The Sejm voted on the election of the new National Council of the Judiciary for the second term of office on Thursday, 12 May 2022 at 5.27 pm. Voting had not been planned earlier; it was suddenly introduced into the agenda as a so-called throw-in.

It is being speculated that this vote was part of an agreement between PiS and Zbigniew Ziobro’s Solidarna Polska (Solidary Poland). PiS could have just supported the election of the neo-NCJ mk II in exchange for concessions from the justice minister’s party on the presidential bill regarding the liquidation of the illegal Disciplinary Chamber.

This is important to Ziobro because most of the 15 judge-members of the Council are connected and associated with his ministry.

By electing the neo-NCJ for a second term of office, the PiS government is demonstrating that it is still disregarding the judgments of the ECtHR and the CJEU, which contested the legality of the new Council and the legality of the nominations it had given to judges (namely neo-judges).

PiS may have been encouraged by the European Commission’s position, as it is already sending official signals that it will not block the payment of billions of euros of funds to Poland from the National Reconstruction Plan. The EC wants to impose only three conditions involving the implementation of the CJEU judgment of 15 July 2021. At that time, the EU Court contested the legality of the Disciplinary Chamber. Therefore, the EC demanded the liquidation of the Chamber, the reform of the disciplinary system for judges and the reinstatement of the judges suspended by the Chamber.

In reaching a compromise with the PiS government, the Commission does not envisage putting pressure on the Polish authorities to restore an independent NCJ, in accordance with the Polish Constitution. 

The MPs were also not concerned about the information that five members of the Council to date were supposed to have belonged to a discussion group on WhatsApp called Kasta/Antykasta [Caste/Anticaste], which we revealed in a joint investigation by OKO.press and Onet. The repentant Judge Arkadiusz Cichocki says Maciej Mitera, Maciej Nawacki, Rafał Puchalski, Dariusz Drajewicz and Jarosław Dudzicz were members of this group. Judges in this group who are close to the now former deputy minister of justice, Łukasz Piebiak, discussed, among other things, the proceedings that the NCJ was handling. 

On Thursday, KO [Civic Coalition] MP Kamila Gasiuk-Pihowicz said in the Sejm that the election of the neo-NCJ mk II means a further conflict with the European Commission. And that this is the election of people who hate judges. However, there was no discussion on this, only a quick vote. The neo-NCJ mk II was chosen by MPs from the ruling coalition and Kukiz’15 parties, with the opposition MPs voting against.

Who will be in the neo-NCJ for the first time

Four of the 15 judge-members of the new NCJ will be a part of the Council for the first time. They are:

– Anna Dalkowska, a former deputy minister of justice, Minister Zbigniew Ziobro’s deputy. Although she was a regular judge of the District Court in Malbork, the neo-NCJ nominated her as high as to the Supreme Administrative Court, and the President appointed her. She is therefore a neo-judge.

– Stanisław Zdun, a judge of the Regional Court in Warsaw. He is a neo-judge, having received his nomination to the Regional Court from the neo-NCJ. He is also the vice-president of the District Court for the Capital City of Warsaw nominated by Ziobro’s ministry. Zdun is known for acquitting Wojciech Sumliński, a right-wing journalist, who was accused in connection with the work of Antoni Macierewicz’s military intelligence service verification committee several years earlier. Zdun has been in the headlines in recent months because Judge Piotr Gąciarek refused to adjudicate with him. 

– Irena Bochniak, judge of the District Court for Kraków-Podgórze and vice-president of the Regional Court in Kraków. She is running for membership of the neo-NCJ for the second time. She ran for the first time in 2021 for the position vacated by Teresa Kurcyusz-Furmanik, who retired. Her competitors then were the deputy minister of justice, Łukasz Piebiak, and Katarzyna Chmura, a judge from Malbork. The Sejm chose Chmura then.

Bochniak was promoted after PiS’s changes in the courts. She was first made president of the District Court for Kraków-Podgórze and then vice-president of the Kraków Regional Court.

– Krystyna Morawa-Fryźlewicz, judge of the District Court in Nowy Targ and president of that court nominated by Minister Ziobro’s ministry. Her candidature comes as a surprise. But she should be associated with three other candidates for the neo-NCJ mk II. These are the judges from Kraków: Dagmara Pawełczyk-Woicka, Paweł Styrna and Irena Bochniak, because the letters of support for this group of judges were largely signed by the same judges, mainly from Kraków and the surrounding area. Morawa-Fryźlewicz is well-known in Nowy Targ for her promotion of the ‘cursed soldiers’ – she herself is the daughter of one of them. 

Bochniak’s and Morawa-Fryźlewicz’s election to the new NCJ is somewhat of an emergency, because the recommendations for election were originally supposed to be the former deputy justice minister, Łukasz Piebiak, and current member of the Council, Jarosław Dudzicz. But PiS withdrew its recommendations for them. It was speculated that the candidacies were blocked by Minister Ziobro and President Andrzej Duda, because Piebiak, whose name appears in the context of the hate scandal, is said to be in conflict with the minister of justice. Meanwhile, as revealed by ‘Gazeta Wyborcza’, Dudzicz was alleged to be the author of anti-Semitic posts.

Who from the current neo-NCJ received support from PiS and the Presidium of the Sejm

The other candidates (11) accepted for the second term of office of the neo-NCJ mk II are its current members:

– Katarzyna Chmura, a judge of the District Court in Malbork. She has been in the current NCJ for a year, having been elected to fill a vacancy. She is considered to be a part of the dove faction.

– Dariusz Drajewicz, a judge of the District Court for Warszawa-Mokotów and a member of the current neo-NCJ. He is known for holding several positions at the same time. He was vice-president of the Regional Court in Warsaw for several years, but the media revealed that he was not overworked in that position. He is currently adjudicating on secondment in the Court of Appeal. The neo-NCJ nominated him to the illegal Disciplinary Chamber, but this was overturned by the Chamber of Extraordinary Control and Public Affairs appointed by PiS. Then, the neo-NCJ gave him a nomination to the Court of Appeal in Warsaw. His partner, Joanna Oliwa also received a nomination to the Regional Court from the neo-NCJ. 

– Grzegorz Furmankiewicz, a judge of the Regional Court in Krosno, member of the current neo-NCJ. He is not treated as belonging to any faction. He is considered to be standing in the middle. He was previously a regular judge of the District Court in Jasło. Under the current government, Ziobro’s ministry appointed him vice-president of the Regional Court in Krosno. Meanwhile, the current NCJ, of which he is a member, appointed him judge of that Regional Court in Krosno. He is therefore a neo-judge. Thanks to Ziobro’s ministry, he was also a member of examination committees for attorneys-at-law (for which he was additionally compensated).

– Marek Jaskulski, a judge of the District Court in Poznań-Stare Miasto, a member of the current neo-NCJ. He is considered to be in the hawk faction. He was nominated by PiS.

– Joanna Kołodziej-Michałowicz, a judge of the District Court in Słupsk, a member of the current neo-NCJ. The Council gave her a nomination for the office of regional court judge (the president has not yet appointed her), as it did for her husband, Andrzej Michałowicz, president of the Regional Court in Słupsk. Her sister, Ewa Kołodziej-Dubowska, from the court in Białystok also received a nomination to a court of a higher instance from the new NCJ. Kołodziej-Michałowicz is not included in any faction in the new NCJ, although she is said to be closer to the hawks. As we revealed in OKO.press and Onet, Kolodziej-Michalowicz’s husband was alleged to have belonged to the Kasta/Antykasta group.

– Ewa Łąpińska, a judge of the District Court in Jaworzno. She is a member of the current neo-NCJ and is considered to be in the dove faction.

– Zbigniew Łupina, a judge of the District Court in Biłgoraj. He is a member of the current neo-NCJ and is considered to be in the hawk faction. He tried to be promoted to the Supreme Administrative Court for a long time, but withdrew from this. He is the president of the District Court in Biłgoraj, nominated by Ziobro’s ministry. In 2021, it was headline news that his wife might have voted remotely for him in the Council.

– Maciej Nawacki, a judge of the District Court in Olsztyn, the president of that court nominated by Ziobro’s ministry and a member of the current neo-NCJ. He is considered to be in the hawk faction. He is one of the symbols of the bad change in the courts. It is he who is blocking the execution of court judgments and is not allowing the suspended Judge Paweł Juszczyszyn to adjudicate. Nawacki is in conflict with the Olsztyn judges, to whom he even sent the police for picketing in solidarity with a judge who was being prosecuted.

The new NCJ, of which he is a member, gave him a nomination to the office of judge of the regional court and the Supreme Administrative Court. When running for office in the current NCJ, Nawacki did not have all the required signatures of support, because some judges withdrew them. As a result, the election of the whole of the Council was being contested, because all the judge-members were elected in one vote. 

– Dagmara Pawełczyk-Woicka, the president of the Regional Court in Kraków, nominated by Ziobro’s ministry. She is a member of the current neo-NCJ and Zbigniew Ziobro’s former schoolmate. Pawełczyk-Woicka is heavily conflicted with the judges in Kraków. She transferred four judges to other divisions on disciplinary charges for implementing the ECtHR and CJEU judgments. She also suspended Judge Maciej Ferek and Anna Głowacka for this for a month.

Pawełczyk-Woicka was promoted to the office of regional court judge by the new NCJ (she is a neo-judge), while her partner, Judge Dariusz Pawłyszcze was promoted to the Civil Chamber of the Supreme Court. She is not considered to be a part of any faction in the NCJ, but is believed to be closer to the hawks.

– Paweł Styrna, a judge of the Regional Court in Wieliczka. He was the chairman of the current NCJ and is considered to be a part of the dove faction.

– Rafał Puchalski, a judge of the District Court in Jarosław, the president of the Regional Court in Katowice nominated by Ziobro’s ministry. He is a member of the current neo-NCJ. His name came up in the context of the hate scandal. Rzeszów judges filed a precedent-setting action against him for the way they are treated in court. He retaliated by reporting them to the disciplinary commissioner for issuing judgments in line with the Constitution.

Puchalski was previously a member of an online group supporting PiS and President Duda. The new NCJ, of which he is a member, gave him a nomination to the illegal Disciplinary Chamber, but the President did not appoint him. So it then gave him a nomination to the Court of Appeal in Rzeszów as well. He is considered to be in the hawk faction.

The article was published in Polish at OKO.press on 12 May 2022.