A staffing earthquake in the old, legal Civil Chamber of the Supreme Court.

Neo-Judge Małgorzata Manowska, who is acting as the First President of the Supreme Court, suddenly dismissed all five heads of division on Wednesday, 29 December 2021. Those who were dismissed were old, legal judges of the Supreme Court. Some managers of the divisional secretariats also lost their posts together with them.

The dismissals are being made to make room for the neo-judges who will assume full control of the important, legal Civil Chamber and pacify the old judges who still have a majority here.

Regardless of this, Małgorzata Manowska, in her capacity as First President of the Supreme Court, is also blocking the assessment of the legality of all the neo-judges in the Supreme Court, including herself. The old, legal judges of the Supreme Court are to make this assessment. They submitted requests for preliminary rulings to the Court of Justice of the European Union on the basis of the case of Judge Waldemar Żurek – one of the symbols of the free courts.

In October, the CJEU issued a judgment in which, among other things, it contested the status of the neo-judges of the Supreme Court, namely the judges nominated by the new, politicised National Council for Judiciary.

But, since October, Manowska has been blocking Żurek’s case files and the judges have been unable to implement the CJEU ruling. And now it turns out that Manowska, as the First President of the Supreme Court, has blocked these files for at least another two months by requesting a legal analysis of this case.

‘This is unacceptable at this stage of the examination of this case. This is an intrusion into the sphere of adjudication of judges considering the case,’ legal judge Dr. Hab. Marta Romańska of the Civil Chamber tells us.

Meanwhile, Judge Waldemar Żurek tells OKO.press: ‘I will not let this case go. Manowska is not fulfilling her duties by not allowing the implementation of the CJEU judgment. She is delaying the proceedings, playing for time and exposing the State Treasury to having to pay compensation. I will be stubborn and everything will be settled in the future.’

Judge Żurek’s attorneys, namely Attorneys-at-Law Michał Wawrykiewicz and Sylwia Gregorczyk-Abram, will notify the European Commission about the blocking of the implementation of the CJEU judgment. We write about this matter and Manowska’s blocking of the files later in the article.

How the neo-judges are taking over the Civil Chamber

Małgorzata Manowska, who is acting as the First President of the Supreme Court, dismissed Dariusz Dończyk, Agnieszka Piotrowska, Karol Weitz, Grzegorz Misiurek and Teresa Bielska-Sobkowicz from their positions as heads of division on Wednesday 29 December.

Their dismissal before the end of the year was expected, because a reorganisation of the Chamber was announced before Christmas.

The reorganisation of the Chamber is being forced through by Professor Joanna Misztal-Konecka, who is acting as its new president. The President appointed her president of the Civil Chamber in late September 2021. Her election can be contested because she was only nominated as a candidate for the office of president by neo-judges, who have a minority in the Civil Chamber.

The legal judges boycotted the session of the Assembly of Judges of the Chamber acknowledging that it could not have been held. This is because the electoral assembly had previously been postponed until the issuance of several judgments of the CJEU regarding the legality of the neo-judges.

These CJEU judgments are key not only to the ability of the neo-judges to issue judgments, but also to their ability to take part in the sessions of the judicial self-government (namely the Assembly). But Małgorzata Manowska, acting as the First President of the Supreme Court, disregarded the voice of the legal judges and, as the so-called ‘commissioner’, held the election of the candidates to the post of the new president of the Chamber.

Joanna Misztal-Konecka was not concerned about the voices of the legal judges either. She proposed a reorganisation of the Chamber. Małgorzata Manowska supported this and, in mid-December 2021, put the decision on the reorganisation to the vote of the Board of the Supreme Court (which gives its opinion on some of the Supreme Court’s decisions).

However, the old judges did not attend the Board meeting. They have been boycotting its sessions until Manowska suspends the illegal Disciplinary Chamber, which will constitute the implementation of the CJEU ruling of July 2021.

The old judges have half the votes in the Board and the sessions cannot be held without them because there would not be a quorum. But Manowska orders voting by circulation and counts a lack of vote as an abstention.

According to the old judges, this is illegal. Several votes have already taken place in this way, including on the reorganisation of the Civil Chamber.

Neo-president is ‘tidying up’ in the Chamber

The plan of the reorganisation of the Civil Chamber is this. The current five divisions, which receive cases from various regions of Poland, are to be liquidated. Three new divisions are to be established in January 2022. And they will be headed by new presidents, neo-judges.

These divisions will no longer receive cases which depend on which region of Poland they come from. Now, all cases from all over Poland will be sent to division I, where the so-called pre-trial stage will be held. This is a legal assessment of whether the case is suitable for consideration by the Supreme Court.

Each division had been doing this separately until now. It is speculated that the head of this division is to be Neo-Judge of the Supreme Court, Tomasz Szanciło.

If the case passes the preliminary hearing and is accepted for consideration by the Supreme Court, it will go to division II, which will issue a ruling. It is speculated that this division is to be headed by Neo-Judge of the Supreme Court, Marcin Krajewski.

In turn, division III will only handle legal issues, among other things. It is speculated that it will be headed by Neo-Judge of the Supreme Court Kamil Zaradkiewicz, whose election to the Supreme Court by the new NCJ was personally supervised by Minister of Justice Zbigniew Ziobro.

The Supreme Court argues that the reason for the reorganisation is accelerate the consideration of the cases and to move the existing heads of division to full adjudication. However, there is no denying that they will be replaced by new heads from among the neo-judges, who will now also adjudicate less.

Furthermore, the reason for the backlog is not the poor organisation of the work of the divisions, but Minister Ziobro’s ‘reforms’ in the courts and President Andrzej Duda’s decisions. Their effect is the appointment of a new, politicised NCJ, the legality of which has been contested by the CJEU and the ECtHR. The courts also contested the legality of the judicial nominations it made, including to the Supreme Court.

This created a problem as to whether the neo-judges could adjudicate. Furthermore, it is the president who decides how many judges there are in the SN and announces recruitments to fill vacancies.

‘Moods in the Chamber are bad. This is the assumption of full control over the old judges,’ a person familiar with the background to the workings of the Supreme Court tells us.

How Małgorzata Manowska blocked the implementation of the CJEU judgment

In addition to the Civil Chamber, the neo-judges also have control over the illegal Disciplinary Chamber and the illegal Chamber of Extraordinary Control and Public Affairs which were established by the Law and Justice Party (PiS). The old judges still have control over the legal Criminal Chamber, the president of which is Michał Laskowski, and the Labour and Social Security Chamber, the president of which is Piotr Prusinowski.

The whole of the Supreme Court is also primarily headed by a neo-judge of the Supreme Court, namely Małgorzata Manowska, a former deputy of Minister of Justice Zbigniew Ziobro. She was also appointed to the office of First President of the Supreme Court by the President in a procedure that enables the legitimacy of her appointment to be contested. This is because the President’s ‘commissioners’ disregarded the voices and motions of the legitimate judges during the Assembly of Judges of the Supreme Court, which was electing candidates for the office of first president.

Manowska is now showing with her decisions that she is either in two minds, not knowing what to do, or she keeps with the neo-judges. It is she who is allowing the illegal Disciplinary Chamber to operate, despite its suspension by the CJEU in July 2021. It is she who is allowing the suspension to continue for judges implementing EU law – such cases are being referred to the Disciplinary Chamber all the time.

But she is simultaneously herself blocking the files of an important case regarding the implementation of a CJEU judgment. This is the judgment of October 2021, in which the Court contested the possibility of transferring judges between divisions in a court, considering this to be a form of repression. It also contested the legality of the neo-judges of the Chamber of Extraordinary Control and Public Affairs for the first time.

However, this judgment is relevant to the legality of all neo-judges of the Supreme Court, including Manowska.

After the CJEU judgment, the files quickly returned to the Supreme Court, but have not reached the judges who submitted the request to the CJEU for a preliminary ruling to this day. They are only at Manowska’s disposal.

How Żurek brought about an important judgment of the CJEU

Just to reiterate. The requests for the preliminary rulings were submitted to the CJEU by a bench of seven legal judges of the Supreme Court from the Civil Chamber in 2019. The questions were asked in the light of the case of Judge Waldemar Żurek of the Regional Court in Kraków, the press officer of the old NCJ. Żurek returned to adjudicate in the Kraków court after the legal NCJ was dissolved by PiS – during its term of office.

However, since then, he has been the most persecuted judge in Poland because he was one of the first to start defending the free courts. And he has become one of the current government’s number one enemies. He already has 16 disciplinary cases – for just about anything – and the National Prosecutor’s Office is also after him.

One of the first administrative reprisals that he encountered was his transfer to another civil division, where he was overburdened with work. This was done without his consent by the new court president, Dagmara Pawełczyk-Woicka, a nominee of Minister Ziobro and a member of the new NCJ.

Żurek appealed against this to the new NCJ and then to the Supreme Court. But the case circulated there between the new and old Chambers. And when the legal Civil Chamber wanted to examine the appeal, the case was quickly settled by a refusal from Neo-Judge Aleksander Stępkowski of the Chamber of Extraordinary Control and Public Affairs. He is one of the founders of Ordo Iuris and is currently the Supreme Court’s press officer.

Stępkowski examined the case even though he did not have the original files.  But the Civil Chamber has not let Żurek’s case go. In this case, a bench of three judges asked a legal question of a panel of seven Supreme Court judges in March 2018 as to whether Stępkowski could, as a judge, examine the case and whether he had issued a legal judgment.

Meanwhile, in 2019, the seven-judge panel of the Supreme Court did not issue a judgment, but submitted a request to the CJEU for a preliminary ruling about the legality of Neo-Judge Stępkowski.

And the CJEU issued such a ruling in October 2021. Now, after the file returns from the Court, the panel of seven judges should issue its ruling, in which, if it implements the CJEU’s judgment, it may rule that Aleksander Stępkowski is not a legal judge of the Supreme Court, and that the judgment he issued in Żurek’s case is not a legal judgment.  This would be the first ruling by the Supreme Court contesting the legality of a Neo-Judge of the Supreme Court.

Even before the CJEU issued its ruling, we warned that the new president of the Civil Chamber, Małgorzata Misztal-Konecka, could torpedo the examination of the case by the panel of seven judges of the Supreme Court. Because its membership needs to be supplemented. This is because three legal judges have retired. We warned that neo-judges could be co-opted to the panel.

Manowska is holding the files of the Żurek case

It now appears that it is Małgorzata Manowska who is blocking the implementation of the CJEU judgment by not forwarding the case files to the adjudicating panel which asked the preliminary questions.

She first refused to hand them over, explaining that they were needed to consider whether an investigation should be initiated with respect to Stępkowski for hearing Żurek’s case. This was demanded by the Board of the Supreme Court in 2019. Manowska was supposed to consider whether to ask the president to appoint an extraordinary disciplinary commissioner for the case. And she was supposed to have needed the files for that.

However, Manowska still will not hand over the files with the CJEU judgment, because, in turn, she has now ordered a legal analysis in the case. She has just informed the panel, which is still waiting for the files to be released.

It arises from Manowska’s letter that, in view of the gravity and significance of the case ‘to the national legal order,’ she has ordered an analysis of the CJEU judgment from the Research and Analysis Department of the Supreme Court, which is subordinated to her.

Manowska writes that the analysis is to address ‘the way in which the national court makes its findings regarding the validity of the ruling issued by a body consisting of a single judge in the last instance [namely Aleksander Stępkowski – ed.] taking into account all the conditions and circumstances in which the process of appointing the judge was conducted’.

Manowska continues, writing about the ‘complexity of the CJEU’s response’ and the ‘need to resolve the doubts that constitute the grounds for the Supreme Court asking the legal question’ of the CJEU. She also makes the assurance that the order will not contribute to any protraction in the examination of Judge Żurek’s case. Meanwhile, the analysis itself is to be prepared by the end of February 2022.

What Manowska is planning with regard to the CJEU ruling

Manowska is not writing to the panel as to why she ordered the legal analysis. There are two possibilities. Either she ordered it for herself in order to be able to form a legal position for herself and make possible decisions to further settle the case, e.g. to refer it to the full panel of the Civil Chamber for examination.

Or she wants to add the note to the case files before forwarding them to the panel of seven Supreme Court judges.

According to legal Supreme Court Judge Dr Hab. Marta Romańska of the Civil Chamber, the latter option is inadmissible at this stage of the case. ‘This would be an intrusion into the sphere of adjudication of the judges examining the case,’ Judge Romanowska tells us.

People familiar with the background to the workings of the Supreme Court tell OKO.press that, until now, whenever a legal issue arose in the Supreme Court, immediately after it was registered, the head of the division could order the preparation of a legal analysis by the assistant judges or the Analysis Department. Such an analysis may be helpful for forming the bench, but it is entirely at the discretion of the bench as to whether or not to make use of it.

However, after the bench has been appointed, the head of the division could no longer order such analyses. At this stage, only the whole bench could do this.

Our interviewees say the president of the court could not order such an analysis at any stage of a case that was in the Supreme Court. Unless he himself initiated the legal issue or ordered the analysis only for himself, to assess whether there are any discrepancies in the line of judgments. However, there are none in this case, as the ruling has not yet been issued.

Meanwhile, Manowska claims that, in commissioning a legal analysis on the ruling of the CJEU, she is doing what has been the practice to date in the Supreme Court. However, Żurek’s case is very advanced. It is being handled by two panels of three and seven judges. There is also a CJEU ruling. And only the panel can decide on any procedural decisions.

So why did Manowska order the analysis? Our interviewees speculate that she may be playing for time. Either she is preparing to possibly torpedo the implementation of the CJEU’s judgment or to contest the ruling of the seven-judge panel of the Supreme Court in the future.

According to our interviewees, the preparation of the legal analysis should not withhold the transfer of the files in order to implement the CJEU judgment. This is because the analysis can be prepared on the basis of the files that are on hand.

Wawrykiewicz: we shall notify the EC about the failure to implement the CJEU judgment

Michał Wawrykiewicz, Attorney-at-Law, who together with Sylwia Gregorczyk-Abram, Attorney-at-Law, is Judge Waldemar Żurek’s proxy, is appalled by Manowska’s blocking of the files.

Attorney Wawrykiewicz tells us: ‘Małgorzata Manowska’s conduct is directly in breach of the European legal order, because after the judgment of the CJEU, the matter, together with the files should be forwarded immediately to the panel asking the preliminary question’.

He adds: ‘We, the proxies, have also asked Manowska to forward the files to the panel for the immediate consideration of the case’. Wawrykiewicz emphasises that Manowska’s retention of the files is blocking the Supreme Court from issuing a ruling on the very important issue of ascertaining the status of the neo-judges in the Supreme Court, including Manowska.

Wawrykiewicz announces: ‘Manowska is playing at being a judge in her own case. However, she is breaching EU law. We shall not leave it at that. We shall ask the European Commission to intervene, as it is the body that, according to the law, upholds the EU treaties.’

Translated by Roman Wojtasz

The article was published on 29 December 2021 at OKO.press.