of the Assembly of the Representatives of the
Kraków Appellate Judges of 12 October 2018
The Kraków appellate judges uphold the reservations as to the constitutionality of the solutions adopted in the Act of 8 December 2017 amending the Act on the National Council of the Judiciary and certain other acts. Consequently, they uphold the negative assessment that the selection of fifteen people practicing the profession of judge as members of the National Council of the Judiciary and the noticeable connections between them and the Minister of Justice does not guarantee the due performance of their obligations provided for by the Constitution. This gives rise to legitimate concerns about the political subordination of a body which is supposed to protect the independence of the judiciary.
We would like to point out that this state of affairs raises legitimate concerns about the legality of the nomination procedure in which the National Council of the Judiciary plays a key role.
Despite the conviction that has been expressed above, the Kraków appellate judges have decided to fulfil their obligation of expressing an opinion on the candidates nominated for vacancies in the judicial offices.
Firstly, that part of the nomination procedure, which is related to the evaluation of the candidates by the assemblies of judges of the individual appellate courts, does not give rise to legal reservations. Therefore, we are obliged to reliably perform our statutory obligation.
Secondly, the involvement of the appellate judges in assessing the candidates nominated for the vacancies in the judicial offices is an expression of their responsibility for the justice administration and the proper functioning of the courts.
This does not change the fact that the further part of the nomination procedure may be burdened with a defect leading to the results of the contests for the judicial offices being undermined. The executive and legislative authorities are responsible for this state of affairs.
We would also like to draw the attention of the candidates to the fact that they are risking participation in a procedure that gives rise to serious doubts of a constitutional nature related to the possibility of contesting the legality of their assumption of office and the validity of the judgments issued in these conditions.
The Kraków appellate judges express their disapproval of the actions taken by the President of the Republic of Poland, Andrzej Duda, involving handing out the appointments to the nominees to the Supreme Court on 10 October 2018 following a procedure that gives rise to very serious constitutional doubts, despite the injunction applied by the Supreme Administrative Court and the pending proceedings before the Court of Justice of the European Union regarding the Act on the Supreme Court. The actions of the President of the Republic of Poland, which were taken in conflict with the Polish Constitution, are destabilizing the legal situation and reducing confidence in the courts and the judgments they issue. Furthermore, the problem of the President’s liability before the Tribunal of State is becoming a reality.
The Kraków appellate judges express their deep disapproval of the decision of the President of the Regional Court in Kraków, Dagmara Pawelczyk-Woicka:
- on the transfer of Regional Court Judge Waldemar Żurek to a different division of the Regional Court, which was made without substantive grounds and without the legally required opinion of the Council of the Regional Court in Kraków, and therefore in breach of the law;
- to inform the Disciplinary Representative of Judge Waldemar Żurek allegedly having committed a disciplinary delict (tort) by not taking up duties in the new division, before the Judge received a decision from the body fulfilling the function of the National Council of the Judiciary, to which the Judge appealed in accordance with the instructions of the President of the Regional Court.
Following the decisions described in Resolution 2 of the Judges of the Regional Court in Kraków of 26 February 2018, these decisions are a further manifestation of the abuse of rights, discrimination and harassment with respect to the Judge.
Once again, we express our full support and respect for Regional Court Judge Waldemar Żurek, whose attitude sets the standards for the defence of the judicial independence.
We are disconcertedly observing the actions of President Dagmara Pawelczyk-Woicka as a member of the body fulfilling the function of the National Council of the Judiciary, especially involving consulting the Minister of Justice during a secret ballot on candidates to the Supreme Court or the disrespectful statements about the European Networks of Councils for the Judiciary (ENCJ). Such conduct demonstrates her lack of moral and substantive qualifications for holding a post of public trust, including practicing the profession of judge.
The Kraków appellate judges uphold the reservations as to the constitutionality of the solutions adopted in the Act on the Supreme Court of 8 December 2017 and the Act on the amendment to the Act on the National Council of the Judiciary and certain other acts of 8 December 2017, the result of which is a lack of transparency and the politicization of the process of selecting candidates to the office of Supreme Court judge.
One of the manifestations of the defectiveness of the solutions adopted is the elimination from the nomination procedure of the criteria and mechanisms enabling the substantive appraisal of the candidates. The statutory solutions currently in force do not provide for the assessment of the candidate’s work, including an opinion expressed by the judges. For these reasons, we consider it appropriate to speak up about the judge-candidates from the regions of the given appellate court, particularly with regard to those, whose applications deserve a critical assessment.
We note with amazement and disapproval that Mr. Dariusz Pawłyszcze, judge of the Regional Court in Kraków, nominated himself as candidate to the office of a Supreme Court judge.
Dariusz Pawłyszcze has been performing clerical duties in the Ministry of Justice for more than two years and has recently been holding the post of Director of the Human Resources Department there. In his work at the ministry, he collaborated in the process of restricting the independence of the courts and the impartiality of the judges.
In assuming the position of Director of the Human Resources Department at the Ministry of Justice, Mr. Dariusz Pawłyszcze is jointly responsible for the actions destabilizing the justice system and disorganizing the work of the courts. He is responsible for the shortcomings in ensuring that the courts are correctly staffed. He is responsible for unreasonably interrupting the statutory term of office of the presidents and vice-presidents of the courts and appointing frequently incompetent people in their place, who do not have the appropriate experience to hold managerial positions.
In our opinion, Mr. Dariusz Pawłyszcze does not have the competence and does not meet the substantive criteria required for holding the office of Supreme Court judge. A judge cannot be considered a suitable candidate, if, in his judicial work, he had a record of upheld judgements at a level of no more than 50%, while 20% of the cases on which he adjudicated were referred back to the court for reconsideration. The judge does not have a judicial history enabling the conclusion to be drawn that he has outstanding legal knowledge.
The fact that he participated in the process of limiting the independence of the courts and destabilizing the justice system places a question mark over the judge’s ethical values.
We conclude that, in these circumstances, the choice of Mr. Dariusz Pawłyszcze – a person who is subordinated to the Minister of Justice – to the office of Supreme Court Judge would be demoralizing.
The Kraków appellate judges condemn the actions taken by the disciplinary bodies of the ordinary courts appointed in a politicized manner. The unfounded questioning of judges as accused and witnesses, as well as checking the files of cases they handled, especially deserve disapproval.
Judges Krystian Markiewicz, Bartłomiej Przymusiński, Igor Tuleya, Ewa Maciejewska, Olimpia Barańska-Małuszek and Sławomir Jęksa experienced such action recently, while judge Dominik Czeszkiewicz experienced this earlier. They constituted an inadmissible response to judgments issued by these judges or the way in which they were justified, referring enquiries for a preliminary ruling to the Court of Justice of the European Union, participation in legal education of youths and speaking in a public debate in defence of the independence of the judiciary that is under threat. The Prosecutor’s Office is involving itself in the repressive measures against the judges, conducting criminal proceedings against judges Wojciech Łączewski and Agnieszka Pilarczyk in connection with the judgments they issued, as well as the functional judges who distributed the motions to apply pre-trial detention in the case of the so-called “Police scandal”. In turn, the Central Anti-Corruption Bureau was groundlessly inspecting Regional Court Judge Waldemar Żurek’s asset declaration for one and a half years. The activities described above, in connection with the legislative changes, especially regarding the disciplinary judiciary, have the objective of intimidating judges and, consequently, abolishing the independence of the judiciary.
We express our solidarity with and respect for the judges subjected to the repressive measures described above. We simultaneously call on our judicial colleagues to ensure that judicial impartiality continues to be a fundamental value in serving the citizens.
We assess the questioning of approximately 100 judges of the Court of Appeal and the Regional Court in Kraków by the Internal Affairs Department of the National Public Prosecutor’s Office to be an unacceptable waste of public funds, as we consider this to be a retaliation for the adoption of resolutions by the judges of these courts in meetings of judges condemning the degrading and inhumane treatment of judge Krzysztof Sobierajski in the prison in Rzeszów. As the actions of the Prosecutor’s Office are irrelevant to the resolution of the case, we consider them to be a politically motivated attempt to intimidate the Kraków judiciary.
The Kraków appellate judges call on all judges to actively and universally involve themselves in promoting constitutional values, including by holding educational classes for school pupils, as well as participating in the Constitutional Week on 19–26 November 2018.
The Kraków appellate judges again draw attention to the acts and omissions of the Minister of Justice and the legislative authority, which adversely affect the functioning of the courts. The following should be highlighted in particular in this regard:
- the non-performance by the Minister of Justice of the statutory obligation to announce judicial vacancies for more than two years, including the continued failure to announce such vacancies in the Kraków Court of Appeal; the consequence of this omission is a significant increase in the burden on the judges and an extension of the duration of court proceedings;
- the failure to take steps to ensure that there is a sufficient number of referendaries, judge assistants and judicial officials;
- the introduction of legislative changes in the functioning of the courts, which are in conflict with the basic principles of the constitutional order;
- the introduction of legislative changes disorganizing the work of the courts, including on the so-called random assignment of cases and the introduction of frequent changes in the provisions regulating the internal organization of courts;
- the formulation of untrue statements in public space, which discredit judges, pursuing bad intentions, the result of which is not only a reduction in the authority of the judiciary, but also trust in the State;
- the dismissal of competent people from office before the expiry of their term of office on the basis of discretionary premises and the failure to appoint successors in their place, or the appointment of people without sufficient substantive skills, but purely by applying the criterion of affiliation with ministerial officials – which results in a disruption of continuity in the functioning of the courts, a reduction in the quality of administrative activities to ensure the correct operation of the courts and an imbalance between the judiciary and the executive authority.
We conclude that this type of activity is resulting in a continuous deterioration in the results of the work of the courts, an increasing backlog and a longer time for considering pending court proceedings. We are noticing a phenomenon of increased chaos in the work of the courts and the disorganization of the justice administration.
We obligate the President of the Court of Appeal in Kraków to post these resolutions on the Court’s website and to forward them to the President of the Republic of Poland, the Minister of Justice, the Chairperson of the National Council of the Judiciary, the First President of the Supreme Court and the Presidents of the Appellate and Regional Courts. We simultaneously authorize associations of judges to publicize the content of this resolution by sending it to the entities mentioned above, and to translate points 1–4 of the resolution into English, and then send the translations to foreign organizations, institutions, foundations, associations dealing with the monitoring of the rule of law and the protection of the independence of the courts and the impartiality of the judges, in particular: National Councils of the Judiciary of the European States, the Court in Strasbourg, the Court in Luxemburg, the Consultative Council of European Judges (CCJE), the European Networks of Councils for the Judiciary (ENCJ), the Foundation ‘Judges for Judges’, the American Bar Association (ABA), the Venice Commission (European Commission for Democracy through Law), the European association of judges and public prosecutors (MEDEL – Association of European Judges for Democracy and Liberty), the European Association of Judges (EAJ), the International Association of Judges (IAJ), the International Commission of Jurists (ICJ), the Council of Bars and Law Societies of Europe (CCBE), the Association of European Administrative Judges (AEAJ), the OSCE Office for Democratic Institutions and Human Rights (ODIHR), Mr. Nils Muizhneks – Council of Europe Commissioner for Human Rights, Mr. Diego Garcia Sayan – Special United Nations Rapporteur on the Independence of Judges and Lawyers, the United Nations Human Rights Council (UNHRC), Amnesty International, United Nations Interregional Crime and Justice Research Institute (UNICRI), the European Law Institute (ELI), Central and East European Law Initiative (CEELI Institute) and United States Agency for International Development (USAID).