“If you want a picture of the future, imagine a boot stamping on a human face — forever.” This chilling quote from George Orwell’s ‘1984’ serves as a stark warning of the potential consequences of unchecked state power.
The ruling coalition in Poland since December 13, 2023 (which is a symbolic date for Poles – a symbol of the introduction of martial law by the communist military junta in 1981), which includes the Civic Coalition, the Left, the Polish People’s Party and Poland 2050, continues its efforts to reverse all the changes that have taken place in the Polish judiciary in the period 2016-2023. These changes were aimed at eliminating from the judiciary judges issuing repressive sentences during martial law, breaking with the principle of co-optation in the nominations and promotions of judges by the judges themselves and entrusting indirect influence on the nominations to representatives of the sovereign – the Sejm, respecting the principle of apolitical of judges by stigmatizing the statements of judges in the media of a political nature, the introduction of a random allocation of cases to judges to ensure transparency in the procedure for staffing courts in individual cases. Criminal proceedings, often groundless and political, are currently being launched, intended to depress and freeze judges and perhaps even eliminate them from the profession.
In addition, such proceedings publicly discredit judges because they are suspected of committing crimes. And such an accusation is discrediting for a judge. Sometimes, although not always, proceedings end with an attempt to bring criminal charges, but the very conduct of the proceedings puts pressure on judges because they are uncertain for many months. This, in turn, may cause the so-called chilling effect on their daily work – administering justice. The status of the National Council of the Judiciary (from now on NCJ) is being challenged, and its members, who are judges, have been called upon by a resolution of the Sejm to resign and abandon their duties. On June 11, 2024, following a rebuke by the politicized and closely linked to the government association of judges Iustitia, the prosecutor’s office initiated proceedings concerning the abuse of powers and acting to the detriment of the public interest to achieve personal benefit by judges – members of the National Council of the Judiciary in the period from 2017 onwards. The investigation concerns 20 judges whose only fault was applying the law in force in Poland.
A law whose compliance with the Constitution was confirmed by the Polish Court of the last word, which is the Constitutional Tribunal. However, this law is not liked by politicized judges gathered in associations resembling annexes of the ruling parties. It is also not liked by the current government, which, not having a democratic mandate to change this law, is trying to break this law to govern with decrees and resolutions that are not normative in Poland. At the same time, which is logical but unjustified, they initiate investigations against those judges who obey the law. At the same time, the government directly questions that the judgments of the Constitutional Tribunal are of universally binding application and final and ignores them.
The ruling coalition and the current Minister of Justice, Adam Bodnar, do not like, in particular, those judges who, in the years 2016-2023, fulfilled their duties in the Ministry of Justice, the NCJ, serving as presidents of courts or disciplinary officers. There are serious signs that they are being put under surveillance. The prosecutor’s office has seized and familiarized themselves with the correspondence of these judges without the court’s consent and legal grounds, and they are denied the right to challenge these actions in court.
However, the government is going further after the illegal takeover of the highest offices in the prosecutor’s office, where access to offices was denied to legally established prosecutors. Cheered on by enthusiastic judges from politicized associations, whose authorities at the same time lavish appanages in the form of high-paid functions in government commissions and teams, the prosecutor’s office, headed by Adam Bodnar, began a series of unfounded motions to waive immunity to judges it considered its enemies, mainly because faithful to the judicial oath fulfilled their official duties. It should be clarified that, according to the Polish Constitution, a judge shall not be held criminally responsible nor deprived of liberty without prior consent granted by a court specified by statute. The disciplinary court issues a resolution authorizing the prosecution of a judge if there is a sufficiently justified suspicion that they have committed a crime. So far, motions have been filed to waive the immunity of, incl., judges Jakub Iwaniec, Lukasz Piebiak, Przemyslaw Radzik, Michal Lasota, and Piotr Schab.
These conclusions are not sufficiently substantiated. They bear clear signs of repression and are an attack on judicial independence. Their only reason is to break and punish judges who dared to uphold the law. Thus, on June 4, 2024, the prosecutor’s office applied to the Supreme Court for a resolution allowing Judge Jakub Iwaniec to be held criminally liable. It should be noted that cases of this type are generally conducted by private prosecution. This time, the prosecutor decided to relieve the aggrieved party – an influential judge of the District Court, formulating the thesis that the rule of law requires this. The prosecutor wants to charge Judge Iwaniec with committing the crime of repeated slander and public insult using the mass media of a judge […] of such conduct and qualities that could humiliate him in the public opinion and expose him to the loss of confidence necessary to practice the profession of a judge. The insult was to take place on portal X via an anonymous account. The only evidence proving the perpetration of Judge Iwaniec is the opinion of an expert in linguistics, who concluded that Judge Iwaniec is the author of anonymous entries because he is of a similar age as the anonymous hater, has a similar education, and … is interested in cinematography. It has been completely ignored that conclusions are usually formulated not in terms of certainty but probability or exclusion in the case of linguistic opinions. In criminal proceedings, dubio pro reo applies, according to which all doubts that cannot be removed must be resolved in favor of the accused. It is commonly believed that no linguistic opinion is unambiguously conclusive, i.e., it does not go beyond a certain degree of probability.
As noted in the literature, in criminal cases, an expert linguist is often a spokesman for the defense because the only real advantage of a linguistic opinion is the possibility of denying the perpetration. The next act of the play, entitled “The State Prosecutes Its Judges,” took place on June 28, 2024. Invented before the parliamentary elections in 2019 by part of the Polish media and fueled by the then opposition (today the ruling camp) and the judges’ associations supporting it, the so-called “hate speech scandal” was to consist in the creation of a team of judges under the leadership of Deputy Minister Lukasz Piebiak to supervise networks of haters and trolls farms attacking judges from these associations on the Internet. After almost five years of investigation, where unprecedented surveillance of judges, including the former Deputy Minister of Justice Lukasz Piebiak, secured their laptops and phones, control of correspondence and e-mails carried out without the consent of the court, and perhaps also wiretapping or secret searches, the prosecutor’s office showed the effects of its work. On that day, it submitted applications to the Supreme Court for permission to bring several judges to criminal liability, including Lukasz Piebiak, Jakub Iwaniec, and Przemyslaw Radzik.
The basis of individual applications is the thesis that he acted “in an organized criminal group, with Judge Lukasz Piebiak directing its activities.” The group participants were to conduct “actions against judges, including, above all, those gathered in the Association of Polish Judges Iustitia.” “The criminal activity consisted primarily in the unauthorized processing of personal data of judges and the disclosure of information obtained about these judges” to each other. A further goal was to be a public criticism of the aggrieved judges! A total of 44 crimes were attributed to individual judges. This catalog consists only of acts involving the unauthorized processing of personal data or the disclosure to each other of information of an open nature concerning judges – members of associations friendly with the current Minister of Justice. It should be added that the accused judges held positions in the Ministry of Justice, as well as court presidents and disciplinary officers, and were appointed to enforce compliance with the law by judges, which makes internal communication between them obvious. The very idea of attributing judges to participation in a criminal group stimulates the imagination of the average person to fantasize about gangs planning robberies, drug trafficking, perhaps human trafficking, or even a coup d’état.
Meanwhile, which is hard to believe, the prosecutor limits the activities of the group he invented to the alleged violation of the privacy regulations of a few judges,
i.e., public figures from associations that are annexes of the currently ruling parties. With equal panache, the prosecutor could construct a thesis about an organized criminal group engaged in “crossing the road at a red light.” The choice of vocabulary evoking memories of the communist times is also noteworthy. At that time, “defamation of the authorities, ” agitation conducted to undermine the Soviet power,” and even “a hostile position towards the Soviet authorities” were prosecuted. Similarly, a writer could count on just punishment if “taking a hostile position, he made available material containing statements defamatory of the Soviet system and its functionaries.” At the same time, the prosecutor denied the accused judges access to the case files and did not agree to show them any evidence to indicate their actions. In doing so, he ignores the well-established principle in the case law that in the course of immunity proceedings, the judge has the right of defense, including access to the materials submitted by the applicant. The exclusion of access to the evidence attached to the application makes the judge’s right to defense illusory and even makes the defense itself impossible.
Another act of lawlessness took place on July 3, 2024, when the police and the prosecutor’s office forcibly entered the premises occupied by the NCJ. 30 police officers participated in the action, were prevented from observing the search by outsiders, and no request was made for voluntary handing over of things. Still, locks were broken, and judges’ cabinets were ripped open to take the files of cases conducted by disciplinary officers. The damage was estimated at approx. PLN 60,000. In doing so, the introductory provisions of the criminal procedure on the search and seizure of items were violated. The entire action carried out at the headquarters of the NCJ was led by prosecutor Piotr Myszkowiec, who had lost the competition for judicial nomination in front of the same NCJ a few months earlier. After strong criticism in the media of the violent action, reminiscent of the customs of the services of totalitarian states, after demonstrations of citizens protesting against the government’s attempt to take control of the NCJ, the Minister of Justice and his prosecutors decided to find justification for their actions.
On July 9, 2024, the National Prosecutor’s Office announced that it had filed motions with the Supreme Court for permission to prosecute judges Piotr Schab, Michal Lasota, Przemyslaw Radzik, and Jakub Iwaniec for allegedly concealing the files of disciplinary cases they kept, which at the same time constituted a failure to comply with official duties. It should be emphasized that all these judges mentioned above are disciplinary officers at various levels. As part of their professional duties, they conduct specific proceedings concerning specific judges and specific disciplinary offenses committed by them. Because some of these proceedings concerned judges close to the current government, closely cooperating with it, Minister of Justice Adam Bodnar appointed the so-called ad hoc disciplinary officers, whose task was to take over these files and discontinue the proceedings.
A dispute arose between the legal and statutory disciplinary officers and the minister’s disciplinary officers regarding who should handle these cases. It seems that the court should resolve conflicts between judges. Still, the government decided to use the prosecutor’s office and the police equipped with sharp weapons to ensure impunity for friendly judges and then to launch an apparatus of repression against judges. The request for waiver of immunity is aimed solely at oppressing these judges, publicly discrediting them, and damaging their reputation. All these actions are part of the political revanchism of the current ruling coalition.
The challenge of appointing judges in 2018-2023 violates the Polish Constitution’s provisions, which guarantee judges’ irremovability. These actions aim to eliminate judges who were not appointed by judges appointed during martial law or by their successors. In this way, the government wants to ensure judicial favor for introducing dictatorship in Poland. The prosecution of judges with the use of criminal repression only for the fact that they perform their official duties and the search for paragraphs to discredit them is part of the style of conduct of the government, which, announcing the “restoration of the rule of law,” are themselves aware of the illegality of their actions, which is best evidenced by the words of the current Minister of Justice, Adam Bodnar, about the ongoing “searching for a legal basis” for the actions of the government.
Ostentatious attacks on Polish judges are a signal to the entire society that acting under the flag of the rule of law will mean a lack of certainty of tomorrow for everyone. It is obvious that every Polish human being can be subjected to arbitrary treatment by the authorities, can be subjected to a derogatory search, can be charged with imaginary charges or deprived of property and freedom, and even the right to express their own opinions. Thirty-five years after gaining independence, after a great revolt of citizens who wanted freedom, the rule of law, and security, whose dream was to move away from the grim practices of the communist times, Poland is again facing the danger of losing freedom and the rule of law, which is leading our country to chaos, repression, internal riots, and protests.
The destabilization of Poland, especially in the current complex geopolitical situation, will significantly weaken our country, stop its development, and destabilize the political situation in Europe. If we give up now, we will soon forget that “freedom is the freedom to say that two plus two make four. If that is granted, all else follows”.
The quotations used in the text come from G. Orwell, 1984, London, 1949; The Court is Coming. Documents from the trial of A. Siniawski and J. Daniel, Paris, 1966; and the Polish National Prosecutor’s Office announcements.
Konrad Wytrykowski, PhD in law, is a retired judge of the Supreme Court. He was previously a longtime judge of ordinary courts. He has repeatedly helped other judges as a defense attorney in immunity and disciplinary proceedings, and he is also a defense attorney for some of the judges described in the article. The author is a member of the Association of Lawyers for Poland.
