ABA CHR Report: The Case of Judge Alina Czubieniak: Threats to Judicial Independence in Poland through the Use of Judicial Disciplinary Procedures

Abstract

The American Bar Association Center for Human Rights would like to acknowledge Elizabeth Zechenter, an American-educated international attorney, social scientist, published author, and public speaker, for her profound contribution to this report. Ms. Zechenter's pro bono assistance was instrumental and served as the basis for this report in many ways. Since 2015, the Polish government has enacted a series of so-called judicial reforms' including the creation of new disciplinary procedures and oversight body for judges that have dramatically increased political oversight of the judiciary. One of the first judge to be disciplined under the newly created judicial disciplinary body was Judge Alina Czubieniak. The ABA Center for Human Rights sent monitors to Judge Czubieniak's disciplinary hearings to ascertain whether they complied with international standards for maintaining the independence of the judiciary. Its monitors found several indicia that the new judicial disciplinary procedures fail to properly protect judges against improper influence and are subject to potential arbitrary application, which has since been confirmed by decisions at the European Court of Justice and the Polish Supreme Court. The judicial reforms of the last four years have made it possible for disciplinary procedures to be used as a tool to intimidate judges whose decisions are unpopular with the executive branch. The independence of the judiciary is threatened when disciplinary procedures are applied arbitrarily. Judge Czubieniak's case was one of the first in a series of disciplinary proceedings, brought by the Ministry of Justice against judges for legitimate judicial activities and the first to be decided by the newly created Disciplinary Chamber. While governments may reform judicial disciplinary proceedings to reduce overall delays, ethic violations, conflicts of interest, and other inefficiencies in the judicial system, disciplinary proceedings should not be used to discipline judges for issuing valid legal opinions that are deemed unpopular by the executive. Arbitrary application of disciplinary proceedings endangers the fair and impartial administration of justice. This and other recent cases against judges are part of a growing evidence that, in addition to the threat to judicial independence posed by the Disciplinary Chamber's creation and process, the Ministry of Justice has used the new process to target judges whose rulings are inconvenient and to chill legitimate and protected free speech.