—Piotr Mikuli, Professor and Head of Chair in Comparative Constitutional Law, Jagiellonian University in Kraków, Poland
The close relationship between the political branches of the government and judiciary undoubtedly raises questions about the real level of judicial independence in Poland. By working in tandem with the hijacked National Council of the Judiciary and the Constitutional Tribunal, as well as by strengthening the role of the Minister of Justice, the Polish politicians of the ruling party are exerting influence at almost all stages of appointments, promotions, and disciplinary proceedings for judges. The recently created mechanism of disciplining judges is being used regularly and seems to have intensified.
Until recently, the incumbent Minister of Justice, Zbigniew Ziobro, would merely warn judges that they would suffer consequences, for example, for their attempts to decide on the constitutionality of statutes, or in situations in which, according to him, they are reluctant to obey the law. But recently the oral warnings have escalated into practical implementation. Under the guise of building more transparent and just rules for individual judicial accountability, actions taken by the authorities against judges courageously defending the constitution aim to intimidate the entire judicial system.
Designing new rules regarding disciplinary proceedings of judges was one of the most criticized normative regulations introduced by the Law and Justice (PiS) party. The regulation includes new procedures implemented at the first instance of any disciplinary procedure, and its introduction was accompanied with the establishment of a new Disciplinary Chamber in the Supreme Court, which is supposedly the cornerstone of the whole system. This new chamber comprises judges whose legal status can be questioned as they undergo the nominating procedure conducted by the new, National Council of the Judiciary of which its judicial part has been elected in a flawed procedure. The chamber is, in fact, an independent special tribunal, excluded from supervision by the president of the Supreme Court. The status of the new chamber is so suspect that it can be perceived as an extraordinary court forbidden by the Polish constitution during peacetime (see art. 175, para 2). Furthermore, in disciplinary cases, a bench, in principle, comprises two judges and one lay judge appointed from amongst persons elected to these posts by the second chamber of parliament (the Senate) through a typical political process. The Minister of Justice, in turn, may also appoint the disciplinary prosecutors of the general jurisdiction courts and their deputies, as well as a disciplinary prosecutor ad hoc to formulate an accusation against a judge. Under the new rules, the Minister is also empowered to indicate who from among the courts of appeal judges should play the role of disciplinary judges at the first instance, while disciplinary courts’ presidents are appointed by the head of the abovementionedfvvrtr Disciplinary Chamber. This convoluted design seems to be well thought out in order to tame “rebellious” judges.
Initially, judges who decided in favor of protesters against the government in tenuous judicial trials were intimidated by disciplinary prosecutors by being accused of some trivial oversights committed in their past. However, in the last few months, the use of the new disciplinary procedures has become increasingly bald-faced. Increasingly, the authorities do not appear to be ashamed of their real motives, which are unabashedly political.
Consider the following examples. One of the most well-known and unfairly targeted judges is Waldemar Żurek, a spokesperson of the previously legitimate, and then demolished, National Council of the Judiciary. He was alleged to have committed the disciplinary offense of refusing to hear judicial matters in the new department of a court to which he was transferred by the court president nominated by Minister Ziobro, which he perceived as unfair retaliation. In another instance, Justice Dorota Lutostańska from Olsztyn is at risk of being reprimanded for wearing a t-shirt with the slogan “constitution” to celebrate the 100th anniversary of the independence of Poland. The disciplinary prosecutor launched an introductory proceeding against her because, according to him, she should have recused herself from a trial in which opposition activists werejf accused of a misdemeanor for having decorated a city monument with the same t-shirts. The campaign was organized as a civic protest against the judicial overhaul by the PiS. Disciplinary charges were also slapped against many other judges for their critical statements about the current policies regarding the administration of justice, including in relation to the new National Council of the Judiciary. The deep resentment of the judges was triggered by a Disciplinary Chamber’s ruling concerning Justice Alina Czubieniak. She was reprimanded for her ruling revoking a previous decision on pre-trial detention of a man with intellectual disabilities who allegedly harassed a 9-year-old girl but was deprived of the right to legal aid at the prosecutor’s hearing. This series of events unfolded because matters did not go as hoped by the prosecutors. The latter case seems to be a clear attempt to undermine independent adjudication.
It is worth adding that, currently, other procedural institutions, which are deemed necessary for securing the right to a fair trial in different contexts, are also being used to intimidate judges. For instance, only recently, the prosecutor’s office submitted a motion to recuse a judge from an examination of the legitimacy of applying pre-trial detention simply because he presented a different opinion from that of the prosecutor as to the application of this preventive measure in a similar case.
As we know, one of the characteristic features of the current authoritarianism is that legal institutions or procedures are not simply abolished. On the contrary, they are meticulously misused, and their real meaning is changed; in practice, they are twisted to contradict themselves. As Kim Lane Scheppele argues, authoritarians deploy the law to achieve their aims. This is also akin to what the famous Polish lawyer, Ewa Łętowska, described with regard to deliberate fraudulent labeling, called “Etikettenschwindel” in German, where the public is misled by falsely advertised products. Unfortunately, these practices have become increasingly rampant in Poland. A legal institution, which was originally intended to protect and preserve the rule of law, has been distorted into something completely different, a sad caricature of its real function. To disguise this, new regulations on disciplinary procedures are advertised as being more democratic, more transparent, and more just. However, their aim is clear: to accumulate power and to enslave judges to politicians.
Suggested citation: Piotr Mikuli, Attacking Judicial Independence Through New “Disciplinary” Procedures
in Poland, Int’l J. Const. L. Blog, Apr. 9, 2019, at: http://www.iconnectblog.com/2019/04/attacking-judicial-independence-through-new-disciplinary-procedures-in-poland/
 Tomasz Tadeusz Koncewicz, From Constitutional to Political Justice: The Tragic Trajectories of the Polish Constitutional Court, VerfBlog, February 27, 2019, https://verfassungsblog.de/from-constitutional-to-political-justice-the-tragic-trajectories-of-the-polish-constitutional-court/, DOI: https://doi.org/10.17176/20190324-205438-0.
 Piotr Mikuli, The Declining State of the Judiciary in Poland, Int’l J. Const. L. Blog, May 15, 2018, at http://www.iconnectblog.com/2018/05/the-declining-state-of-the-judiciary-in-poland.
 Judicial members of the council were, previously elected by bodies of judicial self-government, currently, the first chamber of parliament (the Sejm) elects them what is perceived by the majority of academia as an apparent constitutional infringement of Art. 187 (1) of the Polish Constitution. However the politically captured Constitutional Tribunal ruled on March 25 that the new procedure is in conformity with the constitution. See http://www.startribune.com/top-polish-court-backs-gov-t-legislation-of-choice-of-judges/507613332/.
 Włodzimierz Wróbel, ‘Izba Dysycplinarna jako sąd wyjatkowy w rozumieniu art. 175 ust. 2 Konstytucji RP’, (2019) Palestra 1-2, 17-35.
 Dariusz Mazur, Judges Under Special Supervision, That is “The Great Reform” of the Polish Justice System, Themis Association of Judges, March 5, 2019, http://themis-sedziowie.eu/wp-content/uploads/2019/03/Judges_under_special_supervision_-first-publication-pdf.pdf.
 Kim Lane Scheppele, ‘Autocratic Legalism’, (2018) U. Chi. L. Rev. 85, 545-584.
 Ewa Łętowska, Bezsiła Rządów Prawa. Żonglerka Etykietami Przesłania Bezprawie, Oko Press, March 28, 2019, https://oko.press/prof-letowska-bezsila-rzadow-prawa-zonglerka-etykietami-przeslania-bezprawie/