It is the first suspension of a defiant judge by the Disciplinary Chamber of the Supreme Court. Judge Juszczyszyn from Olsztyn was suspended on Tuesday, 4 February 2020. The reason? Disciplinary charges brought against the judge. The suspension will remain in effect until a final disciplinary verdict is issued. At the same time, the judge’s salary was reduced by 40 percent for the duration of the suspension. The judicial panel of the Disciplinary Chamber that passed the resolution in the case included Ryszard Witkowski (presiding judge), Adam Tomczyński (rapporteur) and juror Jacek Leśniewski.

The resolution is legally binding, meaning it is theoretically enforceable. So what will happen to the cases that Juszczyszyn was hearing, including the one for which he was suspended, i.e. the list of signatures in support of judicial candidates to the National Council of the Judiciary, which the judge ordered to be handed over?

“We are waiting for a copy of the Chamber’s ruling and then we’ll make a decision. The judge can no longer perform his duties. It should be expected that the cases to which he is appointed in the regional court will either be assigned to another judge at random, or they will wait for him until he is restored to the bench. Both scenarios are possible,” says Olgierd Dąbrowski-Żegalski, press officer for the Olsztyn Regional Court.

Judge Juszczyszyn has been adjudicating after being delegated to that court. The judge’s removal from trials was also announced on Twitter by Maciej Nawacki, President of the Olsztyn Regional Court, which is Juszczyszyn’s “home” court.

The judge’s defenders, attorneys Michał Wawrykiewicz and Mikołaj Pietrzak, and judge Dariusz Mazur of Kraków, declare that the judge will come to work on Wednesday, because the Disciplinary Chamber and its rulings are unlawful, which results from a 2019 judgment of the CJEU and the resolution of the College of the Supreme Court of 23 January 2020.

Disciplinary officer continues attack on Juszczyszyn

Judge Paweł Juszczyszyn’s suspension was demanded the deputy disciplinary officer for judges Przemysław Radzik, an appointee of Zbigniew Ziobro. Radzik appealed against the resolution of the Disciplinary Chamber, which on 23 December 2019, acting as the court of first instance, refused to suspend the judge and stayed the earlier decision of the President of the District Court in Olsztyn, Maciej Nawacki, to remove Juszczyszyn from office for a month. This allowed the judge to continue adjudicating.

In this ruling, the Disciplinary Chamber criticised the work of Ziobro’s disciplinary officer, who brought disciplinary charges against the judge. This did not please Przemysław Radzik, who filed an appeal against it, and on Tuesday 4 February a different panel of the Chamber’s judges admitted he was right.

Repression for implementing the CJEU judgment

Let us recall that Judge Juszczyszyn’s problems stem from the fact that in implementing the CJEU judgment of November 2019 – as the first judge in Poland to do so – he sought to review the status of a district court judge whose judgment was under appeal. This judge had been promoted by the new National Council of the Judiciary. To review his status, Juszczyszyn also had to assess the status of the new Council, as was allowed by the CJEU ruling. Therefore, he demanded to see the original signatures in support of candidates to the new Council, as it was known that Maciej Nawacki, the president of the Olsztyn court and a member of the new Council, did not have the required number of signatures. Some of the judges who had backed him later withdrew their support.

A wave of repression was then visited on the judge.

– First, Minister Ziobro revoked his delegation to the District Court in Olsztyn
– Then, President Nawacki suspended him from adjudicating, a decision that was repealed by the Disciplinary Chamber in December
– Ziobro’s disciplinary officer brought several disciplinary charges against him. The most serious of them is for trying to review the legality of the new Council and the status of a judge recommended by it. According to Ziobro’s disciplinary officer, a line judge is not authored to review the legitimacy of a judge appointed by the president, as this is the president’s autonomous decision.
– The second charge against the judge was for making a statement to the media, and another for allegedly making false statements in motions to disqualify himself from one case.

And it was on the basis of the disciplinary charges that President Maciej Nawacki suspended Juszczyszyn, while in December the Disciplinary Chamber repealed his suspension, allowing the judge to return to work.

Radzik: Juszczyszyn has declared war on the state

On Tuesday 4 February, the Disciplinary Chamber acknowledged Przemysław Radzik’s appeal against the December resolution.

The judge did not attend the session, because he does not recognize the Disciplinary Chamber as a legitimate court.

His defenders were Judge Dariusz Mazur and attorneys Mikołaj Pietrzak and Michał Wawrykiewicz. However, they did not enter the courtroom, because in accordance with the CJEU’s judgment and the resolution of the College of the Supreme Court of 23 January 2020, they also do not recognize the legitimacy of the Disciplinary Chamber. Nor do they consider its rulings to be lawful. Only journalists, judges and lawyers from the capital city and the disciplinary officer Przemysław Radzik were present in the courtroom.

The disciplinary officer presented in an honest speech the entire philosophy of prosecuting independent judges who act in defence of free courts.

“We are fighting against judicial pathologies on your behalf. Every day life brings new examples of judicial conduct [which he prosecutes together with chief disciplinary officer Piotr Schab and second deputy Michał Lasota – ed.],” Radzik began.

He stressed that he did not know whether Juszczyszyn was guilty of the disciplinary offenses. But he stressed that the judge was accused of committing the offence of abuse of power under Article 231 of the Criminal Code, because this is how the disciplinary officer qualified the judge’s order to the Chancellery of the Sejm to present the list of signatures submitted to the new National Court Register, the attempt to review its status, and Juszczyszyn’s attempt to review the status of a judge promoted by it. “He [Juszczyszyn – ed.] is opposing the constitutional order. He questions the legitimacy of a [regional] judge, he goes with it to the media and becomes a celebrity. This is not allowed,” said Radzik at a hearing in the Disciplinary Chamber.

He said that in December the judge had received a warning from another panel of the Chamber.

“And what did he do next? Did he cease? Absolutely not. He continued. He committed more disciplinary violations. He declared war on his state,” Radzik accused.

This is an allusion to the fact that in January the judge wanted to question the head of the Chancellery of the Sejm in order to find out the reasons for refusing to forward the letters of support to the National Council of the Judiciary. Judge Juszczyszyn even went to see them in person to the Chancellery of the Sejm, but was refused because the president of the court had not authorized a delegation. Under the threat of a fine, the judge therefore demanded presentation of letters of support to the Council from Minister of Justice Zbigniew Ziobro. Additionally, he imposed a fine on the head of the Chancellery of the Sejm.

Radzik continued to accuse Juszczyszyn:

“I don’t know if the judge committed his disciplinary breach for political reasons, but he injected himself into this element of political struggle,” he said. He regretted that only one president of a court in Poland, Maciej Nawacki, had suspended a judge, despite that there are “dozens” of such judges behaving like Juszczyszyn. “I must express respect for the fact that he [Nawacki – ed.] applies the law,” Radzik said solemnly.

Finally, he demanded that the Disciplinary Chamber adopt a preventive resolution.

“Against judge Juszczyszyn and other potential perpetrators [judges questioning the lawfulness of the new National Chamber of the Judiciary]. The Chamber’s resolution of December [favourable to the judge – ed.] supplied encouragement for similar conduct, which we are already investigating,” concluded Przemysław Radzik. His concluding words were a reference to judges who were examining the status of the new Council and judges appointed by it through referring legal questions to the Supreme Court.

They are now facing disciplinary charges, which the Disciplinary Chamber will soon rule on.

Disciplinary Chamber: judges owe the President respect

And what did the Disciplinary Chamber do on Tuesday? It amended the resolution of the Chamber from December in such a way that it suspended Judge Juszczyszyn indefinitely and cut his salary by 40 percent (the maximum possible is 50 percent).

The justification for the resolution was presented by Adam Tomczyński. A bankruptcy judge before being appointed to the Chamber, he was known for expressing his sympathy for Law and Justice on Twitter.

The justification was harsh, and indeed crafted to act as a warning to other judges. It was also not worded very “legally”, at times resembling an opinion piece.

In his verbal justification, Tomczyński said that the Chamber had to weigh up two goods. The good of a judge, understood as the right to render judgement in peace, and the good of the justice system, which this panel of the Chamber understands as the peaceful work of all judges, without “judicial excesses”. The demand Juszczyszyn made to see letters of support to the new Council was considered an excess.

The Chamber gave more weight to the good of the justice system understood as “calm adjudication by the courts”. It held that:

– there were errors in the judgment in which Juszczyszyn demanded the letters of support
– the judge had violated the Constitution
– he had behaved unethically

The Disciplinary Chamber ruled that the judge had no grounds to apply to the Chancellery of the Sejm for letters of support to the new Council without justifying it. Moreover, even if he considered that he could review the legitimacy of the new Council, in the opinion of the Chamber, those letters would not have helped him at all. For even if it turned out that some candidates had too few signatures of support, a judge cannot question the appointment of another judge and the President’s position in the process of appointing judges.

Tomczyński stressed that Juszczyszyn should also not have invoked the CJEU verdict, because in the opinion of the Chamber it concerns only one particular case of a judge being forcefully retired. Thus, it does not allow for review of the status of the new Council. However, this opinion is one shared solely by the Disciplinary Chamber and the government. Tomczyński referred to rulings of the Constitutional Tribunal and the Supreme Administrative Court – including from the period before the Law and Justice party – based on which he concluded that a court cannot question the appointment of judges by the President. This is a constitutional prerogative enjoyed by the President for which he bears responsibility. He also recalled the ruling of the Constitutional Tribunal in 2019, which legalised the new National Council of the Judiciary. Yet this ruling was issued by a Tribunal already taken over by Law and Justice.

Tomczyński noted in the oral justification of the resolution: “This is not only about us [judges – ed.], but about the system for all citizens. They have the right to demand that they know who will judge them and how. This certainty is provided by the President’s appointment of a judge. If we reject this, it will lead to chaos and anarchy, the victim of which will be citizens. And what Juszczyszyn and the College of the Supreme Court on January 23 suggested is the introduction of legal uncertainty,” Tomczyński said. He added: “Therefore, all judges, out of respect for the President and out of courtesy, should show particular restraint in reviewing his decisions. Because his authority stems from the will of the people [who elected him to office – ed.]”

Tomczyński also said that judicial independence does not mean the unfettered application of regulations. He argued that a judge must yield to the yoke of laws and the Constitution. Thus, he cannot pass judgment on the President’s decision to appoint judges. “This produces chaos, uncertainty, and is unacceptable,” Adam Tomczyński of the Disciplinary Chamber stated.

Moreover, he accused Juszczyszyn of breaking the code of ethics for judges, under which a judge is supposed to respect the position of parliament and the President. He is also supposed to act without delay, and by demanding the letters of support to the National Chamber of the Judiciary, Juszczyszyn, in the opinion of the Chamber, created a risk of excessively lengthy proceedings in the case in which he sought to review the status of a judge. “For what reason should the parties to that case suffer and wait, because the judge is trying to take a political approach to the case? Let’s put aside political adjudication and apply the law,” Tomczyński concluded.
What’s next?

If judge Juszczyszyn comes to work tomorrow, he may be barred from performing his duties. Will the president of his court, Maciej Nawacki, elect to employ a forceful solution? Juszczyszyn can defend himself by invoking the resolution of the Supreme Court of 23 January that the decisions of the Disciplinary Chamber are unlawful, this rendering his suspension ineffective.

However, for refusing to comply with the Disciplinary Chamber’s ruling, the disciplinary spokesman may bring further charges against him.

Today, the spokesman of the District Court informed that yesterday Judge Juszczyszyn again ordered the head of the Chancellery of the Sejm to provide access to documents related to letters of support for candidates to the National Council of the Judiciary. When asked what will happen with the case being considered by Juszczyszyn, the spokesman replied that “all decisions taken in this procedure are effective” and “have binding force on the authorities or persons who have been obliged to act”.