they will probably have to take up the cases concerning appellate judges themselves.
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