Judge Juszczyszyn is being prosecuted again for applying EU law. This is how Ziobro’s people are ‘supporting’ the compromise
Judge Juszczyszyn from Olsztyn, who returned to work just six months ago, did not have peace of mind for very long. Ziobro’s nominees are after him again because Juszczyszyn is still enforcing ECtHR and CJEU judgments. He is facing as many as three new disciplinary actions!
Judge Pawel Juszczyszyn of the District Court in Olsztyn is one of the symbols of the free courts. He was the first judge in Poland suspended by the illegal Disciplinary Chamber and for the longest time. This was a punishment for applying EU law.
Now, he is facing as many as three new disciplinary actions. All for challenging the legality of the neo-judges from Olsztyn, namely judges appointed by the illegal, politicized NCJ. Importantly, the judge is again being prosecuted for the same thing as that for which he was the first in Poland to be suspended three years ago. Namely for applying EU law.
The judge started to be prosecuted by the local deputy disciplinary commissioner at the Regional Court in Olsztyn, Tomasz Koszewski, who is also a neo-judge. He initiated one investigation regarding Juszczyszyn at the beginning of December 2022, and another in early January 2023. Both apply to the judge contesting the legality of neo-judges.
Both investigations were initiated because of a breach of a provision introduced by the Muzzle Act into the Act on the Ordinary Courts, namely Article 107, paragraph 1, item 3 of that Act. This provision, which was enacted by PiS in 2020, prohibits judges from examining the status of neo-judges and the legality of institutions in the judiciary appointed or staffed by PiS. This applies, among other things, to the neo-NCJ, the illegal Disciplinary Chamber, and Przyłębska’s Constitutional Tribunal.
This provision was suspended by the CJEU in an interim measure on 14 July 2021 and should not be applied. But Ziobro’s people are showing what the application of the EU Court’s rulings looks like in practice and what a compromise with the EU unlocking billions for Poland for the National Recovery Plan will look like.
Because, on the one hand, the Sejm enacted the amendments to the Acts on the courts on Friday 13 January 2023 with PiS’s votes and with the tacit consent of the opposition. But it simultaneously left this provision of the Muzzle Act in place, while Ziobro’s nominees and people are still prosecuting judges on its basis.
These two proceedings could end with Juszczyszyn facing disciplinary charges. The judge is also facing a third disciplinary action – for his meeting with the mayors of Gdańsk and Sopot and for challenging the legality of a third neo-judge.
The notorious president of the District Court in Olsztyn, Maciej Nawacki, and member of the neo-NCJ wanted to initiate this matter. It is not known whether the disciplinary commissioner has already initiated proceedings. We write about the details of the new disciplinary cases later in this article.
These are not the only activities affecting independent judges in the courts in Olsztyn. Judge Dorota Lutostańska of the Regional Court in Olsztyn was unexpectedly forcibly transferred to another division in December 2022. She was transferred from the criminal appellate division (which reviews the judgments of the district courts) to the criminal division, which tries cases in the first instance.
Lutostańska had previously been prosecuted for wearing a T-shirt with the word Konstytucja (Eng.: Constitution] on it. The judges from Olsztyn understood that her transfer was a repression, because she had been adjudicating for 14 years in the appellate division.
Neo-judges are barging their way through the Olsztyn courts
Judge Paweł Juszczyszyn’s latest repressions and Judge Dorota Lutostańska’s transfer to another division are not happening now by chance. Ziobro’s people and neo-judges have been taking control of the district and regional courts in Olsztyn over the last few months. For several years, these courts were famous for their tough defence of judicial independence and the rule of law. The judges also stood up in defence of Judge Paweł Juszczyszyn. Meanwhile President Maciej Nawacki, who was blocking Juszczyszyn’s return to work, was rather alone.
That is changing now. The president’s and deputy disciplinary commissioner’s terms of office in the district court have ended. Several months ago, Michał Lasota, who is known for prosecuting independent judges for just about anything, was made the new president of that court. He does this as Minister Ziobro’s deputy chief disciplinary commissioner. It was he who was also prosecuting Dorota Lutostańska for the T-shirt bearing the word Constitution, but the disciplinary court refused to allow her to be prosecuted for formal reasons.
Marcin Czapski and Tomasz Kosakowski became Lasota’s deputies when he became the court president. Both are neo-judges. Czapski is a former prosecutor who, shortly after becoming a neo-judge, was appointed president of the District Court in Działdowo.
In turn, Kosakowski is a former attorney-at-law. When he was applying for a nomination to the district court in Olsztyn from the neo-NCJ, he was still a member of PiS. He also contributed PLN 12,500 to that party’s election fund.
Meanwhile, Maciej Nawacki is still managing the District Court in Olsztyn, but he has new deputies. They are the neo-judges Tomasz Koszewski and Adam Jaroczyński. Both received nominations from the neo-NCJ to the office of judge of the regional court in Olsztyn.
Koszewski is known for being one of the few to support Nawacki when he tore up the resolutions of the Olsztyn judges in front of the whole of Poland. And before that, he had disciplinary problems for protracted handling of cases.
Meanwhile, Jaroczyński is a former prosecutor. Court presidents and their deputies are appointed by Ziobro’s ministry of justice. It is rather ‘trusted’ judges who receive nominations.
These are not the only changes in these courts. Tomasz Koszewski, the deputy disciplinary commissioner at the Regional Court, became President Nawacki’s deputy in July 2022. Meanwhile, Tomasz Kossakowski, a former member of PiS and deputy president of Lasota’s Regional Court, became the deputy disciplinary commissioner at the Białystok Court of Appeal – the courts in Olsztyn are subordinated to him.
The chief disciplinary commissioner, Piotr Schab, whose deputies are Michał Lasota and Przemysław Radzik, appointed both of them to these positions.
Previously, local commissioners were appointed by the minister of justice, but then PiS changed this and it is now done by the chief disciplinary commissioner. He, in turn, appoints ‘proven’ people who will prosecute independent judges for just about anything.
It is important to show these appointments and connections to be able to understand why the local commissioner from Olsztyn is now starting to prosecute Paweł Juszczyszyn, while Judge Dorota Lutostańska has been forcibly transferred to another department.
This also shows how Ziobro and his people are cementing their power in the ordinary courts and that there will be no compromise with the EU, no concessions, and the repression of judges for applying EU law will continue. Meanwhile, the amendments to the Act in the courts adopted on Friday are just a tactical move by PiS to unlock the billions for the National Recovery Plan which the party needs to win the elections.
For what Juszczyszyn has two new disciplinary cases
The current disciplinary proceedings against Paweł Juszczyszyn are being initiated by the deputy disciplinary commissioner at the Regional Court, Neo-Judge Tomasz Koszewski. He is simultaneously the vice-president of the District Court in Olsztyn, namely Nawacki’s deputy.
– On 2 December 2022, Koszewski initiated an investigation into the ‘possibility of acts taking place’ under Article 107, paragraph 1, items 2 and 3 of the Act on the courts. Item 2 of this provision stipulates that a judge is liable to disciplinary action ‘for acts or omissions which can prevent or materially impede the functioning of a body of the justice administration’.
Item 3 stipulates that a judge is liable to disciplinary action ‘for acts challenging the fact that a judge holds office, the effectiveness of his appointment or the legitimacy of a constitutional body of the Republic of Poland.’
PiS introduced both provisions into the Act on the courts through the Muzzle Act. It did this so that the status of the neo-judges and the neo-NCJ could not be contested. And this was also a reaction to Juszczyszyn’s earlier application of EU law, for which he was suspended.
By invoking these muzzling provisions, Koszewski assumed that Juszczyszyn had challenged the legality of the appointment of Adam Jaroczyński (who is also vice-president of the district court) to the office of judge of the Regional Court in Olsztyn. This is because Judge Juszczyszyn acknowledged that the ruling he issued was non-existent. Why?
Jaroczyński is handling a divorce case. In it, he issued a securing order, in which he specified the father’s right to visitations with the children. The security regulates visitations until the judgment is issued. However, there was a problem with the enforcement of this order so the father filed a motion to force his wife to respect the rules of visitation with the children. This motion went to the district court and was assigned to Judge Juszczyszyn. Because he now adjudicates in the family division. He was transferred there as punishment by President Nawacki, after his return from suspension.
As the court of the first instance, Juszczyszyn was supposed to execute the security issued by Jaroczyński. But he acknowledged that it was not a judgment because it was issued by a defectively appointed judge. Jaroczynski received his nomination from the politicized, illegal neo-NCJ. The judge relied on the judgments of the ECtHR and the CJEU, which contested the status of the neo-NCJ and the nominations it had given to neo-judges.
However, Juszczyszyn did not want to strike at the rights of the parents, leaving them without coming to an arrangement on contacts with their children. He wanted to establish them as the court of the first instance. However, he did not have to do this, because, after he informed the parties about the doubts regarding the legality of the security issued by Jaroczyński, the parents themselves agreed on these rules in a settlement agreement. Juszczyszyn discontinued the case for that reason.
– On 2 January 2023, Koszewski initiated a second investigation, also on the basis of Article 107, para. 1, items 2 and 3. In it, Koszewski alleges that Juszczyszyn contested Neo-Judge Marcin Czapski’s official status and the effectiveness of his appointment. Furthermore, Koszewski alleges that the judge questioned the effectiveness of Czapski’s appointment to the position of vice-president of that regional court.
Czapski called on Juszczyszyn in September 2022 to supplement the alleged shortcomings in the application for additional employment. Czapski wanted Juszczyszyn to sign the application in his own handwriting, with a traditional signature, and to submit it through a special IT system.
Juszczyszyn replied that he had filed the application as they had been accepted in court to date (during the period of the epidemic). In other words, he sent it through a special system and additionally by e-mail. In the response, he also added that Czapski had not been properly appointed as a judge, and only a judge can be a vice-president of the court. He therefore considers his demand to be ineffective and pointless.
The additional occupation that Juszczyszyn took up was legal training of clerks. The judge had done this before and he had no problems with the previous court authorities for this.
Juszczyszyn: I will not be broken and intimidated
Judge Juszczyszyn is still facing a third disciplinary action. A photograph from a dinner in a Sopot restaurant appeared in the right-wing media in November 2019. Judges Juszczyszyn, Igor Tuleya and Iustitia president Krystian Markiewicz were in the photograph. The mayor of Sopot, Jacek Karnowski, and the mayor of Gdańsk, Aleksandra Dulkiewicz were sitting at the table with them. The right wing group and PiS made an uproar of this.
According to OKO.press, at the meeting of the College of the Regional Court in Olsztyn – after PiS’s changes, its membership includes the president of the Regional Court and the presidents of his subordinated District Courts – Maciej Nawacki claimed that this had to be clarified. And a resolution was passed to request Juszczyszyn to explain this. Marta Grabek-Banaś requested this on behalf of the president of the Regional Court. She is also a neo-judge and simultaneously the president of the District Court in Lidzbark Warmiński, nominated by Ziobro’s ministry.
Juszczyszyn replied to her that, according to the Act on the courts, the court president can only be substituted by the vice-president of the court and, in his absence, by an appointed judge. He emphasized that Grabek-Banaś is not a vice-president and that she is not a regional court judge. Because she received her nomination from the Neo-NCJ, which is not a body that is in compliance with the Constitution. Therefore, her appointment is not effective. And since this is the case, she has no right to demand any explanations from him.
The College met on this matter for the second time and the idea was raised that the local disciplinary commissioner should be notified of Juszczyszyn’s meeting with the city mayors, as well as his questioning of the legality of the neo-judge. But the resolution did not get passed. Which does not mean that the matter will not end up with the commissioner, because the president of the Regional Court, Michał Lasota, can refer it there.
OKO.press asks Judge Juszczyszyn about the dinner with the mayors. ‘I don’t have anything to hide. Iustitia won a grant from the Norwegian funds for the ‘Rule of Law – Common Cause’ campaign. Ruch Samorządowy Tak! [Eng.: Local Government Movement Yes!] is the campaign’s partner for Poland, the chairman of which is Karnowski, while Dulkiewicz is in the Movement’s council,’ Juszczyszyn tells us.
He adds: ‘In this campaign, there was a meeting on 11 November with citizens, together with a screening of the film “Sędziowie pod presją” [Eng.: Judges under pressure]. Therefore, we went to Sopot, we had a meal, which was paid for by Ruch Samorządowy [Eng.: Local Government Movement].’
Judge Juszczyszyn emphasizes in an interview with OKO.press: ‘For me, this case and the two pending investigations are a continuation of my repression for presenting legal views which are inconsistent with the political will of the ruling party, and which are supported by the Constitution.’
Why is he still negating neo-judges?
Juszczyszyn: ‘People appointed to judicial positions on the motion of the politicized NCJ, which is not a body referred to in the Constitution, do not acquire the status of a judge. They do not become judges because, in order for the President to effectively appoint them, a motion is required from the NCJ, which does not currently exist as a constitutional body.’
The judge continues: ‘I have consistently taken a stance in accordance with my beliefs and conscience and the constitutional norms. Those who prosecute me for this are breaching the fundamental principles, including judicial independence, and encroaching on a judge’s adjudicatory activities. I will not be intimidated and will never give up. I will always defend the independence of the courts and uphold the law, as well as the rights of citizens to an independent court, in accordance with European standards. My suspension lasting more than two years for implementing the 2019 judgment of the CJEU has only strengthened me and confirmed that my stance is correct.’
What the judge was suspended for and how he fought to return to court
Just to reiterate, Paweł Juszczyszyn was the first Polish judge to be suspended by the illegal Disciplinary Chamber. He did not adjudicate for almost two and a half years. This was punishment for implementing the CJEU judgment from November 2019. The Court then stated for the first time how the legality of the Disciplinary Chamber and the new, politicized National Council of the Judiciary and the legality of the nominations it had given (to neo-judges) should be assessed.
And Juszczyszyn performed this judgment. He ordered the presentation of the lists of support for the candidates to the new NCJ because he wanted to examine its legality. The judge wanted to do this because he had an appeal against a verdict issued by a neo-judge to examine. And it was then already known that a member of the neo-NCJ, Maciej Nawacki, simultaneously president of the District Court in Olsztyn, did not have all the signatures of support from the environment, which were required by law. This is because some of the judges had withdrawn their support for him.
Juszczyszyn experienced reprisals for this. The deputy chief disciplinary commissioner, Michał Lasota, disciplined him for this, while the court president, Maciej Nawacki, removed him from adjudication for a month. Meanwhile, the Ministry of Justice revoked his secondment for adjudicating in the Regional Court.
Then, the illegal Disciplinary Chamber overturned Juszczyszyn’s monthly suspension in the first instance. But Minister Ziobro’s disciplinary commissioner appealed against this and the Chamber illegally suspended the judge indefinitely in the second instance in February 2020. Juszczyszyn’s implementation of the CJEU judgment was also the reason for PiS’s rapid enactment of the Muzzle Act, because this was intended to block the undermining of the changes being introduced in the courts by Zbigniew Ziobro.
However, Juszczyszyn, together with his attorney, Professor Michał Romanowski, fought for his return to adjudication. First, the District Court in Bydgoszcz reinstated him in April 2021 (within the framework of the so-called security measure), and then it did so within the framework of a final judgment which was recently passed.
Regardless of this, the Regional Court in Olsztyn ruled in a non-final judgment that the Disciplinary Chamber’s decision to suspend him was illegal and ordered its removal from the Supreme Court’s website. Whereas earlier, the Regional Court had issued a protective order in the case, which the acting First President of the Supreme Court, Małgorzata Manowska, did not implement.
The judge should have returned to work on the basis of these judgments. But the president of his home District Court in Olsztyn, Maciej Nawacki, was blocking his return because he was not implementing the judgments. He claimed he was bound by the decision of the illegal Chamber. That is why Juszczyszyn and Professor Romanowski applied for his punishment. And the court imposed a 15,000 zloty fine on him, which could be replaced with custody – for obstructing his return to work.
The court also set a one-day deadline for reinstating Juszczyszyn. Nawacki did not do this, nor did he pay the fine. Therefore, Professor Michał Romanowski applied for the implementation of a custodial sentence for the court president and for further fines of 30,000 zlotys. Nawacki appealed against this.
However, Paweł Juszczyszyn has been ruling since July 2022. His over two-year suspension was overturned by Adam Roch of the Disciplinary Chamber as he held that it was groundless. This was one of the last decisions of that Chamber before it was liquidated – it was replaced by the Professional Liability Chamber. But the judge did not return to adjudicate in his home civil division, but President Nawacki transferred him to the family division as punishment.
Juszczyszyn has filed a lawsuit for this decision. He will also file an application with the ECtHR. After all, the judge has already recently won a case before the ECtHR, which he initiated earlier for his suspension by the Disciplinary Chamber.
Regardless of this, Judge Juszczyszyn, together with his attorney, Professor Michał Romanowski, are reporting Nawacki – but also Manowska – to the prosecutor’s office for failing to perform court orders. The prosecutor’s office is refusing to investigate, but this is being overruled by the courts ordering the initiation of proceedings.
Translated by Roman Wojtasz
The article was published in Polish in OKO.press on January 14, 2023.