The new, politicised National Council of the Judiciary launched an attack at its meeting on Friday 28 May 2021. The so-called hawk faction is behind it. These are members of the Council associated with the former deputy minister of justice, Łukasz Piebiak, and supporters of a hard line in the courts.

They submitted two draft resolutions of the new NCJ. The first applied to Council Member Maciej Nawacki, who is simultaneously president of the Regional Court in Olsztyn.  Nawacki himself had requested a resolution by which the new NCJ would defend and praise him for blocking Judge Paweł Juszczyszyn’s return to the court.

In that resolution, the Council is simultaneously fiercely attacking the District Court in Bydgoszcz, which reinstated Juszczyszyn in his position. The Council is even calling for a hearing with the three judges who issued this precedent-setting ruling. However, the resolution does not contain a word about Maciej Nawacki disregarding the court’s judgments.

The hawk faction also wants a hard line reaction to the letter from Juszczyszyn’s lawyer, Professor Michał Romanowski, who sent an open letter to the First President of the Supreme Court, Małgorzata Manowska. In it, Professor Romanowski calls on Manowska to perform another judgment that is favourable for Juszczyn.

The hawk faction did not like the fact that the professor called Manowska a neo-president and a neo-judge. In both cases, the faction is demanding that the disciplinary commissioners and the public prosecutor’s office deal with the Bydgoszcz judges and Professor Romanowski instantaneously.

Nawacki calls for help from the new NCJ

The attack by the new NCJ was not expected. The Council was supposed to finish handing out judicial promotions on Friday 28 May. At its current meeting lasting several days, it gave out quite a few of them, including to the important Supreme Administrative Court. The promotion that inspired the greatest emotions was for Maciej Nawacki, a member of the new NCJ. Although he is a district court judge, he was nominated to an office as high as the Supreme Administrative Court. A similar promotion was expected on Friday for the wife of Disciplinary Commissioner Przemyslaw Radzik, who prosecutes independent judges.

However, the matter was postponed. Instead, two resolutions were placed on the agenda – in defence of Maciej Nawacki and Supreme Court President Małgorzata Manowska, who is a member of the new NCJ ex officio.

Nawacki filed the motion in his defence as president of the District Court in Olsztyn. He demanded that the new NCJ take a position on his case in the procedure of Article 186 of the Constitution, which states that the Council safeguards the independence of the courts and judges.

However, the new NCJ is not defending the independence of judges. It is not supporting independent judges who are being repressed and prosecuted. This was pointed out in an important judgment by the Supreme Administrative Court, which also ruled that the NCJ is not independent of the politicians.

However, it can be plainly seen that the Council defends ‘its own’, because it adopted a resolution in defence of Maciej Nawacki. It attacked the District Court in Bydgoszcz, which ordered the reinstatement of Judge Paweł Juszczyszyn to office in April 2021. The court ruled that his suspension by the Disciplinary Chamber in February 2020 was unlawful. Because the Chamber is not a legitimate court.

This precedent-setting ruling was issued by a bench consisting of Iwona Wiśniewska, Katarzyna Błażejowska and Anetta Marciniak.

However, President Nawacki disregarded the ruling and did not allow the judge back to work. Therefore, Juszczyszyn and the Olsztyn judges reported him to the prosecutor’s office. Judge Juszczyszyn also applied for enforcement of that judgment and the imposition of a PLN 15,000 fine on Nawacki.

Did the new NCJ breach the independence of the court in Bydgoszcz 

Now Maciej Nawacki has called for help from the new NCJ, of which he is a member. And it has come to his rescue. The resolution adopted on 28 May 2021 stipulates that the labour division of the District Court in Bydgoszcz had no right to deal with Juszczyszyn’s suspension by the Disciplinary Chamber, because it does not have the competence to do so. This is because it is a disciplinary matter.

Therefore, the NCJ will ask the President, the Minister of Justice and the Prosecutor General to take ‘all possible measures constituting the manifestation of the values arising from the constitutional separation of powers’ and ‘in order to avoid interpretational chaos arising from the discretionary interpretation of the law [by the Bydgoszcz court – ed.].’

In the resolution, the new NCJ acknowledged that the three judges who reinstated Juszczyszyn had committed a disciplinary act and the crime of overstepping their rights under Article 231 of the Penal Code.

‘In these realities, the actions taken by the president of the District Court in Olsztyn in implementing the resolution of the Disciplinary Chamber [regarding Juszczyszyn’s suspension – ed.] should be assessed as lawful,’ the new NCJ wrote in the resolution. It also acknowledged that Nawacki, who is disregarding the court’s ruling, is being harassed by ‘external entities’ and other judges. 11 members of the new NCJ voted in favour of such a resolution.

A discussion took place before the vote. Judge Zbigniew Łupina, who presented the resolution, made the assurance that the judiciary was waiting for the new NCJ’s position on this matter. Judge Leszek Mazur, the former head of the new NCJ, who was dismissed by the hawk faction, opposed the resolution. He said that Juszczyszyn’s case was still pending before the court and the Council should not interfere with this, as it could undermine the independence of the court in Bydgoszcz.

Senator Bogdan Zdrojewski from the Civic Coalition (he represents the Senate in the Council) also objected to the resolution. ‘I protest against this. This is incorrect. We are supposed to defend the activities of one of the members of the Council,’ Zdrojewski said. He emphasised that Nawacki could also have committed disciplinary acts by not implementing the judgment of the court in Bydgoszcz. Zdrojewski pointed out that the Disciplinary Chamber is not a court.

He added: ‘We should not take a position. Judge Juszczyszyn is the more aggrieved party today’.

The deputy head of the new NCJ, former Constitutional Tribunal Judge Wiesław Johan, who represents the president, also took the floor. ‘We can create a dangerous precedent because the case is pending before the courts. The NCJ’s interference will be a breach of the principle of judicial independence. We should not take a position at this stage,’ Johan warned. But the position was adopted anyway. Almost certainly with a great deal of support from the hawk faction.

Defend Manowska, condemn Juszczyszyn’s defence attorney

Another resolution was also unexpectedly put forward in defence of the President of the Supreme Court, Małgorzata Manowska, on Friday, 28 May 2021. It was filed by Judge Rafał Puchalski, president of the Regional Court in Rzeszów, a nominee of Ziobro’s ministry. Puchalski is assigned to the hawk faction. Other members of this faction include Maciej Nawacki, Jarosław Dudzicz and Marek Jaskulski. They are supported in their votes by PiS MP Arkadiusz Mularczyk (he represents the Sejm).

The resolution of the new NCJ is to be a response to the open letter and pre-enforcement notice that the lawyer, Professor Michał Romanowski – Paweł Juszczyszyn’s defence attorney – sent to President Manowska. The tone of the letter is harsh.

In it, the professor calls for the execution of the decision of the Regional Court in Olsztyn, which, in May 2021, withheld the execution of the Disciplinary Chamber’s decision to suspend Juszczyszyn as a further security measure.

The court in Olsztyn simultaneously ordered the Supreme Court to post a notice alongside the decision to suspend the judge (on the Supreme Court’s website) stating that ‘the effectiveness and enforceability [of this decision – ed.] has been suspended for the duration of the proceedings to establish that the resolution in question is not a resolution of the Supreme Court’.

The resolution on the matter was presented by Rafał Puchalski. He said it was to be about the breach of the gravity of the office of the First President of the Supreme Court and her good name. He emphasised that Professor Romanowski had contested her status as president and judge of the Supreme Court, because, in his letter, he had written about her as neo-president, neo-judge.There is no such mention on the Supreme Court’s website to date, hence Professor Romanowski’s pre-enforcement demand. His letter is dated 26 May and must have hurt the hawk faction in the new NCJ, because it demanded an immediate response from the Council.

The resolution is supposed to condemn Professor Romanowski and accuse him of breaching the ethics of the profession of attorney-at-law. Puchalski said that his letter was an expression of frustration and a petty need for publicity in the media. He claimed that Professor Romanowski could have committed a crime of insulting a constitutional body. And this requires a response from the Supreme Bar Council and the authorities of the University of Warsaw, with which the professor is associated.

The resolution also contains a provision that the Council expects proceedings to be initiated against the professor, including disciplinary proceedings.

Senator Bogdan Zdrojewski opposed this resolution, saying that it constituted interference in pending court proceedings. ‘The NCJ cannot interfere in every letter. This is not the role of the NCJ; this is of a political dimension,’ Zdrojewski emphasised. Judge Wiesław Johan agreed with him.

Judge Jarosław Dudzicz, president of the Regional Court in Gorzów Wielkopolski nominated by Ziobro’s ministry, was in favour of the resolution. He struck a high note. ‘How citizens view us, whether we safeguard the independence of the courts, depends on the adoption of this position. It would be shameful if such a position did not exist,’ said Dudzicz. In his opinion, the letter from Juszczyszyn’s attorney is offensive to Manowska, including as a woman.

In turn, Maciej Nawacki, thundered that, if the new NCJ does not react, there will be anarchy. He said that a stop must be put to the question of the status of judges nominated by the new NCJ (Manowska is also such a judge). He warned that the example of the Bydgoszcz and Olsztyn courts that challenged the Disciplinary Chamber could be followed by other courts. ‘Writing that Manowska is not the First President of the Supreme Court breaches the foundations of the legal order,’ Nawacki alleged.

Zdrojewski answered him: ‘The NCJ applies a chilling effect to various parties. It is entering into politics.’ Meanwhile, Judge Leszek Mazur says the resolution regarding Manowska is an ‘impulsive, reflex reaction’.

However, the resolution was not voted on; the matter was put off until the next session. During the break, the head of the new NCJ, Paweł Styrnal, called President Manowska, who told him that she would ask for a reflection on the NCJ’s position.

Juszczyszyn’s attorney is not afraid

The matter of Professor Michał Romanowski’s letter will continue not only in the new NCJ. Because the Supreme Court’s press officer, Aleksander Stępkowski, is making it clear that the Supreme Court will not implement the judgment of the court in Olsztyn. As he told OKO.press, ordinary courts cannot challenge rulings of the Supreme Court.

Only that the Disciplinary Chamber is not a legal court, which also arises from the rulings of the CJEU, the Supreme Court and the rulings of the Court of Appeal in Warsaw and the Court of Appeal in Kraków.

That is why Professor Romanowski is announcing that, if the president of the Supreme Court, Małgorzata Manowska, does not comply with the ruling of the court in Olsztyn, he will file a notice with the prosecutor’s office against her, and will also file a motion for enforcement, in which he will demand that she be fined 15,000 zlotys.

In an interview with OKO.press, Romanowski emphasises that he will not be intimidated by the resolution of the new NCJ. ‘The fact that Małgorzata Manowska is a neo-Supreme Court judge and neo-president arises from the case law of the CJEU and the Supreme Court. As a lawyer I am obliged to defend my client’s freedom and dignity. I am practising my profession,’ says Professor Romanowski. He reiterates that Nawacki has not allowed Pawel Juszczyszyn to adjudicate for over a year and has had his salary reduced by 40%. ‘While Manowska, who is a legitimate judge of the court of appeal and a doctor of law is declaring through the Supreme Court’s press officer that she will not execute an effective judgment of the Regional Court in Olsztyn. This is inconceivable’, emphasises Romanowski.

Juszczyszyn’s attorney also tells OKO.press that he expected such a resolution from the new NCJ. ‘The people who are its members from the current authorities are judges who play a subservient role to the authorities in order to introduce an authoritarian system and destroy the independent courts. Their resolution suits the methods of organising trials for show and is intended to intimidate further judges and benches in Bydgoszcz, as well as Olsztyn, for rulings that do not comply with the expectations of the authorities,’ says Professor Michał Romanowski. And adds: ‘I will not be intimidated; I am fulfilling my mission as a professor of law. A professor has to be uncompromising in his thinking and must tell the truth. I will consistently continue to defend Juszczyszyn. And if there are proceedings against me, I will face them. All these people should remember that the law does not die. And the time will come to be held accountable.’