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Disciplinary Hearing Observation Report: Polish Judge Alina Czubieniak

Threats to Judicial Independence in Poland Through the Use of Judicial Disciplinary Procedures

Read the full report here: (English)

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. 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.

Judge Alina Czubieniak is an appellate judge and has been the president of the criminal appeals department of her court since 2007. In 2016, she wrote an appellate opinion stating that a mentally ill defendant, charged with inappropriate sexual behavior against a minor, had his right to legal counsel violated when defense counsel did not participate in preliminary investigative proceedings in the prosecutor’s office nor in the pretrial detention hearing. Judge Czubieniak reasoned that given the defendant’s obvious diminished mental capacity—and thus his inability to understand the charges against him or to effectively represent himself—the defendant should have been given a publicly provided defense counsel in order to meaningfully exercise his statutory right to a defense. She remanded to the lower court to conduct a second pretrial detention hearing with defense counsel present. As a result of this opinion, the judge faced some backlash and at least one inflammatory article that alleged her decision put the rights of defendants over those of ordinary Polish people and that she subjected innocent people to “pedophiles.”

Shortly thereafter, disciplinary proceedings against Judge Czubieniak were initiated: the Ministry of Justice alleged that her reasoning in the appellate order constituted an “obvious and gross violation” of statutory law. Judge Czubieniak defended herself by arguing that a judge has the right to interpret the law in its totality and not just to mechanically apply various articles of the Criminal Code. She also maintained that her decision was justified by the need to guarantee the defendant’s fair trial rights, citing constitutional and statutory provisions. Ultimately, the disciplinary review body formally admonished her.

After the Disciplinary Chamber issued its decision and after the close of the underlying criminal case that spurred the hearings, Judge Czubieniak gave a public statement criticizing her disciplinary case. In response, the disciplinary officer publicly characterized the remarks as having “undermined the dignity of the judicial office” in violation of the mandated Judicial Code of Ethics and hinted at a possible second disciplinary proceeding. It is unclear at this time whether a second set of disciplinary procedures will be officially initiated.

Arbitrary subjection to disciplinary proceedings based solely on the legal reasoning of judicial opinions—instead of on behavior, conflicts of interest, or some other material ethical violation—encroaches upon the very essence of a judge’s function: independent adjudication. The mere threat of bringing disciplinary charges against Polish judges is being used as a way to punish their work and chill their legitimate speech. International legal standards recognize that members of the judiciary are entitled to freedom of expression, belief, association, and assembly. Using the judicial disciplinary system in a politically expedient manner undermines the impartiality of the judiciary in violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the United Nations Basic Principles on the Independence of the Judiciary.

If left unaddressed, the current Polish regime will undermine both the legitimate judicial process in individual cases and risk a chilling effect on the judiciary more broadly. For these and other reasons, the Polish Supreme Court has recently ruled that the reforms violated the Polish constitution and related requirements for judicial independence under EU law. It is not yet clear how the government will react to its decision. In the interim, it is important to note that the regime has already had consequences for judges, such as Judge Czubieniak.