Three years ago, Alina Czubieniak cancelled the temporary arrest of a mentally ill man accused of kissing and touching a minor inappropriately because he did not have a defence lawyer at his detention hearing. She ordered the proceedings to be rerun.

The hearing was repeated, but proceedings were eventually discontinued as a result of the man’s mental condition. But for Czubieniak, a judge in Gorzow Wielkopolski in western Poland, the matter did not end there. In March, she was reprimanded for her decision under a contentious new disciplinary system introduced by the ruling Law and Justice party last year.

The reprimand, which came after a lower disciplinary court had acquitted Czubieniak of any wrongdoing, was the first time that the new system had been used to punish a judge not for misbehaviour outside the courtroom, but for the contents of a decision they issued inside it. The precedent has deeply unsettled Poland’s judges.

“I’m worried about the young judges who see this,” said Czubieniak. “I’m afraid that if they have to issue a ruling in a particularly public case – one which catches the attention of the media or prosecutor, or the government – they will start to wonder ... whether they’ll get in trouble because of it. This is the biggest problem: sentencing judges for merit-based rulings is the end of judicial independence.”

Sparked fears

Czubieniak’s case comes amid a broader struggle over a series of laws passed by Law and Justice that have given politicians, and in particular the minister of justice, Zbigniew Ziobro, immense power over the judicial system. The changes have sparked fears that Poland’s democratic checks and balances are being undermined, and triggered an unprecedented stand-off between Warsaw and Brussels.

Law and Justice insists the changes are needed to overhaul an inefficient system that has not been adequately reformed since the collapse of communism – and which saw itself as untouchable.

“The job of the disciplinary chamber is to apply the same standards to all citizens, and not one standard to those who consider themselves an exceptional caste, and another to those who are ordinary citizens,” said Ziobro last month. The justice minister argued that the body that appoints judges to the disciplinary chamber was “much less dependent on political factors” than its German equivalent.

But critics said the changes – which let the justice minister appoint senior disciplinary officials, and assign specific officials to specific disciplinary cases – create the tools for politicians to bend judges to their will.

Face investigations

Among the judges who face investigations are several who have been critical of the government’s reforms. Igor Tuleya, who spoke about the rule of law at a rock festival last year, faces investigations over comments about the judicial overhaul and questions about it that he sent to the EU’s top court.

Another judge, Dorota Zabludowska, was issued with a demand to explain a possible “disciplinary offence” after she was awarded a prize for promoting human rights by Pawel Adamowicz, the late mayor of Gdansk, who was a liberal opponent of Law and Justice.

“Of course, I am one of the judges that loudly says that these changes are unconstitutional and that they head towards politicising the judicial system,” she said. “So far we still have freedom of speech. But judges who speak out and say uncomfortable things for the ruling politicians and for the judges who co-operate with them have to expect unpleasantness.”

Impact

According to the Justice Defence Committee, a group that represents judges, 27 judges face at least one investigation, and at least 81 proceedings have been launched. But Marcin Matczak, a lawyer and professor at Warsaw University, said it was not the number of cases that mattered most, but their impact on other judges.

“The problem for me is the chilling effect. You don’t measure the impact of the disciplinary chamber on the independence of judges by the number of cases, but by how conspicuous they are, and how public they are,” he said. “It’s the end of the rule of law if judges are afraid of the minister of justice.”

Infringement procedure

In its latest bid to push Poland to change course, the European Commission last month launched an infringement procedure against Warsaw over the changes. “The commission was aware of the need to respond to the outrageous cases of the disciplinary chamber and the new rules,” said one EU official. He added that the procedure was meant to be a “sword of Damocles” hanging over Warsaw and ensure that concerns about the creeping pressure on Poland’s judges from being ignored.

However, Polish officials have dismissed the Brussels move as “political”, noting that Frans Timmermans – who has spearheaded the EU’s probe into whether Poland is undermining the rule of law – is running to be the next head of the European Commission. The government has shown little inclination to back down, and lawmakers from the ruling party have been working on additional changes that will give the new disciplinary chamber even greater powers over the country’s judges.

“In terms of legal theory there’s no difference any more between Poland and the East,” said Tuleya. “We’ve crossed the Rubicon.” – Copyright The Financial Times Limited 2019