The illegal disciplinary chamber is working again. And has suspended Judge Ferek for applying EU law
Mariusz Jałoszewski, oko.press, 16 November 2021
Link to the original publication in Polish:
The Disciplinary Chamber wants to return to work at full steam. As a first step, it has suspended Judge Maciej Ferek for implementing the judgments of the CJEU and the ECtHR. The Chamber’s decision is a clear breach of the CJEU’s interim measures.
No one expected this. Judge Maciej Ferek of the Regional Court in Kraków was suddenly suspended by the illegal Disciplinary Chamber on Tuesday 16 November 2021. The Chamber also reduced his salary by as much as 50%. The decision was made by a three-member Chamber: RyszardWitkowski rapporteur in the case and presiding judge of the panel (a former prosecutor), Jacek Wygoda (a former prosecutor) and juror Michał Górski.
Maciej Ferek is the first judge suspended by this Chamber in many months. Because consideration of such cases was frozen by the CJEU’s interim measures of April 2020 and July 2021. Therefore, the decision of the illegal Chamber in the case of the Kraków judge has come as a surprise. All the more so that similar cases of three other judges were shelved in the secretariat of the First President of the Supreme Court, Małgorzata Manowska, who stopped the flow of new cases to the Chamber.
It is perplexing why the case regarding Judge Ferek’ssuspension was also not shelved, but went straight to the Chamber, the president of which, Tomasz Przesławski, allowed it to be heard. The question arises as to whether Małgorzata Manowska knew about this and whether she gave her consent. Because the Chamber’s decision directly breaches the CJEU’s interim measure of 14 July 2021. We wrote about this interim measure in OKO.press:
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It cannot be ruled out that the Disciplinary Chamber took advantage of the turmoil in the Supreme Court. Because Małgorzata Manowska’s order suspending the inflow of new cases to the Chamber stopped being effective on Tuesday 16 November. The order constituted the partial implementation of the CJEU rulings of July 2021. And as late as Tuesday afternoon, it looked as if the Chamber had now been given a free hand to hear all cases and move full steam ahead. But at around 4 pm, information suddenly appeared that Manowskahad extended her order until 31 January 2022. However, she did this after Judge Ferek had already been suspended, but this only applies to cutting off the inflow of new cases to the Chamber. Even so, the Chamber is still operating. It has cases scheduled for the coming days, even several per day.
What Judge Ferek was suspended for
Judge Maciej Ferek is surprised at the decision to suspend him and reduce his salary by as much as half. This is because he did not know about the session in the Chamber, and he found out about the decision from OKO.press. ‘This is a secretly operating court giving the defendant no chance of defence. It arises from the Act on the Structure of Ordinary Courts that, in cases of this type, they can notify the party about the session, but they don’t have to, because it is held without the involvement of the parties,’ Maciej Ferek tells OKO.press.
He adds that the Chamber’s decision is ‘a breach of the legal rules of a democratic state of law and a clear breach of the CJEU’s interim measure of 14 July 2021. One day, someone will be held criminally liable for this. Not only the president of the court who previously ordered a break in my adjudication, but also those who suspended me.’ The judge announces that he will appeal against this decision. His defence counsels in this case were legal judges of the Supreme Court – MichałLaskowski, President of the Criminal Chamber, and Piotr Prusinowski, President of the Labour and Social Insurance Chamber.
Judges from Toruń supported the suspended Judge Maciej Ferek. Photo From Iustitia’s Facebook profile.
Maciej Ferek was suspended for implementing the judgments of the CJEU and ECtHR of July 2021. In them, the courts questioned the legality of the Disciplinary Chamber and the new, politicised National Council of the Judiciary, as well as the nominations it had given for judges. And Judge Ferekmade reference to these judgments in three rulings – one in July and two in October 2021. In them, he challenged earlier rulings that had been issued with the involvement of neo-judges, namely judges nominated by the new NCJ. Judge Ferek also disregarded the judgment made by Przyłębska’sConstitutional Tribunal issued with the involvement of stand-in judges. We wrote about this in OKO.press:
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Raid by Ziobro’s people on judges from Kraków. Judge suspended for applying EU law 23 OCTOBER 2021 |
Ziobro’s nominees are prosecuting Judge Ferek
Judge Ferek experienced swift reprisals for implementing EU law. Dagmara Pawełczyk-Woicka, President Regional Court in Kraków, a nominee of Minister Ziobro and a member of the new NCJ, removed him from adjudication for a month on 23 October 2021. Pawełczyk-Woicka was the first to breach the CJEU’s interim measure of 14 July 2021. Just to reiterate, at that time, the CJEU suspended, among other things, the activities of the Disciplinary Chamber and the provisions of the unconstitutional Muzzle Law. This is about the regulations passed by PiS allowing judges to be punished for contesting the legality of neo-judges and institutions appointed and staffed by PiS. We wrote about them in OKO.press.
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Softening? Free jokes. There are new repressions. A disciplining act, paragraph by paragraph 21 DECEMBER 2019 |
But this was only the start of the reprisals. Because, on 5 November, the deputy disciplinary commissioner for judges, the ‘famous’ Przemysław Radzik – also a nominee of Minister Ziobro – pressed three disciplinary charges against the judge. The charges are for the same three rulings that the president of the court did not like. Radzik qualified the questioning of the status of the neo-judges with reference made to the judgments of the CJEU and the ECtHR as overstepping his powers. While pressing the charges against the judge, Radzik also breached the CJEU’s interim measure of 14 July. We wrote about this in OKO.press:
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Judge Ferek was charged for applying EU law. This is a clear breach of the CJEU’s interim measure 6 NOVEMBER 2021 |
And this interim measure has now been breached by the panel of the illegal Disciplinary Chamber – Jacek Wygoda, Ryszard Witkowski and juror Michał Górski. All of them could be held criminally liable for this in the future – for overstepping their powers – as well as on disciplinary charges.
‘When a judge issues rulings – within his powers – this cannot be a reason to remove him from adjudicating and to initiate disciplinary proceedings against him. Because any judge who is not liked can be removed on this basis,’ Judge Ferek tells OKO.press.
Who is being prosecuted for implementing EU law
Judge Maciej Ferek is not the only independent judge being prosecuted for implementing the recent ECtHR and CJEU judgments and for challenging the status of neo-judges. Like him, the following judges have been suspended for a month in recent weeks:
– Adam Synakiewicz of the Regional Court in Częstochowa. He filed several dissenting opinions to judgments in August 2021 in which he questioned the legitimacy of neo-judges. He also overturned a judgment issued by such a judge for the same reason. He was personally removed from adjudicating for a month by Justice Minister Zbigniew Ziobro for this. The judge has now returned to work. Regardless of this, Disciplinary Commissioner Przemysław Radzik pressed seven disciplinary charges against him.
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Judge Synakiewicz is being prosecuted for applying EU law, Gąciarek is being prosecuted for a conference with Bodnar 23 SEPTEMBER 2021 |
– Marta Pilśnik from the District Court for Warsaw-Śródmieście. The judge released an accused prosecutor from custody. Because she ruled that the Disciplinary Chamber had not effectively lifted his immunity. Minister Ziobro personally suspended her for a month for this. The judge has now returned to work.
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Ziobro at war with the EU. He suspended another judge for implementing the CJEU and ECtHR judgments 15 SEPTEMBER 2021 |
– Piotr Gąciarek from the Regional Court in Warsaw. He refused to adjudicate with a neo judge. He was suspended for a month for this by the court’s president, Piotr Schab, a nominee of Minister Ziobro. The judge has now returned to work.
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Important. Judge Piotr Gąciarek was suspended by Ziobro’s nominee for implementing EU law 13 SEPTEMBER 2021 |
– Agnieszka Niklas-Bibik from the Regional Court in Słupsk. She is the first judge who was suspended after Poland was fined €1 million per day for failing to comply with the CJEU judgment of 15 July 2021. Niklas-Bibik was suspended by the court’s president, Andrzej Michałowicz, a nominee of Ziobro’s ministry, who, together with his wife Joanna Kołodziej-Michałowicz (a member of the new NCJ) was promoted under the current government. The judge was punished for overturning a judgment passed by a neo-judge and for requesting preliminary rulings of the CJEU regarding, among other things, the removal of judges from adjudication. Niklas-Bibik is on suspension.
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Judge Niklas-Bibik suspended for applying EU law and for requesting preliminary rulings of the CJEU 30 OCTOBER 2021 |
– Maciej Rutkiewicz of the District Court in Elbląg. He was suspended several days ago for a month by the president of the Elbląg court, Agnieszka Walkowiak, a nominee of Ziobro’sministry. This is punishment for the fact that he dismissed the case of the prosecutor who supervised the Amber Gold investigation. The judge dismissed the case because he found that the Disciplinary Chamber could not effectively lift the prosecutor’s immunity. Maciej Rutkiewicz referred to the judgment of the CJEU of 15 July 2021, in which the legality of the Chamber was questioned.
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Judge Rutkiewicz from Elbląg suspended for applying EU law. Despite the CJEU interim measure 9 NOVEMBER 2021 |
It should also be remembered that Judge Paweł Juszczyszynof the District Court in Olsztyn was suspended for applying EU law. He was suspended in February 2020 by the illegal Disciplinary Chamber because he wanted to implement the CJEU judgment of November 2019. On its basis, he demanded the presentation of letters of support to the new NCJ to examine its legality. Juszczyszyn is the first judge suspended in Poland for the longest time. He is still not adjudicating.
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Disciplinary Chamber tries to silence Juszczyszyn. It suspended him from his duties as a judge and cut his salary 4 FEBRUARY 2020 |
In addition, Judge Igor Tuleya from the Regional Court in Warsaw, who the National Prosecutor’s Office wants to prosecute for allowing journalists to attend the announcement of a ruling that was unfavourable for PiS, is still suspended.
Why Maciej Ferek was suspended by the Chamber
All judges suspended for a month for applying EU law risk further suspension, even for years, in the same way that Judges Juszczyszyn and Tuleya were suspended. Because a month’s suspension does not end the matter. The disciplinary commissioner then steps in and initiates explanatory or disciplinary proceedings. The Disciplinary Chamber then decides on whether to suspend the judge further in accordance with the Act on Courts. The initiation of proceedings by the disciplinary commissioner allows for the continued suspension of a judge by the Chamber until the disciplinary case ends with a final judgment. Which, in practice, can last many years.
The problem is that, according to the CJEU judgment of 15 July 2021, the Chamber should have been liquidated and, according to the CJEU interim measure of 14 July 2021, it should suspend its adjudicatory work. But the Chamber is still operating. Because the government has not implemented the CJEU judgment. While Małgorzata Manowska, who is performing the functions of the First President of the Supreme Court, has only partially frozen the work of the Chamber (she issued an order which expired on 15 November), cutting off the flow of new cases to it. The Chamber is still hearing cases it had received earlier – in breach of the CJEU’s interim measure. We wrote about this in OKO.press:
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The illegal Disciplinary Chamber breached the CJEU ruling and allowed the prosecution of a Supreme Court judge 23 SEPTEMBER 2021 |
For these reasons, the Chamber is not considering cases of the suspension of judges. This means the earlier motions of Minister Ziobro’s disciplinary commissioners and the last three cases passed on by Minister Ziobro and the President of the Regional Court in Warsaw, Piotr Schab. They apply to Judges Adam Synakiewicz, Piotr Gąciarek and Marta Pilśnik, who were suspended for a month for implementing the judgments of the ECtHR and the CJEU. MałgorzataManowska referred two of these three cases to the Disciplinary Chamber. But when this Chamber set the dates for the hearings, Manowska suddenly demanded the return of the files. And they may be lying in her secretariat to this day. At that time, Supreme Court Press Officer Aleksander Stępkowski explained to OKO.press that the Chamber received the files only to register the case and possibly to transfer them to disciplinary courts at courts of appeal. We wrote about this in OKO.press:
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Chaos in the Supreme Court. Manowskablocked the suspension of Judges Synakiewiczand Pilśnik despite Ziobro’s wishes 18 OCTOBER 2021 |
So why did the Chamber quickly suspend the Kraków judge? It arises from the information established by OKO.press that the case was referred to the Chamber by the president of the Kraków court, Dagmara Pawełczyk-Woicka. It was registered at the end of October 2021. The question is whether Małgorzata Manowska knew about this case and accepted the setting of the date of its examination. Because, at that time, her order was in force and – like other cases regarding suspension – after being registered in the Disciplinary Chamber, the case should have returned to her and should have been shelved.
Unless, of course, they wanted to put on a show and suspend the judge to intimidate other judges. And this was done at a time when Manowska’s order was not in force for a dozen or so hours (it was extended after the judge was suspended). OKO.press established that the cases for the further suspension of other judges – Agnieszka Niklas-Bibik and Maciej Rutkiewicz – have not yet reached the Supreme Court.
Judges from Kraków supported suspended Judge Maciej Ferek. Photo Kraków judges.
Transfer as punishment for applying EU law
Judges are not only being suspended for implementing ECtHR and CJEU judgments. They are also being transferred for disciplinary reasons to other divisions of the court. This is done by court presidents, nominees of Minister Ziobro. This has happened to Judges:
– Maciej Czajka, Beata Morawiec, Wojciech Maczugaand Katarzyna Wierzbicka from the Regional Court in Kraków. They were transferred in October 2021 for issuing a statement that they would challenge the status of neo-judges. They referred to the judgments of the CJEU and the ECtHR. Judge Czajka was punished most severely because he was purposefully transferred to the civil division after 20 years in the criminal division. However, in the last few days, Judge Czajka was transferred back to the criminal division, although not to the one in which he had worked for many years.
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A judge from Kraków was transferred by a Ziobro nominee on disciplinary charges. Because he wants to apply EU law 22 OCTOBER 2021 |
– Piotr Gąciarek from the Regional Court in Warsaw. He was transferred from the criminal division to the executive division in May 2021. This is a punishment for having issued a statement that he would not adjudicate with a neo-judge. He made reference to the judgments of the European courts.
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Ziobro’s people want to silence Judge Gąciarek for defending the free courts and Igor Tuleya 29 MAY 2021 |
– Agnieszka Niklas-Bibik from the Regional Court in Słupsk. She was transferred in October 2021 for overturning a judgment passed by a neo-judge. The judge referred to the judgments of the European courts.