The illegal and politicized neo-National Council of the Judiciary will elect new neo-judges to the Supreme Court at a meeting planned for 14–17 March 2023. Four positions are to be filled in the legal Labour and Social Insurance Chamber of the Supreme Court. Seven people are running for these positions, their profiles are presented later in the article. The neo-NCJ will hold public interviews, at which they will speak about themselves, which is new for this unconstitutional body.

The neo-NCJ is advertising this as proof of the transparency of the recruitments. 

But this form of giving nominations to the Supreme Court proves nothing. Because the neo-NCJ has already given nominations to weaker candidates, to Minister Ziobro’s nominees, their members and families, and even candidates who did not meet the statutory criteria on many occasions.

The recruitment for the vacancies in the Labour Chamber is not the only one that the neo-NCJ plans to hold this year. Two more recruitments to the legal Civil Chamber, in which as many as 15 positions are to be filled, are still to be settled. A recruitment to two vacancies to the Chamber of Extraordinary Control and Public Affairs established by PiS, which only has neo-judges of the Supreme Court, is also waiting to be settled.

These three recruitments do not yet have dates set for neo-NCJ meetings. But when they are settled, the neo-judges will be in the decisive majority in the Supreme Court over the old, legal judges. And they will be able to vote everything through at the general assembly of judges.

The neo-judges are also holding managerial positions in the Supreme Court. Małgorzata Manowska is acting as the First President of the Supreme Court. The legal Civil Chamber is managed by the acting president, Neo-Judge Joanna Misztal-Konecka (the legal judges still have the majority here, for the time being). The Control Chamber is managed by neo-Judge Joanna Lemańska, a good friend of President Duda.

The old judges manage two more Chambers. The Labour and Social Insurance Chamber is headed by President Piotr Prusinowski. The old judges have a majority here. In turn, the Criminal Chamber, where the old judges also have a majority, is managed by President Michał Laskowski. But his term of office ends in May 2023 and his place might be taken by a neo-judge.

There is also the new Chamber of Professional Liability, which was appointed and staffed by the President. Legal Judge Wieslaw Kozielewicz stands at its helm. However, he has no problem adjudicating with neo-judges, who have a majority in that Chamber.

The Supreme Court Chamber appointed by PiS crushes the neo-NCJ’s decision

17 judges currently adjudicate in the Labour and Social Insurance Chamber. It has 12 legal Supreme Court judges. There are 5 neo-judges, but, if the neo-NCJ fills another 4 positions, that would make 9.

The recruitment to this Chamber, which is planned to be settled at this meeting of the neo-NCJ, is not new. It is a repetition of the recruitment that was already settled in October 2021. As many as 7 people then received nominations to the Labour Chamber, of whom the President appointed just 3 people. Because the other 4 nominations were challenged by the Chamber of Extraordinary Control and Public Affairs, which was appointed by PiS.

Three judges, whose candidacies were rejected by the neo-NCJ appealed there. And, in June 2022, the Chamber agreed with them and repealed the resolution of the neo-NCJ, in the part that applied to 4 nominations. The recruitment is now being repeated.

The Chamber of Control harshly assessed the decision of the neo-NCJ in 2021. It acknowledged that this body mainly took into account whether the candidate had experience in handling labour and social insurance law cases as the criterion for awarding a promotion to the Supreme Court. However, another criterion was whether the judge had academic titles and achievements. This was awarded a bonus.

However, the Chamber of Control found that the neo-NCJ did not observe its criteria. In the justification of its defective judgment (it is defective because it was issued by neo-judges of the Supreme Court), the Chamber wrote: ‘The allegations, which were raised by all the appellants regarding the lack of comprehensive consideration of the nomination material, the failure to assess all candidates based on uniform and transparent criteria, as well as the failure to clarify the essence of the decision of the NCJ and the inability to verify the correctness of the decision made by the Council, should be considered reasonable.’

And the Chamber of Control further emphasizes: ‘There is insufficient uniformity and consistency in the case of the selection criteria referred to by the Council. It can be acknowledged that, in justifying the recommendation of some of the candidates or the refusal to give recommendations in the case of others, it is doing so arbitrarily.’

The Control Chamber points out the neo-NCJ’s errors

Why did the Chamber of Control of the Supreme Court acknowledge that the neo-NCJ awarded nominations arbitrarily? Because, when nominating candidates, it once gave preference to just academic experience, ignoring the lack of experience in the application of labour law (acknowledging that this is not a necessary condition). Whereas, in the case of the candidates who did not have academic experience, it rewarded experience in applying the law.

However, in the case of the candidates who were then rejected, the neo-NCJ acknowledged the lack of academic experience or experience in applying labour law as being a failure to meet the criteria. The Chamber of Control: ‘Given the above manifestations of inconsistency on the part of the NCJ, the general degree of justification of the criteria that ultimately determined that a given candidate would receive a recommendation or not should be criticized.’

In explaining its choice, the Council repeatedly referred to vague criteria, which actually prevented the establishment of which quantifiers ultimately determined the final content of the contested resolution (e.g. distinctive legal knowledge, a lack of diverse professional experience, a lack of outstanding legal knowledge or a lack of outstanding academic and teaching activity).

Given the level of their generality, as well as the frequent laconic nature of the justifications on this, there is no way of verifying the correctness of a part of the resolution that was adopted [by the neo-NCJ – ed.].’

That is not all. Furthermore, the Control Chamber held that Agnieszka Żywicka – who then received a nomination – might not satisfy the statutory criteria for being recruited to the Supreme Court. This is because the Act on the Supreme Court states that a person who has at least ten years of experience as a judge, prosecutor, the President of the General Counsel to the Republic of Poland, its vice-president or counsel, may be appointed to the office of judge of the Supreme Court. Or he must have practised the profession of attorney-at-law, legal counsel or notary public in Poland for at least ten years.

These requirements do not need to be satisfied by a person who ‘holds the academic title of professor or the academic degree of doctor habilitatus in law and has worked at a Polish university, the Polish Academy of Sciences, a scientific and research institute or another academic institution’.

The neo-NCJ acknowledged that Żywicka had satisfied these criteria. Because it acknowledged that she ‘holds a doctoral degree in administrative law and administrative proceedings, which she gained in Bulgaria, which is equivalent to obtaining a degree of doctor habilitatus in Poland’.  Żywicka earned such a degree from the Varna Free University.

However, in its decision, the Control Chamber held that the neo-NCJ had not presented any evidence that the Bulgarian degree was equivalent to the title of doctor habilitatus in law in Poland.

Who can receive a nomination to the Labour Chamber of the Supreme Court

For these reasons, the neo-NCJ now has to repeat the recruitment to four positions in the Labour and Social Insurance Chamber. It cannot be ruled out that the neo-NCJ will once again give nominations to the same people it promoted a year and a half ago and whose nominations were overturned by the Control Chamber.

They are:

• Dr hab. Jarosław Czerw – legal counsel, former secretary of the Gościeradów Municipality near Kraśnik and former councillor of the Kraśnik County Council (from the Łączy Nas Powiat Kraśnicki group). He was previously deputy head of the county administration and chairman of the county council. Professor of the Jan Kochanowski University in Kielce. He was a candidate in almost 10 recruitments to various courts, including the Supreme Court.

He received a nomination to the Supreme Court in October 2021, even though the new NCJ had already given him a nomination to the Voivodship Administrative Court in Łódź. However, the Chamber of Control held that the law does not prohibit the submission of applications in several different recruitments at once. Interestingly, the President had already appointed Czerw to the administrative court in December 2022. What will the neo-NCJ do now? Will it promote him to the Supreme Court or reject his candidacy?

Dr hab. Agnieszka Żywicka – legal counsel, Vice-Dean for Student Affairs at the Faculty of Law and Social Sciences at the Jan Kochanowski University in Kielce. It was in her case that the Chamber of Control considered that she might not meet the statutory criteria for being promoted to the Supreme Court. Because her academic title obtained in Bulgaria might not be equivalent to the Polish title of doctor habilitatus in law.

Piotr Kwiecień, an attorney-at-law from Warsaw. The NCJ group evaluating the candidates in 2021 reported on him very briefly. It stated when he was born and that he graduated from the University of Warsaw and became an attorney-at-law in 2005. And that he has his own law firm. That is all. The note about his professional achievements took up half a page.

The neo-NCJ group that evaluated him then did not provide any other interesting information about the lawyer. That he had worked in banks and had been a member of the supervisory board of PKO TFI.  ‘Puls Biznesu’ wrote that he was associated with Tomasz Sakiewicz of ‘Gazeta Polska’, whom he represented before the court. He also defended journalists from that newspaper. ‘Puls Biznesu’ also wrote that Kwiecień had been a member of the supervisory board of TV Republika and of the supervisory board of Totalizator Sportowy. The lawyer did not receive a recommendation from the neo-NCJ group at the time, but even so was nominated by a vote of the whole of the NCJ.

He supported the Regional Prosecutor’s Office in Gorzów Wielkopolski. He has been an advisor to the Lubuskie Voivod for social affairs since March 2020, and the representative of the Lubuskie Voivod, Władysław Dajczak, (PiS) for family affairs since September 2020. Grzesiowski has previously applied to the Civil Chamber of the Supreme Court, but was unsuccessful. He received a nomination to the Supreme Court, although the neo-NCJ group did not give him a recommendation.

Dr Krzysztof Grzesiowski – legal counsel from Gorzów Wielkopolski. He was a judge at the District Court in Gorzów Wielkopolski in 2007–2009. But he did not work long as a judge, because he started to work on secondment at the Ministry of Justice in 2007. He worked there until January 2009, after which he left the judicial profession and became a legal counsel.

Who contested the first recruitment and is running again

Of those who did not receive nominations to the Labour Chamber in October 2021, three judges are still in the running. They a lso challenged that recruitment before the Chamber of Control, which ordered a part of it to be repeated. They are:

• Katarzyna Kałwak – judge of the District Court in Oleśno, associated with Iustitia. She is a kamikaze candidate. She is running to test the work of the new NCJ and possibly to appeal against the results of the recruitment to the Supreme Court.

• Ewa Styczyńska – judge of the Court of Appeal in Warsaw. Stryczyńska was publicized in the media during the period of the first PiS government in 2005–2007. She then became deputy director of the National School of the Judiciary and Public Prosecution. Minister Ziobro appointed her. As ‘Gazeta Wyborcza’ wrote then, the judge was trusted by Lech Kaczyński. She worked on secondment at the NCJ for three years from 2015. In 2001, she was responsible for a car accident in which four people were injured. However, she was not tried because the disciplinary court did not lift her immunity. She had already applied for promotion to the Supreme Court in 2018.

• Dr hab. Agnieszka Góra-Błaszczykowska – judge at the Voivodship Administrative Court in Warsaw, professor at the SWPS University of Social Sciences and Humanities. She has a good track record of hearing cases and her rulings hold up before the Supreme Administrative Court. She has also produced academic publications. The neo-NCJ group praised her when presenting her candidacy in 2021. However, she did not receive a nomination, although she had a positive recommendation from the group.

The article was published on March 12, 2023 in Polish in OKO.press and The Wiktor Osiatyński Archive.

Działania organizacji w latach 2022-24 dofinansowane z Funduszy Norweskich w ramach Programu Aktywni Obywatele – Fundusz Krajowy.

The organisation’s activities in 2022-24 with funding from the Norwegian Funds under the Active Citizens Programme – National Fund.