The ‘hawks’ are taking control in the new NCJ. Preparations for the vetting of judges by Mariusz Jałoszewski, OKO.press, 21 January 2021

The ‘hawks’ are taking control in the new NCJ. Preparations for the vetting of judges

 

Mariusz Jałoszewski, OKO.press, 21 January 2021

Link to the original publication in Polish:

https://oko.press/jastrzebie-przejmuja-wladze-w-nowej-krs/

 

The chairman of the neo-NCJ, Leszek Mazur has resigned. This ends the legal dispute over the legality of his sudden dismissal by a group of ‘hawks’ who will now nominate the new head of the Council. The coup in the NCJ may be a prelude to Zbigniew Ziobro’s final crackdown on independent judges.

Judge Leszek Mazur resigned on Thursday 21 January 2021. This comes as a surprise, because everyone had hoped that the stalemate in the new National Council of the Judiciary would be resolved by the president of the Supreme Court, Małgorzata Manowska.

This is because, according to the Act on the NCJ, she was the one who was supposed to make the decisions after the coup in the Council. And it transpired from earlier information that President Manowska had grounds not to recognise Mazur’s dismissal, because it arises from the Supreme Court’s legal opinion that it was unlawful. Leszek Mazur saved her the trouble by tendering his resignation.

‘Nobody pressured me. I didn’t want to paralyse the work of the NCJ for many months’, the former chairman of the new NCJ, Leszek Mazur, tells OKO.press.

His successor is to be elected at a meeting of the new NCJ, which the president of the Supreme Court has called for 29 January. According to OKO.press, Judge Joanna Kołodziej-Michałowicz is to take over Mazur’s position.

 

How Mazur and Mitera were dismissed

Judge Leszek Mazur’s resignation from the post of chairman of the new NCJ is a result of a coup in the Council, which took place on 14 January 2021.

Just to reiterate. Council member, Judge Marek Jaskulski, suddenly filed a motion to dismiss Mazur from the position of chairman. And, after a discussion in camera, the Council quickly voted on this motion. Mazur was dismissed by an overwhelming majority.

Together with him, the Council dismissed Judge Maciej Mitera from the presidium of the NCJ and from the position of its press officer. The deputy chairman of the Council, MP Arkadiusz Mularczyk from the Law and Justice party (PiS), pushed for their swift dismissal. It was he who chaired the deliberations.

The official reason is the loss of confidence. But the real reason is the conflict that has been smouldering for months in the Council, which is divided into clashing factions of so-called ‘doves’ and ‘hawks’.

The conflict could come as a surprise to many, as the judges were unconstitutionally elected to the new NCJ by PiS and Kukiz’15 MPs in the Sejm’s previous term of office. The old, legal NCJ was dissolved in breach of the Constitution.

The judges elected to the new NCJ were mainly judges who decided to cooperate with Zbigniew Ziobro’s ministry. We wrote about this in OKO.press.

Read also:

Twelve of the 15 members of the neo-NCJ are connected with minister Ziobro. We disclose the facts

3 DECEMBER 2019                         

PiS needs the new NCJ to influence promotions in the courts. And these are now often given to ‘their own’ judges. This, step by step, gives PiS control over the judiciary. This is because the new NCJ is not independent, as the rulings of the CJEU and the old, legal Supreme Court have already confirmed. We wrote about this in OKO.press.

Read also:

The Supreme Court adamantly: ‘The NCJ is not independent and the Disciplinary Chamber of the Supreme Court is not a court’

5 December 2019

 

Doves and hawks in the Council

Despite such a membership, a split has arisen in the new NCJ. The ‘doves’ faction consists of judges who want the Council to make decisions on judicial promotions more objectively and substantively, and not to give promotions to Council members. They are closer to legalists.

This faction includes Judges Leszek Mazur, Maciej Mitera, Wiesław Johan (former judge of the Constitutional Tribunal, is a member of the Council nominated by the president), Ewa Łąpińska, and Paweł Styrna.

The group of ‘hawks’ are judge-members of the NCJ associated with the former deputy minister of justice, Łukasz Piebiak, who had to leave the ministry in 2019 after the outbreak of the hate scandal.

This group is in favour of the radical path in the courts being forced by Minister Zbigniew Ziobro. It includes Dariusz Drajewicz, Rafał Puchalski, Jarosław Dudzicz, Zbigniew Łupina, Grzegorz Furmankiewicz, Jędrzej Kondek (he is in the management of the Justice Institute, where Łukasz Piebiak found employment), Joanna Kołodziej-Michałowicz, Marek Jaskulski and Maciej Nawacki.

Most of the judges in this group are benefiting from the ‘good change’. They are presidents of courts appointed by Ziobro’s ministry or were promoted to a higher court by the new NCJ, of which they are members. We wrote about this in OKO.press.

Read also:

The new NCJ’s last-minute promotions. For judges who decided to cooperate with Ziobro’s ministry

18 June 2020

There is also Judge Dagmara Pawełczyk-Woicka, who takes her own path in the Council. But she criticised Leszek Mazur before his dismissal.

 

How the ‘hawks’ made money in the Council

The two factions have been clashing in recent months. But the bitterness of the ‘hawks’ was aggravated by the revelation that some members of the Council – from the ‘hawks’ group – had found a way of making extra money. They took advantage of the epidemic and started calling online meetings of various committees.

The meetings were called on days when the NCJ did not have plenary sessions, so they received extra per diems. This cost the NCJ an additional approx. PLN 160,000. This is how the judges earned an additional PLN 10–20 k each.

For example, Maciej Nawacki earned an additional PLN 22,000, and Dariusz Drajewicz earned an additional PLN 23,000. The media wrote about this matter.

The initiators of Mazur’s and Mitera’s dismissals did not like the fact that they had lawfully made the minutes of the meetings of these committees available to journalists and that they had appeared in TVN24 and made statements on this. We wrote about this in OKO.press:

Read also:

Coup in the new NCJ. Ziobro’s ‘hawks’ dismissed the chairman of the Council and its press officer

14 JANUARY 2021

 

Mazur leaves after consultations with Manowska

However, a problem quickly arose as to whether Mitera’s and Mazur’s dismissal was legal. Because the Act on the NCJ does not provide for the dismissal of the chairman and a member of the Presidium of the NCJ. The dispute was to be resolved by the president of the Supreme Court, Małgorzata Manowska (appointed by President Andrzej Duda).

It is she who, according to the Act on the NCJ, calls the first meeting of the Council after a vacancy arises in the post of chairperson and chairs it until a new head of the Council is elected.

Several days ago, the new press officer of the Supreme Court, Aleksander Stępkowski, revealed that the president of the Supreme Court had a legal opinion from which it transpired that Mitera’s and Mazur’s dismissal was unlawful. This did not prejudge what Manowska would do, as she could disregard the opinion. However, if she did not recognise the coup in the Council, its work would still be managed by the chairman to date.

But Leszek Mazur saved the president of the Supreme Court from clashing with the ‘hawk’ faction in the Supreme Court, which could have ended in a war in the Council. And that might not have pleased PiS.

Mazur himself resigned as chairman of the NCJ on Thursday, 21 January, even though he previously believed his dismissal was illegal. In an interview with OKO.press, he made the assurance that no-one had pressured him. However, ‘Gazeta Wyborcza’ wrote that PiS MPs knew about his resignation earlier.

‘Having thought about this, I decided that, after the vote of no confidence in me by the members of the Council, my continued chairmanship of the NCJ could paralyse its work. I have also lost my confidence in Deputy Chairman Arkadiusz Mularczyk and I do not see any possibility of working with him any longer,’ Judge Mazur assures OKO.press.

He admits that he consulted the president of the Supreme Court, Małgorzata Manowska, before making the decision. ‘She unambiguously assessed this legally. But she left the burden of the decision to me,’ Mazur says.

He adds that, had he had remained in his post, Julia Przyłębska’s Constitutional Tribunal would have had to settle a competence dispute over who should continue to manage the council. However, Mazur will not resign from being its member.

 

The ‘hawks’ will take control in the new NCJ

According to OKO.press, the vacant post of the chairman is to be taken over by a person associated with the ‘hawks’ faction. Marek Jaskulski, who submitted the motion to dismiss Mazur, and Jędrzej Kondek received proposals. But they allegedly refused.

According to our information, the surest candidate now is Joanna Kolodziej-Michalowicz. ‘Nobody wants to be a front man. She is calm. But she has her ambitions,’ a person familiar with the work of the NCJ behind the scenes tells OKO.press.

Joanna Kołodziej-Michałowicz is a judge of the District Court in Słupsk. Meanwhile, her husband Andrzej Michałowicz, appointed by Ziobro, is president of the Regional Court in Słupsk.

Onet wrote that she is applying for promotion to the regional court. A visiting inspector evaluating her work wrote that she had been late with her justifications of judgments. His assessment for promotion, as Onet wrote, was negative.

The replacement of the head of the Council will give the ‘hawks’ control over it. The judges included in it were weakened after Łukasz Piebiak resigned as deputy minister. And many judges of the good change owe Piebiak a great deal. He was the human resources officer in the courts. Many were given positions, many were promoted.

However, the group of ‘hawks’ strengthened when, in October 2020, a politician, namely PiS MP Arkadiusz Mularczyk, was elected deputy chairman of the Council for the first time in its history. It was he who was pushing for Leszek Mazur’s swift dismissal.

‘He gave them a sense of leadership. Because after Piebiak resigned, they were left alone. Why did they elect him as deputy chairman? Perhaps they are counting on him choosing them for a second term of office in the Council,’ a person familiar with the work of the new NCJ behind the scenes tells OKO.press.

 

Are the changes in the NCJ a prelude to the final showdown with the courts?

The change of leadership and the new balance of power in the new NCJ may also be a preparation for Zbigniew Ziobro’s final attack on the independent courts.

His ministry plans to abolish all the ordinary courts (district, regional and appellate) and set up two new levels. This will enable all 10,000 or so judges in Poland to be vetted. Because judges will have to be reappointed to the courts. The plans are supported by PiS chairman, Jarosław Kaczyński. We wrote about this in OKO.press.

Read also:

Kaczyński directly announced a purge among judges for the first time

22 DECEMBER 2020

And the neo-NCJ would have to give its opinion – as is speculated – as to who will stay in the profession, and to which court, in which town he would go. It is also supposed to give its opinion on decisions to send judges on early retirement.

So it will be better for PiS if it has a say in the management of the new NCJ, so that the vetting of judges progresses quickly and without any unnecessary problems.

For many judges who are independent today and who defend the free courts, this could mean forcible removal from the profession.

We published a list of rebellious judges being prosecuted in OKO.press:

Read also:

List of prosecuted and repressed judges. Ziobro’s disciplinary commissioners (Schab, Radzik and Lasota) in action

28 June 2020