- Minister Żurek continues Minister Bodnar’s line of thinking that it is possible to dismiss the Disciplinary Ombudsman for Judges of the Court of General Jurisdiction and his deputies, even though no legal provision allows for this.
- On 31 July, the new minister announced the dismissal of Michał Lasota from the position of second deputy Ombudsman. This decision, which is clearly unlawful, was ignored by the Supreme Court.
- Judge Mariusz Ulman, appointed by Minister Bodnar to the vacant position of Disciplinary Ombudsman, demanded that the National Council of the Judiciary release the disciplinary files by 19 August. Indeed, on that day, two representatives of the Ministry attempted to gain access to the offices of the legitimate Ombudsman and his deputies.
- The above actions of the Ministry constitute clear violations of a number of legal provisions.
Yesterday afternoon, the media reported that two people had appeared at the headquarters of the National Council of the Judiciary, demanding entry to the building.
As it turned out, one of these people was Dominik Czeszkiewicz, a judge seconded to the Ministry of Justice, where he serves as Director of the Department of Administrative Supervision. Together with a second, as yet unidentified person, he was to obtain an access card normally used by couriers delivering parcels to the building and attempt to gain access to the office of the Disciplinary Ombudsman for the Court of General Jurisdiction, Judge Piotr Schab, and his deputies.
But what was the purpose of this attempt? It is yet another manifestation of the Ministry of Justice’s actions, initiated by Adam Bodnar, aimed at the unlawful takeover of the functions of the Disciplinary Ombudsman for Judges of the Court of General Jurisdiction and his deputies.
Minister Żurek is continuing Minister Bodnar’s unlawful line on the possibility of dismissing the Disciplinary Ombudsman for Judges of the Court of General Jurisdiction.
As we have repeatedly reported on our website, the Ministry of Justice decided in April last year to dismiss the Disciplinary Ombudsman for Judges of the Court of General Jurisdiction, Judge Piotr Schab, and his deputy, Judge Przemysław Radzik, from their positions. The problem is that neither the Act on the System of Court of General Jurisdiction, which regulates, among other things, the rules for appointing ombudsmen and the performance of their duties, nor any other act of law contains a provision that would authorise the Minister of Justice to dismiss the Ombudsman or his deputies before the end of their term of office. The Ministry’s action was therefore clearly contrary to the principle of legality (Article 7 of the Constitution – Public authorities shall act on the basis of and within the limits of the law) and thus could not have any legal effect.
However, Minister Bodnar decided to disregard the relevant legal provisions and, following the unlawful decision to dismiss judges Piotr Schab and Przemysław Radzik, announced the appointment of Mariusz Ulman and Tomasz Ładny to replace them. For obvious reasons, this decision also could not have any legal effect, and therefore the Presidium of the National Council of the Judiciary – which, pursuant to Article 112 § 4 of the Law on the System of Court of General Jurisdiction, is required to provide administrative support to the Disciplinary Ombudsman for Judges of the Court of General Jurisdiction and his deputies – issued a statement in which it obliged the President of the Council to continue providing Piotr Schab, Przemysław Radzik and Michał Lasota with administrative services within the Office of the National Council of the Judiciary and to refrain from providing such services to Mariusz Ulman and Tomasz Ładny. The reason for this decision was, of course, that:
It is not possible to appoint further persons to perform the functions [of Disciplinary Ombudsmen for Judges of the Court of General Jurisdiction and their deputies], as the law does not provide for the simultaneous functioning of two Disciplinary Ombudsmen for Judges of the Court of General Jurisdiction and their three deputies.
Despite this, the new minister, Waldemar Żurek, shortly after taking office, decided to continue his predecessor’s unlawful course of action by announcing the dismissal of the second deputy ombudsman, Michał Lasota, from the position of deputy disciplinary ombudsman for judges.
Here, however, the new Minister encountered his first serious setback. Since this dismissal, lacking any legal basis, was just as invalid as the previous attempts to dismiss Piotr Schab and Przemysław Radzik, Michał Lasota continued to perform his duties,participating in Supreme Court hearings on disciplinary matters.
The Ministry decided to respond to this situation with threats, completely ignoring the fact that the alleged dismissal had been carried out in a clearly flawed manner.
However, this was only a prelude to further actions by the new Minister.
Minister Ulman’s aggressive demands
Judge Mariusz Ulman did not contact the National Council of the Judiciary at all during the first two weeks after his alleged appointment. Unexpectedly, however, at the end of July, he changed his position on this matter and asked the President of the Council to ensure that he and his alleged deputy would be provided with services by the National Council of the Judiciary. If this demand was not met, Judge threatened to report the possibility of an unspecified crime.
In response to the publication of the judge’s letter by the President of the National Council of the Judiciary, Judge Dariusz Mazur, Undersecretary of State in the Ministry of Justice, accused her of ignorance of the statutory obligation to provide administrative support to the Disciplinary Ombudsman for Judges of the Court of General Jurisdiction and his deputies.
In his statement, the Deputy Minister completely ignored the above-mentioned position of the Presidium of the National Council of the Judiciary, which referred precisely to this obligation, andfailed to address the legal flaws in Minister Bodnar’s appointment of new ombudsmen to positions that were still filled.
This attempt by the Deputy Minister to completely reverse the meaning of the whole situation was rightly highlighted by representatives of the Lawyers for Poland Association:
The astonishment expressed at the lack of response from the President of the National Council of the Judiciary to the demands of persons claiming to be the Disciplinary Ombudsman for judges of the court of general jurisdiction and his Deputy can only be met with pity. Adam Bodnar’s inept attempt to appoint judges Mariusz Ulman and Tomasz Ładny to vacant positions is legally ineffective. Appointments made without legal basis have no effect. Any actions taken by the aforementioned persons as alleged Disciplinary Spokespersons will constitute unlawful appropriation of public office, i.e. acts described in Article 231 § 1 of the Criminal Code in conjunction with Article 227 of the Criminal Code. Attempts to legitimise these actions by correspondence to the National Court Register or by requesting access to the documentation and premises of the Council Office will not change the situation: any act taken by them in this capacity will be legally invalid and potentially criminal. A particular curiosity is the request addressed to the National Court Register, in which the self-appointed ‘pseudo-spokesperson’ demands administrative services and the allocation of premises. Such action bears the hallmarks of a caricature of the seriousness of the state, rather than the performance of its tasks. The rhetoric accompanying these actions is also astonishing. The entire operation is designed to create the appearance of legality for unlawful actions. This is not a legal controversy, but a clear usurpation of power. Judges Mariusz Ulman and Tomasz Ładny are not Disciplinary Ombudsmen for Judges of the Court of General Jurisdiction. They have never been and cannot consider themselves to be such, as the legal Disciplinary Ombudsmen are judges Piotr Schab and Przemysław Radzik.
Shortly afterwards, Judge Ulman changed his mind again and, instead of demanding administrative assistance from the National Council of the Judiciary, demanded that the Council hand over, by 19 August at the latest, all disciplinary cases conducted by Ombudsman Piotr Schab and his deputies, which he would then like to
temporarily transfer to another location.
Judge Ulman threatened that if the above request was not met, he would notify the public prosecutor’s office of the possibility of a crime under Article 276 of the Criminal Code:
Whoever destroys, damages, renders useless, conceals or removes a document which he is not entitled to dispose of, shall be subject to a fine, restriction of liberty or imprisonment for up to two years.
However, Przemysław Radzik, the legal deputy of the Disciplinary Spokesperson for Judges of the Court of General Jurisdiction, reacted strongly to this threat, pointing out that it would be against the law to hand over the files to Judge Ulman:
First of all, Judge Mariusz Ulman is usurping the right to be the Disciplinary Ombudsman for Judges of the Court of General Jurisdiction, when he is absolutely not. His appointment is ineffective and unlawful because it was made to a position held by the acting legal Ombudsman Piotr Schab. I could stop there, but the situation is much more serious, even unimaginable. A judge has a legal and moral obligation to protect the files of a case assigned to him or her, whether by lottery. […] And in the case of disciplinary proceedings, these are often cases involving sensitive information about judges, sick leave, illnesses, family situations, financial situations, and personal files. Meanwhile, Mr Ulman wants to transfer all the files somewhere, albeit not personally, but through some representative. It is not known where, how or why. Apart from being unlawful, this action is, above all, frivolous. It is a farce!
Indeed, the transfer of files to an unauthorised person could constitute an offence under Article 266 § 1 of the Criminal Code:
Whoever, contrary to the provisions of the law or an obligation assumed, discloses or uses information which has come to their knowledge in connection with their function, work, public, social, economic or scientific activity, shall be subject to a fine, restriction of liberty or imprisonment for up to two years.
The very attempt to force the KRS to hand over the files may constitute an offence under Article 128 § 3 of the Criminal Code:
Whoever, by violence or unlawful threat, influences the official acts of a constitutional body of the Republic of Poland shall be subject to imprisonment for a term of between one and ten years. [According to Article 115 § 12 of the Criminal Code, an unlawful threat includes, among other things, ‘a threat to initiate criminal proceedings.’]
Attempt to break into the KRS headquarters
Despite the possible legal consequences outlined above, Judge Ulman apparently decided to carry out his ultimatum. As we wrote at the beginning of this article, on 19 August, representatives of the Ministry of Justice did indeed appear at the headquarters of the National Council of the Judiciary, attempting to gain access to the closed offices of the Disciplinary Ombudsman for Judges of the Court of General Jurisdiction and his deputies. This action sparked justified protests from a number of legal circles and may in itself entail separate consequences for thosewho committed it.
The very attempt to enter closed offices using stolen access cards may be considered a crime under Article 193 § 1 of the Criminal Code:
Whoever breaks into another person’s house, flat, premises, room or fenced-off area or, contrary to the request of an authorised person, fails to leave such a place, shall be subject to a fine, restriction of liberty or imprisonment for up to one year.
If the purpose of this action was in fact to take the files, then attempted burglary, referred to in Article 279 § 1, may also come into play:
Whoever steals with breaking and entering, shall be subject to imprisonment for a term of between one and ten years.
This raises an obvious question: what was the purpose of the attempt to enter the offices of the ombudsmen, which was ultimately carried out in such an extremely inept manner? According to Dr Bartosz Lewandowski, it was intended as a pretext to involve the public prosecutor’s office so that it , on the same terms as a year ago, could forcibly seize the files.
So far, the Ministry has been very cautious in its comments on the matter. The judge-director Dominik Czeszkiewicz, confirming his involvement in the incident, explained its purpose as follows:
Since the National Council of the Judiciary refused to make the files available to legal [in the opinion of the Ministry of Justice, i.e. judges Ulman and Lasota] spokespersons, we decided that we could take them from there.
He declared that he would not make another attempt to enter the KRS headquarters, and when asked about the possibility of seizing the files by force, he responded rather dismissively:
I will definitely not go in with the police or a removal company. Let’s be serious. We will take legal action.
In light of the above-mentioned situation from a year ago, however, it is difficult to uncritically believe such assurances. All the more so because, as we wrote recently, there are doubts as to whether the Ministry will not want to take over the National Council of the Judiciary itself in a similar manner.
Summary
At present, Minister Żurek’s actions aimed at taking control of the function of the Disciplinary Ombudsman for Judges of the Court of General Jurisdiction and his deputies have not produced the expected result.
The Supreme Court did not recognise the decision to dismiss Judge Michał Lasota from the position of Deputy Ombudsman, while the National Council of the Judiciary did not bow to the unlawful demands to provide administrative services or, in particular, to hand over disciplinary files. On the other hand, however, looking at the government’s actions to date, there is little hope that it will decide to let the matter drop. We must therefore be prepared for the possibility that, as it did a year ago, it may once again resort to force. All abuses committed by the government and its representatives in this regard should therefore be carefully documented so that they can be legally accounted for in due course.
Image source: Adobe Stock.
