April 16, 2018 Resolutions of the Assembly of Judges of the Kraków Appeal district
Resolution No. 1.
In accordance with the annual information given by the President of the Court of Appeal in Kraków, judges of the Kraków Appeal district hereby declare, that the results achieved in the courts of this appeal were possible only due to the hard work of judges and court administrative staff.
The judges express their thanks and appreciation to all employees of the courts of the Kraków Appeal district.
The results of the work of the Court were achieved despite the actions and omissions of the Minister of Justice and the legislative authorities, negatively affecting the functioning of the courts, including in particular:
- a year and a half long non-performance of the Minister of Justice, regarding his statutory obligations under Article 20a of the Act of 21 July 2001 on the Law on the System of Common Courts, concerning announcing over 500 vacant judicial positions what leads to shortage of personnel (active judges) and delays in court`s proceedings;
- arbitrary and unjustified decisions of the Minister of Justice refusing extensions of the posts for judges who reached the retirement age;
- no actions taken to ensure a sufficient number of referendaries, judges’ assistants and court administrative staff;
- introduction of legislative changes affecting the functioning of courts, contrary to the basic principles of the constitutional order;
- introduction of legislative changes disorganizing the work of courts, including the so-called random assignment of cases and frequent changes in the provisions regulating the internal organization of courts;
- expressing publicly, in ill deeds, false and misleading statements discrediting the judges, which result not only in lowering the authority of the judiciary, but also affect the trust in the State;
- arbitrary dismissing of competent judges from their administrative posts before the expiration of their term of office and further:
- failure to appoint their successors or appointment of persons without sufficient substantive skills, based only on the criteria of personal relations with ministerial officials – resulting in disruptions of courts operations, reduced quality of courts’ administrative activities and growing imbalance between the judiciary and the executive.
Judges call for the presidents of the courts of Kraków Appeal, in particular the President of the Court of Appeal in Krakow and the presidents of district and regional courts of Kraków Appeal district, to immediately take efforts to ensure the proper functioning of the courts and to prevent their disintegration.
At the same time, the judges` Assembly reminds presidents of courts, vice presidents and persons exercising other administrative functions in court, that their duty is to ensure lawful, correct and reasonable activities of their courts, taking into account the constitutional positioning of the judiciary. As part of this obligation, they are required to safeguard the independence and separation of the judiciary, and that in their actions, presidents of courts are independent of the Minister of Justice and the employees of the Ministry of Justice.
Resolution No. 2.
The judges of the Kraków Appeal district would like to express their appreciation and respect to the judges – members of the National Council of the Judiciary who, pursuant to art. 8 of the unconstitutional law of 8 December 2017 amending the act on the National Council of the Judiciary and certain other acts (Journal of Laws of 2018, item 3) were forced to early terminate their service even though their terms of office were still in force. We thank them for their work for the benefit of the state and our fellow citizens, and for their unwavering guardianship of the independence of judiciary.
Regarding the election of 15 persons, working as judges, to the National Council of Judiciary (executed by the parliament on the basis of the uncosntitutional Act on the National Council of the Judiciary), the judges of the Kraków appeal declare that they do not recognize these people as representatives of the judiciary.
The facts that the lists with signatures of persons supporting candidates are kept confidential and that the candidates are closely related to the Ministry of Justice give no guarantee, that the Constitutional duties of the Council will be executed properly and raise doubts, related to the political subordination of the body, whose objective is to protect the independence of judiciary. We are strongly convinced, that the process of electing members of the Council enforced by aforementioned law, endangers the independence of the judiciary.
The judges of the Kraków Appeal district call the persons performing the profession of judge, elected to the National Council of the Judiciary, to give up their membership in the body shaped in contrary to the Constitution of the Republic of Poland. This is required to preserve the separation of powers provided for by the Constitution. We are also convinced, that active participation of judges in the work of the body appointed in violation of constitutional principles violates the principles of professional ethos.
Again, we appeal to all judges:
- to maintain unity in assessing the values that make up the profession of a judge and in the assessment of persons violating these values;
- not to abstain from participation in the public debate, in matters relating to the protection of the democratic rule of law, and in particular the separation of powers, independence of courts and judges, and to inform the public through the media about all cases of violation of judges’ independence;
- to refrain from any form of cooperation in the process of limiting the independence of the judiciary
Resolution No. 3.
The assembly of the judges of the Kraków Appeal district clearly criticizes the amendments to the Act on the System of Common Courts, the Law on the Supreme Court, the Act on the National Council for the Judiciary and the Constitutional Tribunal Act, voted by the Sejm majority on 12 April 2018.
The amendment obliging the Minister of Justice to consult the dismissal of court presidents with the general assembly of a court and with National Council of the Judiciary, in no way contributes to the independence of courts, since – due to the election of judges to the Council by the parliament – the body will be politicized, while the term of the office of the judges-members of the previous Council was interrupted before its expiry.
We only approve the change equalizing the retirement age of women’s and men’s judges. Nevertheless, the transfer of the right to extend the term of the office beyond the retirement age from the Minister of Justice to the National Council of the Judiciary still leaves this right in the hands of political body (due to the aforementioned procedure for the election of its members).
It should also be noted that the above change is only introduced just after Minister of Justice purged the judiciary by exchanging 149 presidents and vice-presidents of the court, and transferred many women-judges to the retirement status.
The adoption of the Act on the publication of judgments of the Constitutional Tribunal of 9 March, 11 August and 7 November 2016 in such a way that they have no legal effects and with a comment undermining the legality of their adoption, cannot be considered a fulfilment of the obligation arising directly from art. 190 sec. 2 of the Constitution of the Republic of Poland. Such action should be considered as a smokescreen designed to conceal the actual intentions of the executive in the international forum.
In our opinion the proposed changes are just a smokescreen with objective to deceive European Commission in order to achieve temporary political objective of the compromise with EC. They in no way serve the independence of judiciary. Proposed amendment will keep the National Council of Judiciary a political body, Minister of Justice will still be able to arbitrarily appoint presidents of courts and ordinary judges will still be a subject to disciplinary proceedings, executed in inquisitional mode by disciplinary judges appointed by Ministry of Justice. The proceedings will abuse the constitutional rights to defend, using illegally obtained evidence, with the right to appeal to the politicized Disciplinary Chamber of the Supreme Court. The ostensible character of proposed changes is further confirmed by the statements of the politicians of the ruling party and by the fact, that while the amendments are being proceeded, Minister of Justice still refuses to extend the term of office of women-judges beyond their retirement age of 60.
Resolution No. 4.
We express our thanks and appreciation to the activities of the judge Waldemar Żurek, as the spokesman of the former National Council of Judiciary, for defending the independence of courts and judicial independence, and condemn the activities of the executive detailed in the resolution of the Assembly of Representatives of the District Judges of February 26, 2018, aiming to put pressure on him and intimidating him.
We protest against taking repressive measures in the form of criminal and disciplinary proceedings against judges, whose judgments were considered to be politically incorrect, which concerns, inter alia, judges Agnieszka Pilarczyk and judge Dominik Czeszkiewicz.
We protest against the politicization of the disciplinary proceedings against judges and representatives of other legal professions, as well as the introduction in those proceedings, of provisions violating the rights to defend and enabling the use of illegally obtained evidence. We emphasize that the perspective of a state in which judges either come from political assignment or are intimidated and invigilated constitutes a real threat to the rights and freedoms of citizens.
We recognize the candidacy of the politicized Supreme Court Disciplinary Chamber as unworthy of the judge and shameful, and we call to all judges to refuse to apply for such positions.
Resolution No. 5.
The judges of the Krakow Appeal district unequivocally critically evaluate the activities of the newly appointed President of the District Court in Krakow, Dagmara Pawelczyk-Woicka, including:
- unreasonable dismissal of the presidents of the Regional Court and District Courts and their deputies: Regional Court judge (SSO) Agnieszka Włodyga, SSO Joanna Melnyczuk, SSO Janusz Kawałka, District Court Judge (SSR) Beata Donhoffner-Grodzicka, SSR Natasza Czarny and SSR Łukasz Sajdak. Such dismissal leads to overall decrease of the quality of the the court management staff, and in the long run to disorganizing its work,
- dismissals of the Chairmen of departments in a hasty and unjustified manner are usually performed without nominating their successors, which directly threatens the continuity of the court’s work;
- obstruction of the activities of the Assembly of Representatives of the Judges of the Krakow Region, including: questioning its right to adopt a resolution in defence of the independence of the judiciary and then refusing to publish this resolution,
- obstruction of the activities of the College of the District Court in Krakow, inter alia by forbidding College members to speak, refusing to vote their motions, providing false information in order to force a decision, refusal to accept the work regulations of the college and setting dates of the meetings in a way preventing participation of all members,
- issuing common orders limiting the participation of judges in training activities (both as trainers and trainees) which are not supported by the Act on the Law of the Courts System
- attempts to exert pressure on the judges in order to force them to resign from administrative positions
Resolution No. 6.
We oblige the President of the Court of Appeals in Krakow to publish these resolutions in the Court’s website and distribute them to: the President of the Republic of Poland, the Minister of Justice, the Chairman of the National Council of Judiciary, the First President of the Supreme Court, Presidents of Appellate and District Courts.
At the same time, we authorize judges associations to publicize the contents of this resolution by sending it to the above-mentioned entities, and to translate the resolution into English, and then send translations to foreign organizations, institutions, foundations, associations dealing with law enforcement monitoring and protection of the courts ‘independence and judges’ independence, including in particular: the National Councils for the Judiciary of European States, the European Court of Human Rights in Strasbourg, the Court of Justice of the European Union in Luxemburg, the Consultative Council of European Judges, ENCJ – European Networks of Councils for the Judiciary, the Foundation Judges for Judges Foundation, the American Bar Association (ABA), the Venice Commission (European Comission for Democracy through Law), the Association of European Judges and Prosecutors for Democracy (MEDEL), the European Judges Association (EAJ), the International Union of Judges (ICJ), ICJ – International Commission of Jurists, Council of Bars and Law Societies of Europe (CEBE), European Association of Administrative Judges AEAJ, ODIHR – The OSCE Office for Democratic Institutions and Human Rights, Mr. Nils Muizhneks – Council of Europe Commissioner for Human Rights, Mr. Diego Garcia Sayan – UN Special Rapporteur on the Independence of Judges and Lawyers, the United Nations Human Rights Council (UNHRC), Amnesty International, UNICRI – United Nations Interregional Crime and Justice Research Institute, ELI – European Law Institute, CEELI Institute – Central and East European Law Initiative, USAID – United States Agency for International Development.