Rzeszów, 4 October 2018

President

of the Regional Court

in Rzeszów

Further to the oral instructions given to Regional Court Judge Bożenia Przysada on 3 October 2018 to provide answers to the questions of the Central Court of Investigation No. 002 in Madrid regarding the European Arrest Warrant in case II Kop 84/17, we, the undersigned judges of the Second Criminal Division and the Third Penitential Division of the Regional Court in Rzeszów, declare that:

1. There are no legal grounds to obligate any of the judges, including a judge who is a member of the Court adjudicating in the case of issuing the EAW, to provide responses to these questions. The only provision that could theoretically constitute the grounds for such an obligation, namely Article 607d § 3, in connection with § 2 of the Criminal Procedures Code, is not applicable in this case for three reasons. First, this provision requires the prosecutor to provide answers to questions asked by the State executing the order at the stage of preparatory proceedings, and not the Regional Court. Second, the letter from the court in Madrid does not contain elements giving it the status of a procedural document, thereby making the need to apply the provisions of the Criminal Procedures Code and provide responses in this procedure applicable. Third, the letter applies to constitutional issues, which directly arises from its content, in which case the court, which operates through its authorities, in this case the court president, who, in accordance with Article 22 § 1, item 1 of the Act on Ordinary Courts, manages the court and represents it externally, is competent and obliged to provide a response.
2. The competence of the president of the court arising from the above provision cannot be equated to the “administrative factor” which was referred to in the official note dated 02/10/2018.
3. However, guided by the concern for the good of the justice system and the image of the Regional Court in Rzeszów, we are presenting our position in response to the questions asked by the Spanish court:

Ad 1

We are all aware of the case of the prominent Rzeszów public prosecutor, who recently tried to influence a Regional Court judge to force a change in a decision in a case, which is obviously in conflict with his impartiality. We are not aware of any other cases of influencing impartiality, which does not mean that our knowledge is complete. Notwithstanding individual experience, we would like to draw attention to the changes in the normative environment of the courts, referring to the external aspect of impartiality. The latest amendments to the law have resulted in a significant increase in the influence of the Minister of Justice – Prosecutor General over the judicial authorities.

• the Minister of Justice is able to dismiss the president or vice-president of a court, among other things, in the case of “the persistent failure to perform official duties” or finding “particularly low effectiveness of activities regarding administrative supervision or the organization of the work in the court or lower courts”, which are vague and general criteria and allow for arbitrary decisions;
• there are no clear criteria which have to be followed by the Minister of Justice when appointing the president of the court, although the choice of president may vetoed by the National Council of the Judiciary by a 2/3 majority of votes, although 15 out of 25 members of the National Council of the Judiciary are appointed by the Sejm with a simple majority;
• the Minister appoints and dismisses the court director (who is the official head of the officials employed at the court) and is also his official superior, whereas the directors were previously appointed at the request of the court president, after conducting a contest, and only dismissed in the cases specified by statute.

Ad 2

In accordance with Article 180 of the Constitution, judges are irremovable. The provisions of the Constitution of the Republic of Poland and further specific provisions do not provide for the performance by judges of tasks of the justice administration on the principles of a term of office. According to Article 179 of the Constitution of the Republic of Poland, “Judges are appointed for an indefinite term by the President of the Republic of Poland at the request of the National Council of the Judiciary”, whereas, according to Article 180 of the Constitution of the Republic of Poland “A judge may be recalled from office, suspended from office, transferred to another bench or position against his will by a court judgment and only in those instances that are prescribed by statute” as in the case of disciplinary liability (as will be discussed in the response to the fourth question).

In practice, the government can remove judges by manipulating the laws governing retirement, an example of which is the reduction in the retirement age in the new Act on the Supreme Court and the regulations on the structure of the courts.

Ad 3

According to Article 47a § 1 et seq. of the Law on the system of ordinary courts, cases are assigned to judges and assessors drawn at random, within individual categories of cases, unless the matter is to be assigned to a judge on duty.

The composition of the court may only change if it is impossible to consider the case in the composition to date or in the case of a long-term obstacle to considering the case in the composition to date. The exclusion of a judge and jurors is governed by the provisions of Article 40 § 1 of the Criminal Procedures Code, which apply to the exclusion of a judge from participation in a case by law. However, Article 41 of the Criminal Procedures Code governs the exclusion of a judge on a motion.

The court, before which the case is pending, then adjudicates on the exclusion of the judge.

Cases were allocated to judges to date in a simple, transparent manner, which contained an element of randomness and was easily verifiable. This has been replaced by a system administered by the Minister of Justice, who, despite requests from non-governmental organizations, has not disclosed the algorithm to date. Furthermore, the legal act regulating the system provides for a number of exceptions, which, in most cases, lie at the discretion of the President.

Ad 4.

Judges adjudicating on disciplinary matters in the first instance are appointed by the Minister of Justice after the receipt of a non-binding opinion from the National Council of the Judiciary. Disciplinary judges in the Disciplinary Chamber of the Supreme Court are recommended by the National Council of the Judiciary (the majority of whom are elected by politicians).

The Minister also appoints the Disciplinary Prosecutor for the Judges of the ordinary courts and his deputies. The Prosecutor and his deputies may take over any case handled by another prosecutor and this decision is binding on the latter. Any judge of the ordinary courts or the Supreme Court may be the disciplinary prosecutor of the Minister of Justice and the method and criteria of choosing him are arbitrary.

The minister may submit an objection to such a decision and then the representative is required to continue handling the proceedings and fulfil his instructions.

Judges may be re-tried in cases that were previously discontinued. The limitation period for disciplinary delicts (torts) has also been extended to as much as eight years.

The Regional Court in Łódź referred questions to the EU Court of Justice for a preliminary ruling on the regulations on disciplinary proceedings in August 2018.

Judges of the ordinary courts are summoned to a hearing about their public statements regarding laws, the functioning of constitutional bodies, or even their participation in debates at a festival organized by the Great Orchestra of Christmas Charity Foundation.

In some respects, judges have fewer rights in disciplinary proceedings than the accused in criminal proceedings. And thus, unlike in criminal proceedings, disciplinary proceedings may also be progressed during the justified absence of a judge, while the court of the second instance can punish a judge acquitted by the court of the first instance (this is not possible in criminal proceedings).

An outstanding and undisputed authority of legal science and practice pointed out that “although formally assigned to the Supreme Court, the Disciplinary Chamber has all the features of an exceptional court (narrowly defined cognition regarding the subject matter and the individual, organizational separation, a special procedure of appointment, a separate budget and a separate President, who is independent of First President of the Supreme Court). Article 175, para. 2 of the Constitution of the Republic of Poland only provides for the ability to appoint such a court during wartime. For this reason alone, the operation of this Chamber constitutes a breach of the Constitution of the Republic of Poland. In turn, the gross defectiveness of the process of appointing the “judges” of the Disciplinary Chamber (the lack of the prime minister’s countersignature, the lack of constitutionality of the authority presenting the candidates to the Chamber to the President) means that the people appointed to adjudicate in the Disciplinary Chamber do not satisfy the constitutional criteria of non-defective appointment to the post of judge.[1]” This position also reflects our thoughts and gives rise to concern about meeting the standards arising from Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.

Copy for information: judges of the Regional Court in Rzeszów

Rzeszów, 5 October 2018

President

of the Regional Court

in Rzeszów

Please note that an error was made in our letter of 4 October 2018 regarding the responses to the questions regarding the EAW. Judge-members of the National Council of the Judiciary are elected by the Sejm with a 3/5 majority.

[1] Quotation derives from the comment of Włodziemierz Wróbel, professor of law at the Jagiellonian University, Justice of the Criminal Chamber of the Supreme Court