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Dorota Wysocka-Schnepf: I’m tempted to quote a line from the Polish cult comedy „Miś": we don’t have your coat, and what are you going to do about it? Is that what you essentially heard from your superior, Mr Nawacki, when you showed up at work the other day?

Judge Paweł Juszczyszyn: Yes, exactly. As a matter of fact, that movie quote comes to mind quite often when I look at what the current government is doing since 2015.

Judge Juszczyszyn wants to return to the bench

And how exactly did this look like, you came in and saw what – closed doors, locks replaced, access codes reset? Did anyone talk to you, give you any information?

- Not really. The situation is this: since February 4, 2020, so for over a year now, I could enter the courthouse during its opening hours, just like any other citizen. Because I still have a magnetic card that allows me to go through the doors that are closed to regular visitors, I could access my office. All the other areas of the court, however, are now off-limits to me.

I was cut off from the entire computer system as well, the court’s database, but also its employee administration and management system. This is especially problematic during the pandemic because all the ordinary organizational issues like scheduling vacations and information about whether the trials are taking place remotely or not are all communicated through this system.

And I was notoriously showing up at work, at least once a week. Earlier, I also submitted letters to have official material evidence confirming my readiness to adjudicate.

But the situation has changed now. My demands to be reinstated have recently gained additional support beyond my own arguments, the jurisprudence of international tribunals, the Polish Supreme Court, or the courts of appeal in Warsaw and Krakow. Two extremely important rulings have already been made in my individual cases. The first one was issued by the Regional Court in Bydgoszcz on April 14, 2021, and the second one was issued more recently, on May 10, by the District Court in Olsztyn.

The impression I get when listening to all this is that your situation goes far beyond just an absurd comedy film. What you’re dealing with is much more serious. It’s lawlessness, plain and simple, isn’t it?  

- Yes. Some people describe the situation we’re currently dealing with in Poland as "legal dualism". I object to that term. No, if there is some kind of dualism here, then we should call it as it is: what we are dealing with is simply law and lawlessness.

Court rules to reinstate judge Juszczyszyn but his superior refuses to accept the decision

Two weeks ago, the Olsztyn District Court suspended the effectiveness and enforceability of the resolution issued by the so-called Disciplinary Chamber of the Supreme Court, which suspended you from exercising your professional duties. Your superior, Mr Nawacki refuses to comply with the court ruling. Is he breaking the law?  

- Mr Nawacki acts like a man who refuses to acknowledge his fault even when caught red-handed. After the ruling of the Regional Court in Bydgoszcz - which directly obliged the District Court in Olsztyn, over which Mr Nawacki presides and is therefore directly obliged to allow me to return to the bench - he claimed that he could not do so because he was implementing a resolution of the Disciplinary Chamber. Now that the District Court in Olsztyn has suspended the enforcement of this resolution, he claims that he was not a party to these proceedings.

And in my opinion, which my attorney Prof. Michał Romanowski happens to share, Mr Nawacki is wrong here. I would like to point out that the State Treasury was and is a party to the proceedings before the District Court in Olsztyn. There’s only one State Treasury. President Nawacki or the District Court in Olsztyn do not take an independent position as participants in court proceedings. In short, Mr Nawacki is a representative, one of many, but he is in fact a representative of the State Treasury. Therefore, the decision of the District Court in Olsztyn affects him directly. And in my opinion, as of today, Mr Nawacki has no right to claim that by not allowing me to adjudicate he is implementing a resolution of the Disciplinary Chamber because this is exactly what has been suspended.

Judge Juszczyszyn will send a letter of summons to the head of the Supreme Court

You have also announced that your attorney will send a letter of summons to the First President of the Supreme Court Małgorzata Manowska with a request to execute this order on pain of initiating an enforcement proceeding against her personally. Has this request already been made? What kind of reaction do you expect? And what if President Manowska acts like President Nawacki, that is, basically ignores you?

- The decision of the District Court in Olsztyn consisted of two elements. Firstly, the Court suspended the enforceability and effectiveness of the resolution of the Disciplinary Chamber of the Supreme Court which suspended me from exercising my duties. This legitimates a certain legal status. Normally, the decision itself should be enough to settle everything. On the other hand, the Court obliged the State Treasury to enforce its ruling, indicating as statio fisci, i.e. as an organizational unit to act on its behalf, the Supreme Court.

The Supreme Court is currently headed by Ms Małgorzata Manowska, who performs the duties of the first president, but is doing so illegally in my opinion. Nevertheless, it is indeed Małgorzata Manowska who is now heading the Supreme Court. Crucially, in relation to that, the decision of the District Court in Olsztyn, which ordered that the resolution on the basis of which I was suspended be marked with a note that its effectiveness and enforceability is suspended, this decision should be executed and it is subject to execution. Considering that the ruling is not about, for example, enforcing a specific sum of money to be paid, but that it is rather about the enforcement of the so-called irreplaceable actions, in the absence of voluntary enforcement of the decision of the District Court in Olsztyn, we will take further legal steps.

However, I need to emphasize that we will take these steps only if Ms Małgorzata Manowska does not voluntarily comply with the decision of the District Court and refuses to enforce it. Then, together with my attorney Prof. Romanowski, we will certainly use all available legal means to force Ms Manowska to comply with the legal obligation imposed on her by the decision of the District Court in Olsztyn.

CJEU suspends the Disciplinary Chamber of the Supreme Court

On top of what we’ve just discussed, it is important to remember that the Disciplinary Chamber is technically not a court. Its activities have been suspended by the CJEU. Doesn’t that mean anything?

- Well, yes, we’ve come full circle to where we started. It seems as if government authorities on all levels follow the same principle: "we do not have your coat, and what are you going to do about it?". At the same time, they try to keep up the appearance of acting legally and sometimes even push through their own legislation. This became possible primarily because of the destruction of the Constitutional Tribunal. Therefore, the system we currently have in Poland can hardly be called a democracy. It is a system where, in violation of the Constitution, the minority can impose its will upon the majority. That is precisely the logic of an authoritarian state.

Well, I think that eventually, sooner or later, all of these unlawful actions and all of the people who violate the rule of law, who fail to fulfill their public duties, who abuse their powers, will be brought to justice.

We, as a society, should also demand this from the democratic forces that will govern the country in the future. Because governments come and go, but remaining true to the rule of law, defending justice, and being a decent person are all values that will stand the test of time. They are our common good.

The case of judge Juszczyszyn

You have sent a request for reinstatement to multiple courts in Poland, to put it briefly. Do you expect a deluge of similar decisions to those already issued by the court in Olsztyn and earlier in Bydgoszcz?

- At the moment, I am completely satisfied with the two rulings that have already been made in this case. Here, I must express my utmost respect for the judges of the Regional Court in Bydgoszcz and the District Court in Olsztyn. Nowadays, and we must all be aware of this, making such a decision is an act of great courage. These judges expose themselves to repression, and such actions have already been taken against the judges in Bydgoszcz. The deputy disciplinary prosecutor demanded the case files with the interim measure allowing me to return to the bench.

Now we learn that the internal affairs division of the National Prosecutor's Office has also already requested these files, citing legal grounds that allow the prosecution to bring charges. We also know that despite the suspension of the Disciplinary Chamber by the CJEU, the Disciplinary Chamber continues to hear immunity cases.

So, we can already see that a kind of process line has been established here: on the one hand, even the slightest critical statement in defense of the rule of law is met with disciplinary proceedings. At the same time, and this is particularly frightening, the prosecution initiates criminal proceedings against defiant judges who refuse to toe the party line. Moreover, it is also using the illegal and politicized Disciplinary Chamber to strip judges of their immunity and remove them from the bench. This is exactly what has happened in the case of Judge Igor Tuleya and Judge Beata Morawiec, the president of the Themis Judges Association.

The European Court of Human Rights will hear the case of Judge Juszczyszyn

The European Court of Human Rights has announced that it will consider your case. What do you expect, and aren't you afraid that if the ruling is in your favor, the authorities will treat it the same way as they have treated previous rulings by international tribunals, such as the recent CJEU ruling in the case of the coal mine in Turów?

- The European Court of Human Rights is certainly an independent and impartial institution. In my complaint, I first of all claim that I was denied my right to a fair trial- to an impartial, independent, and legally staffed court. The Disciplinary Chamber does not meet these requirements. This starts with the fact that it has been illegally staffed by people who are judges in name only, but in fact are impostors who do not have the status of a judge under the law. They did not acquire it, because the decision of the Polish President-who in a democratic state is also bound by the law and should act on the basis of the rule of law- does not cure the flagrant violations in the entire process of appointing judges.

I will, of course, respectfully accept any judgment of the European Court of Human Rights. However, judging by the decisions issued in the so-called Icelandic case and the ruling handed down in the case of Xero Flor v. Poland, we can already tell that the European Court of Human Rights is already developing a line of jurisprudence to the effect that if there are violations in the procedure for appointing judges if these violations are serious and result in a breach of the fundamental principles that should characterize an independent, impartial judiciary, then in this situation we are not dealing with a court at all, and the citizen is deprived of the right to a fair and impartial court.

And the right to a fair and impartial court is both a human right and a basic guarantee for all of us that our civil rights will be respected. Because otherwise, if we don't have independent, impartial, and lawfully appointed courts, then human rights, civil rights, will be little more than just empty words on a piece of paper.

***

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