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“Enslaved courts = enslaved people.” PiS hasn’t given up on its bid to control Polish judges ǀ View

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Alina Czubieniak’s name should never have become news. Ms. Czubieniak is an appeals court judge in Western Poland, and judging from the even-handed way she has dealt with the controversy outside her courtroom, and the law within it, she is probably quite a good one.

Judge Czubieniak became a part of the news cycle when a new judicial discipline committee – created by the ruling party in 2018 – made her the 28th judge to face investigation and possible sanctions.

Her infraction: overturning the detention of a man held on sexual misconduct charges in the run up to his trial. The man should be released, she ruled, because he didn’t have a lawyer at his pre-trial detention hearing.

In normal times, this rote application of procedural law would have been hardly noticed in Polish legal circles.

“This is an apolitical case,” said Malgorzata Szuleka from the Polish Helsinki Foundation for Human Rights, a civil society organization based in Warsaw. “Judge Czubieniak was not offering an opinion. She was simply following procedure.”

Czubieniak’s case is particularly troubling, experts say, because it targets the judge for a ruling she made inside the courtroom on a case that seemed entirely apolitical.
Yervand Shirinyan
Deputy Director at Open Society Foundations

The Law and Justice Party (PiS), who has been in government in Poland since 2015, has weakened the power and ability of judges to enforce the law by creating a politically motivated disciplinary committee that can investigate judges for not adhering to the ruling party’s agenda.

“I’m worried about the young judges who see this,” Czubieniak told Reuters. “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.”

Prior to Judge Czubieniak’s case, the disciplinary committee brought charges against judges whose activities outside the courtroom it considered inappropriate. For instance, in one well-known case, a judge was brought before the committee after arguing for the independence of the judiciary at a rock festival.

Czubieniak’s case is particularly troubling, experts say, because it targets the judge for a ruling she made inside the courtroom on a case that seemed entirely apolitical.

The case that she ruled on appears to have “caught the attention” of the government because the accused man - who had an intellectual disability and could not read or write - was charged with kissing and touching a minor inappropriately.

The notion the government stands for a state where all children are safeguarded is a first principal of the Law and Justice (PiS) platform. Czubieniak’s case appears to be one where the ruling party could pursue its twin goals of affirming its commitment to children, and intimidating judges, experts say.

“The government is trying to micro-manage the courts to ensure they ascribe to a political agenda,” Szuleka from the Poland Helsinki Foundation said. Czubieniak’s case arises against the backdrop of a growing web of new laws and administrative bodies that the ruling party has put in place to consolidate oversight of the judiciary in the hands of one man: Zbigniew Ziobro, the Justice Minister.

Investigators for the committee are appointed by the ruling party. It targets whomever it chooses to target, with little or no disclosure about how it operates or the reasons why it chooses as it does.

Meanwhile, other so-called reforms of the judiciary include what many are calling a purge of the country’s top justices. A new law – sponsored by PiS – would establish a mandatory retirement age for Supreme Court judges, forcing 27 of the country’s 72 Supreme Court judges (including the court’s president) to retire. Nationwide protests and the threat of sanctions from Brussels appear to have temporarily curbed the government’s enthusiasm for this new law, but experts say there is strong reason for continued concern.

“A legal institution, which was originally intended to protect and preserve the rule of law, has been distorted into something completely different, a sad caricature of its real function,” wrote Piotr Mikuli, a Professor of Law at Poland’s Jagiellonian University in Kraków. “To disguise this, new regulations on disciplinary procedures are advertised as being more democratic, more transparent and more just. However, their aim is clear: to accumulate power and to enslave judges to politicians.”

The long-term impacts of these changes are unclear. As The Economist wrote in an editorial, “once hollowed out, the rule of law is hard to restore.” As for the judges themselves, they have rallied around Czubieniak, holding demonstrations in solidarity with her at 24 courthouses around the country.

They often conclude with a few dozen suited jurists standing in front of their courthouses holding signs. ‘Enslaved courts = enslaved people’ read one giant sign in Poznan, for example. The judges also can be seen wearing t-shirts (now sold on Amazon) saying ‘Konstytucja’ which means Constitution in Polish. The images have been widely shared on social media.

The case Judge Czubieniak ruled on never went to trial. But while the case was discontinued, the disciplinary proceeding against her went forward regardless. In interviews after facing the newly-formed disciplinary board, she called the proceedings “a hoax” and “a tragicomedy.” The disciplinary board responded by filing new charges against the judge, saying her comments undermined the dignity of the judge’s office.

“This isn’t about the law - or the safety of children,” Szuleka of the Polish Helskinki Foundation said. “It’s about who has power. And it’s about standing up for a system of government that keeps the creeping authority of the ruling party in check.”

Yervand Shirinyan is the Deputy Director at Open Society Foundations, which supports independent groups working for justice, democratic governance, and human rights in 120 countries.

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