According to the Polish Constitution, judges are irremovable.[1] A judge may be deprived of his or her office without his or her consent only as a result of a decision of a disciplinary court which has the power to remove a judge from office in disciplinary proceedings for committing a disciplinary offence.[2]
This does not prevent the current Minister of Justice from publicly announcing the verification of judges.[3] During a meeting of the Sejm Committee on Justice and Human Rights on 11 July 2024, Minister Adam Bodnar said directly: "It is necessary to present two government bills as soon as possible. Firstly, the Act on the Status of Judges, which will ultimately regulate the status and method of verification of judges appointed on the recommendation of the National Council of the Judiciary after 2017 and the Act on the Supreme Court".[4]
Such proceedings directly violates the provisions of the Polish Constitution.
The government is particularly bothered by those judges who in the years 2016-2023 devoted themselves to work in the Ministry of Justice, the National Council of the Judiciary or served as presidents of courts or disciplinary officers. Currently, criminal proceedings are being launched against them, which are prima facie striking in their groundlessness and political nature. It is clear that criminal law is used only to oppress and freeze judges, and perhaps even to eliminate them from the profession. In addition, such proceedings publicly discredit judges, because they are suspected of committing crimes. And such an accusation is discrediting for a judge. The very conduct of criminal proceedings puts pressure on judges, because they are kept in uncertainty for a long time. This, in turn, may cause the so-called chilling effect on the daily work of any judge, who should be able to devote himself entirely to administering justice, and not consider whether his work is liked by the ruling party.
After the unlawful takeover of the highest offices in the prosecutor's office, which I discussed in one of my previous blog posts, the authorities gained the ability to use the prosecutor's office to achieve their political goals, including to exert influence on judges by threatening them with criminal liability.
According to the Polish Constitution, bringing a judge to criminal liability, as well as deprivation of liberty, requires the prior consent of the court specified in the law.[5] The disciplinary court shall issue a resolution authorising the prosecution of a judge if there is a sufficiently justified suspicion that he or she has committed a crime.[6]
In relation to judges, immunity is "one of the main elements shaping the status of a judge, being – along with the principle of irremovability and non-transferability – an important guarantee of judicial independence".[7] Nevertheless, it should be emphasized that immunity is not a personal privilege of a judge, and "the purpose of immunity is not – as was the case in Middle Ages – to privilege a certain social group, but to guarantee the proper performance of tasks by persons holding particularly important functions".[8]
Undoubtedly, immunity is an exception to the constitutional principle of equality before the law, and is also one of the most serious guarantees of judicial independence.[9] The judicature indicates that "the institution of judicial immunity, as one of the elements of the guarantee of judicial independence, is primarily intended to serve the interest of the administration of justice. The interest of the judge himself should be perceived through the prism of the second reason for the existence of this immunity, namely the presumption of honesty of the judge as a person of impeccable character, meeting the highest professional and moral requirements".[10]
"The function of judicial immunity is to protect the independence of courts and judges in order to ensure that they can adjudicate properly and free from external pressure" and "the purpose of this institution is to protect public trust in the judiciary, and not to protect a group of state officials from criminal liability for crimes committed".[11] Thus, it can be concluded that the institution of immunity was established in order to maintain systemic guarantees of civil rights and to prevent the phenomena of hasty undermining of the dignity of the judiciary and public confidence in it.[12]
A sine qua non condition for waiving immunity must be a finding that the evidence collected by the prosecutor's office indicates a sufficient suspicion that the judge against whom a request for consent to prosecute criminal liability has been filed with the disciplinary court has by his conduct met the characteristics of the offence described in the application. The task of the disciplinary court is to determine whether the proceedings are not the result of harassment against the judge or prosecutor for his or her previous activities.
The suspicion of committing a crime by a judge or prosecutor should be "fully justified, not giving rise to any significant doubts or reservations, either as to the committing the act itself or the presence of other elements covered by the law within the framework of the principles of criminal liability".[13]
The privilege of immunity is intended to ensure that judges are not subjected to any pressure, their work is not hindered for political reasons or personal resentment, and attempts are not made to take revenge on them for their professional activities. Therefore, the task of the disciplinary court must be to determine whether the submitted application is not retaliatory against the judge or whether it is not aimed at forcing him to take certain actions or refrain him from doing so.
The practice of the Polish prosecutor's office in recent months is contrary to this theory. Specifically, the prosecutor's office began a series of motions to waive immunity to judges whom it considered enemies of the current government. These recent requests are not sufficiently substantiated. They bear clear signs of repression and are an attack on judicial independence. Their only reason is to break and punish judges who dared to fulfill their official duties, having different ideological views than the current government.
It should be mentioned that the prosecutor's office publicly boasts about these conclusions, publishing official announcements directly mentioning the names and surnames of specific judges and describing the alleged criminal acts attributed to them.[14] This leads to extensive coverage in the government-friendly media of the alleged criminal activities of these judges. Such behavior violates the press law, which prohibits the publication of images and other personal data of persons against whom preparatory or judicial proceedings are pending.[15]
An example of such requests for waiver of immunity are the applications concerning four judges who were accused of acting "in an organised criminal group" which allegedly carried out criminal activities consisting in "unauthorised processing of personal data of judges and disclosure" to each other of information obtained about these judges, while the further purpose of the group was to publicly criticise the victims.[16] A total of 44 crimes were attributed to individual judges. This catalogue consists only of acts involving the unauthorized processing of personal data or the disclosure to each other of information of an open nature concerning judges – members of associations friendly with the current Minister of Justice. It should be added that the accused judges held positions in the Ministry of Justice, as well as court presidents and disciplinary officers, and were authorized to enforce compliance with the law by judges, which makes internal communication between them obvious.
At the same time, the prosecutor denies the accused judges access to the case files, does not agree to show them any evidence to indicate their actions. In doing so, it ignores the well-established principle in the case law that in the course of immunity proceedings a judge has a right of defence, including the right of access to the material submitted by the applicant.[17] The exclusion of access to the evidence attached to the application makes the judge's right to defence an illusory right, and even makes the defence impossible.
Other examples of repression against judges are applications for permission to prosecute three judges for allegedly concealing disciplinary case files kept by them, what constituted a failure to comply with official duties.[18] It should be emphasized that all these judges are disciplinary officers at various levels. As part of their professional duties, they conduct specific proceedings concerning specific judges and specific disciplinary offences committed by them. Due to the fact that some of these proceedings concerned judges close to the current government, closely cooperating with it, Minister of Justice Adam Bodnar appointed the so-called ad hoc disciplinary officers, whose task was to take over these files and discontinue the proceedings. A dispute arose between the legal statutory disciplinary officers and the minister's disciplinary officers as to who should handle these cases. The principle arising from the Procedural Act is that disputes between judges should be resolved by the court. However, in order to ensure impunity for friendly judges, the government decided to use the prosecutor's office and launch an apparatus of repression against judges – legal statutory disciplinary officers. The request for waiver of immunity is aimed solely at oppressing these judges, publicly discrediting them and damaging their reputation.
The essence of the government's proceedings, exemplified by the above-mentioned motions for waiver of judicial immunity, is to get rid of judges who have been nominated in procedures involving judges, who may not be obey the current, left-liberal government. In this way, the government wants to ensure judicial favor for the introduction of its planned institutional changes in Poland, perhaps deprivation of Polish sovereignty within the federalized European Union.
[1] Article 180(1) of the Constitution: Judges shall not be removable.
[2] Article 180(2) of the Constitution: Recall of a judge from office, suspension from office, transfer to another bench or position against his will, may only occur by virtue of a court judgment and only in those instances prescribed in statute.
[3] www.niezalezna.pl/polityka/rzad/bodnar-zamierza-weryfikować-sędziów-zapowiedział-dwa-rządowe-projekty-jak-najszybsze/52208 - Bodnar zamierza weryfikować sędziów. Zapowiedział dwa rządowe projekty. "Jak najszybsze" | Niezalezna.pl
[5] Article 181 of the Constitution: A judge shall not, without prior consent granted by a court specified by statute, be held criminally responsible nor deprived of liberty. A judge shall be neither detained nor arrested, except for cases when he has been apprehended in the commission of an offence and in which his detention is necessary for securing the proper course of proceedings. The president of the competent local court shall be forthwith notified of any such detention and may order an immediate release of the person detained.
[6] Article 80 § 2c of the Act of 20 June 1985. The Law on the System of Common Courts (Journal of Laws 1985.31.137 of 1985.07.12): The disciplinary court issues a resolution authorising the prosecution of a judge if there is a sufficiently justified suspicion that he or she has committed a crime. The resolution contains a decision on the permission to hold a judge criminally liable, together with a justification.
[7] Resolution of the Supreme Court of 18 July 2016, file no. SNO 29/16, LEX no. 2087128.
[8] R.A. Stefański, Prosecutorial Immunity, Prok. i Pr. 1997/2, p. 63
[9] W. Kozielewicz, Disciplinary Liability of Judges. Commentary, Warsaw 2005, p. 54
[10] Resolution of the Supreme Court of 7 July 2004, SNO 28/04, OSNSD 2004, No. II, item 37
[11] Resolution of the Supreme Court of 16 December 2005, SNO 44/05, LEX no. 472000
[12] Resolution of the Supreme Court of 18 July 2014, file no. SNO 36/14, LEX no. 1504922
[13] Decision of the Supreme Court of 12 June 2003, file no. file SNO 29/03, LEX no: 470220
[14] official website of the National Prosecutor's Office www.gov.pl/web/prokuratura-krajowa
[15] Art. 13. Act of 26 January 1984, Press Law, Journal of Laws 2018.1914:
1. It is forbidden to express opinions in the press as to the outcome of court proceedings before the issuance of a ruling in the first instance.
2. It is forbidden to publish in the press the image and other personal data of persons against whom preparatory or court proceedings are pending, as well as the image and other personal data of witnesses, victims and victims, unless these persons consent to it.
[16] www.gov.pl/web/prokuratura-krajowa/wnioski-o-uchylenie-immunitetow-sedziowskich-w-tzw-aferze-hejterskiej
[17] Judgment of the Constitutional Tribunal of 28 November 2007, K 39/07, OTK-A 2007/10/129; decision of the Supreme Court of 25 January 2024, I ZI 79/23, LEX no. 3670245
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