of the Board of the “Themis” Judges’ Association of 29 December 2020
on unlawful pressure on Kraków judges
in connection with the proceedings in the case of prosecutor Mariusz Krasoń
The Management Board of the Association of Judges ,“Themis”, expresses its firm objection to the unlawful and unacceptable attempts of the prosecutor of the Internal Affairs Department of the National Prosecutor’s Office, Piotr Myszkowiec, to exert pressure on 3 judges of the Kraków Court of Appeal, 4 judges of the Regional Court in Kraków and 5 judges of the District Court for Kraków-Śródmieście in association with the examination by the judges of cases related to the reinstatement of Prosecutor Mariusz Krasoń to his former position. The above action of summoning judges as witnesses in the case of the alleged abuse of powers and the failure to fulfil obligations by the public officials (Article 231 § 1 of the Penal Code) is an unparalleled attempt to put pressure on independent judges by the politicized prosecution service, especially since the judge-rapporteur of the main case was also summoned under the said procedure
Prosecutor Krasoń is not only a member of the “Lex Super Omnia” Prosecutors’ Association, which is fighting to return to the model of an independent prosecutor’s office, but also the author of a critical resolution adopted in May 2019 by the Assembly of Prosecutors of the Regional Prosecutor’s Office in Kraków, signalling that political pressure is being exerted on prosecutors. These actions meant that he became an inconvenient person for the authorities of the politicized prosecutor’s office, as a result of which, as part of his harassment, he was unjustifiably moved to a place of work located 200 kilometres from his place of residence, and he appealed to the Kraków court against the transfer decision.
We express the legal view that the Prosecutor Piotr Myszkowiec’s actions described above can constitute a crime under Article 231 of the Penal Code (abuse of powers by a public official) and Article 232 § 1 of the Penal Code (influencing official activities of the court with unlawful threats). In this context, we would like to point out that an unlawful threat is not only the threat of committing a crime, but also the threat of causing criminal proceedings, if it is not intended to protect the law breached by the crime (Article 115 § 12 of the Penal Code). It is no coincidence that, of the hundreds of civil cases held each week, the aforementioned prosecutor planned to question judges from 5 different benches in proceedings regarding the reinstatement of prosecutor Krasoń. Such action is not intended to actually combat crime, but is an example of ‘trawling’ intended to intimidate the judiciary and exert an influence on a judge adjudicating in the main case. Such action by the prosecutor’s office deprives citizens of the right to have their case examined by an independent and impartial court, breaching Article 45, para. 1 of the Constitution. This case shows that the politicized prosecutor’s office is able to initiate proceedings against any judge in Poland without any factual basis, if his ruling is inconvenient for the authorities.
We are aware that, in the current legal situation, the prosecutor’s office, headed by an active politician from the ruling camp, is unable to take up fair and impartial criminal proceedings against a prosecutor who is a member of the highest level of that prosecutor’s office. Therefore, we are currently not filing a notice of a crime having been committed. However, we would like to reiterate that no political authority lasts forever, while the statute of limitations for the offence described above is 20 years (Article 101 § 1 , item 3 and Article 102 of the Penal Code).
Even if the former military prosecutor, Piotr Myszkowiec, when taking up groundless and unlawful questioning of judges, acts on the orders of his superiors, this does not eliminate his possible criminal liability, as the so-called “blind bayonet theory”, which frees the executor of an order from liability, has not applied, even in the army, for many years.
We would like to reiterate that this is not the first action of the Internal Affairs Department of the National Public Prosecutor’s Office intended not to prosecute for crimes, but to intimidate the judiciary. In 2018, this unit questioned several dozen judges of the Regional and Appeal Courts in Kraków, which was not justified on procedural grounds, after they adopted a resolution in protest against the degrading and inhuman treatment of the former president of the Court of Appeal in Kraków in prison. It is frightening that such actions are taken up on political demand by the highest level of the prosecutor’s office, the statutory task of which is to “perform tasks of prosecuting for crimes and uphold the rule of law” (Article 2 of the Act on the Public Prosecutor’s Office).
We would like to point out that, in the light of the opinion of the Advocate General of the CJEU, Michał Bobek, of 23 September 2020 (in joined cases C-83/19, C-127/19, C195 / 19, C-291/19, C-291/19, and C397/19) the creation of a special prosecution unit with the sole purpose of prosecuting law enforcement officials may be in conflict with European law, if this action is taken without real and compelling reasons and the unit that is created does not meet the requirement of independence of political factors. In our opinion, the Internal Affairs Department of the National Public Prosecutor’s Office satisfies the above criteria of inconsistency with European law, as, in the light of official data in 2018, after more than two years of operation, it has managed to generate cases against only two judges (of approximately 10,000 judges), and it is directly subordinated to Zbigniew Ziobro, an active politician of the ruling camp, who, simultaneously combines the functions of a super-prosecutor with extensive investigative powers and a deputy of Parliament, in conflict with the Constitution (Article 103 , para. 2 of the Constitution).
In a state governed by the rule of law, judges cannot make decisions regarding civil rights and freedoms with a pistol at their heads in the form of criminal proceedings, with politicians of the power camp holding the trigger. Such methods of forceful control over the administration of justice are typical of authoritarian regimes. Until now, they were unthinkable in a country in the European Union which, according to Article 3 (2) TEU, is to constitute an area of freedom, security and justice.
We simultaneously express our solidarity and our expressions of respect for the persecuted judges of the Kraków courts.
Colleagues, judges, we are with you.