For several months, the Lublin Court of Appeal has been headed by judges who were not granted permission by the National Council of the Judiciary (NCJ) to continue serving after reaching the mandatory retirement age of 65. Justice Minister Waldemar Żurek accepted that situation. Recently, however, the composition of the NCJ changed – and that appears to have been exactly what they were waiting for. Judges Jerzy Nawrocki and Barbara du Château have now submitted new letters to the Council requesting that their cases be examined again. Does this mean they no longer recognize the previous decisions? “That is essentially what it comes down to,” admitted Judge Jarosław Łuczaj, the current spokesperson for the National Council of the Judiciary.
Niezalezna previously reported on the unusual situation at the Lublin Court of Appeal. Its President, Jerzy Nawrocki, and Vice President, Barbara du Château, have both turned 65. Under Polish law, judges reaching that age retire unless the National Council of the Judiciary grants them permission to remain in office.
Nawrocki and du Château applied for such permission, but the NCJ rejected their requests. They appealed to the Supreme Court of Poland, which also dismissed their appeals. Despite those decisions, they never retired and continued performing both judicial and administrative duties at the court. The question remained – how was that possible?
Ministry steps in
Following Niezalezna‘s publications, the Ministry of Justice, headed by Waldemar Żurek, responded.
“The Ministry of Justice informs that Judges Jerzy Nawrocki and Barbara du Château remain in their positions as President and Vice President of the Lublin Court of Appeal. Six months before reaching the age of 65, both judges submitted declarations to the National Council of the Judiciary expressing their intention to continue serving as judges. They attached the required medical documentation confirming that they were fit to continue performing their duties.”
The ministry also confirmed that, after the NCJ issued its negative resolution, both judges appealed to the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, but their appeals were dismissed.
At the same time, however, the ministry argued:
“Due to the lack of a properly constituted National Council of the Judiciary, the proceedings concerning the continued service of the President and Vice President of the Lublin Court of Appeal after reaching retirement age have not been concluded. Consequently, Judges Jerzy Nawrocki and Barbara du Château remain in their positions. Furthermore, the Lublin-West District Court in Lublin, 7th Labour and Social Security Division, granted interim protection of their claim seeking recognition of their active judicial service relationship.”
It is worth recalling that Nawrocki and du Château themselves voluntarily applied to the NCJ and later appealed to the Supreme Court. Only after receiving unfavorable decisions did the Ministry of Justice step in, arguing that those decisions were allegedly invalid.
“The matter will sort itself out”
When Niezalezna investigated the situation at the Lublin court in March, it also spoke with Judge Magdalena Kuczyńska, the Court of Appeal’s spokesperson.
She said at the time: “Decisions made by the National Council of the Judiciary are sometimes challenged because of the legal status of that body.”
She added: “The Council’s term of office ends soon, in May. Perhaps the matter will then sort itself out and become clear.”
New submissions
It has now emerged that the case has indeed continued following the changes to the National Council of the Judiciary. As established by Niezalezna, two days ago the NCJ received new submissions from Judges Nawrocki and du Château.
“They requested that the Council take a position regarding their original applications, referring to the interim order issued by the labour court and arguing that the previous composition of the National Council of the Judiciary did not meet constitutional requirements, while the Chamber of Extraordinary Review is not a court,”said Judge Jarosław Łuczaj, a member of the NCJ. “The National Council of the Judiciary will now consider this issue.”
Judge Łuczaj stressed that the matter will first be examined by the appropriate committee, which will present its recommendation during a plenary session – possibly as early as July. Nevertheless, the outcome appears easy to predict: the NCJ is expected to approve Nawrocki and du Château’s continued service.
How will the Council deal with its previous resolution and the Supreme Court’s judgment? Niezalezna also asked that question.
Judge Łuczaj replied that the judges’ latest submission was not formally a request to reopen the proceedings, but rather a request for the Council to take a position regarding their current legal situation.
“How the authors describe their submission is of secondary importance compared to what it actually concerns, what they are seeking, and the current legal situation,” the NCJ spokesperson said. “They are asking the Council to take a position regarding the applications they originally submitted.”
Does that mean they no longer recognize the earlier decisions?
“That is essentially what it comes down to. Their submissions indeed argue that the previous composition of the National Council of the Judiciary was unconstitutional and that the Chamber of Extraordinary Review is not a court within the meaning of the law, particularly European law,” he said.
To make sure, Niezalezna asked once more whether Nawrocki and du Château wanted their applications to be examined as if for the first time by what they consider “lawful” institutions.
“Yes, that would be a fair simplification,” Judge Łuczaj acknowledged.