Case ref. SD 16/2020 Anna Gąsior – Majchrowska and procedings against Tomasz Marczyński

Case ref. SD 16/2020

Decision of the 12th of August 2020

Anna Gąsior – Majchrowska – the Deputy Disciplinary Commissioner at the Regional Court in Piotrków Trybunalski

on the basis of Article 114, Section 3 of the Act on the Common Courts Organisation 

decides:

to initiate proceedings concerning the filing of a letter dated on the 28th of April 2020 by Tomasz Marczyński, Judge in the District Court to Ambassador Ingibjorg Solrun Gisladottir – Director of the Bureau of Democratic Institutions and Human Rights of the OSCE despite the ban on such actions expressed in the Article 178, Section 3 of the Constitution of Poland, which states, that judges shall not perform any public activities incompatible with the principles of independence of the courts and judges and a violation of the dignity of the judge’s office, by public questioning the legitimacy of the appointment of judges of the Extraordinary Control and Public Affairs Chamber in abovementioned motion;

that is disciplinary offences provided in Article 107, Section 1, Subsections 3, 4 and 5 of the Act on the Common Courts Organisation in conjunction with Article 11, Section 2 of the Penal Code of Poland and Article 128 of the Act on the Common Courts Organisation.

Legal justification 

The Deputy Disciplinary Commissioner, during ongoing proceedings case ref. OKD. 1181 – 15/2020, after having carried out explanatory measures, aimed at establishing circumstances necessary to identify hallmarks of the disciplinary offence of the filing of a letter to the President of the Bureau of Democratic Institutions and Human Rights  of the OSCE dated on the 28th of April 2020 by judges of district courts operating within the jurisdiction of the Regional Court in Piotrków Trybunalski has established, that judges of the Regional Court of Bełchatów: ...................., ........................, ............................, Tomasz Marczyński, ............................, ............................, the judges of Regional Court of Piotrków Trybunalski ....................., ............................., ............................, ............................, the judges of Regional Court of Tomaszów Mazowiecki ......................, ................... and the retired judges of Regional Court in Opoczno ...................... and ......................... have signed abovementioned letter despite the ban on such actions expressed in the Article 178, Section 3 of the Constitution of Poland.

The analysis of the abovementioned letter and the testimonies of judges of the Regional Court of Bełchatów ...................................................., judges of Regional Court of Piotrków Trybunalski ..............................................., judges of the Regional Court of Tomaszów Mazowiecki ........................................... and retired judges of the Regional Court of Opoczno ............................................... (judge Tomasz Marczyński had not testified by the date of this decision) indicate that these judges have taken a stance in a political debate considering legislative actions undertaken in the light of upcoming presidential elections of the 10th of May 2020 and COVID – 19 epidemic by clearly opposing to solutions proposed by one of the political parties and expressing their own opinions on that matter. Additionally the judges have suggested that recognition of election protests and adjudication of the validity of the elections would be void as the members of the Extraordinary Control and Public Affairs Chamber had been appointed in an invalid procedure.

It should be pointed out that the concept of ‘public activity’ introduced by Constitution of Poland allows the judges to enjoy political rights and freedoms, but under a condition that they shall not violate judicial independence and maintain impartiality. Judicial independence and impartiality may be violated if the judge takes part  in current political dispute by clearly expressing his opinions and siding with one of political parties. The judge does not need to give an interview, but it is enough for him or her to sign a protest letter, take part in a voting on a political matter or publicly speak against or in favour of the way a certain political institution executes its power (cf. B. Banaszak, Constitution of Republic of Poland. Commentary 2012 ed. 2).

In all of those instances a judge is making his views known, whereas  Constitutional Tribunal of Poland has stated, that ‘obligation of impartiality obliges a judge to oppose any evaluations that stem from his experience, stereotypes or biases. (cf. B. Banaszek, Constitution of Poland. Commentary 2012. Ed.2; Constitutional Tribunal of Poland’s sentence of 9th of November 1993, K 11/93, published OTK 1993, no. 2/37)

Considering the above one should share an opinion that a judge should not reveal his political views, take part in political dispute, engage in political campaign of a political party, publicly state opinions on about the execution of political institution’s activities or publicly declare his affiliation to a religion or a church. All of this aims at ensure a judicial independence and prevents judges from taking any kind of public activity that would bring harm to his or her independence (cf. B. Banaszak, Constitution of Republic of Poland. Commentary 2012 ed. 2 and M. Safjan, L. Bosek, Constitution of Republic of Poland. Commentary 2016, ed. 1).

Therefore, abovementioned provision of the Constitution of Poland constitutes (in case of violating it) a sufficient legal base for suspension of a judge and initiation of disciplinary proceedings even when any of the provisions of any statue has not been violated (cf. B. Banaszak, Constitution of Republic of Poland. Commentary 2012 ed. 2 and M. Safjan, L. Bosek, Constitution of Republic of Poland. Commentary 2016, ed. 1).

It should be emphasized that dignity of the office of the judge is an attribute constituting the authority of the court and of the judge himself. This term cannot be defined, but it holds connection with judge’s behaviour while exercising his office that results from provisions of law and professional ethics. The dignity of an office of a judge and impeccability of his or her character is connected with a certain standard of conduct that in effect ought to be an instance for  others. This standard binds a judge not only during his time in the court, but also when he or she does not work there. Therefore, judges are constantly observated and they are required to oblige to much higher standard of behaviour than a common citizen (cf. the Supreme Court of Poland's ruling of the 22nd June 2015 SNO 34/11).

Additionally it should be pointed out that it is a common notion in jurisprudence that ‘dignity of a retired judge should be perceived respectively to his or her changed status thus a retired judge should avoid any activity that would bring harm to his dignity as if he was a judge in service’.

Thus, conclusions above refer not only to active judges, but also to retired ones. After all retired judges are obliged to preserve the dignity of their office since they may be appointed to certain public offices because of their status (e. g. such positions as as members of electoral commissions or judges in arbitral tribunal).

Thereupon, the evidence collected in the case so far  provides grounds for reasonable suspicion of a disciplinary offence by aforementioned judges enlisted in Article 107, Section 1, Subsection 3, 4 and 5 of the Act on the Common Courts Organisation in conjunction with Article 11, Section 2 of the Penal Code of Poland and Article 128 of the Act on the Common Courts Organisation.

In conclusion, on the basis of Article 114, Section 3 of the Act on the Common Courts Organisation, it has been decided as in the conclusion of the decision.


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