Michał Wawrykiewicz
Attorney, practicing law since 2003, specialist in civil law, public law, constitutional law and European law Free Courts
The Bar was established to provide legal assistance but also to help in the protection of civil rights and freedoms and in shaping and applying the law. Our duties, shaping and applying the law, are often forgotten and overlooked. As one of the initiators of Free Courts, I have taken this to heart.
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It was always my dream to become a lawyer, from the sixth grade of primary school. Probably because my grandfather was an attorney and even though he died before I was born, he was very much a part of my family history and had a great impact on me. He practised law in very difficult times for the bar, in the 1950s and 1960s at a time when all manner of condemnation, surveillance by the communist party, and suppression of independence was taking place. He advised his son against becoming a lawyer so my dad went to polytechnic. I think I am exactly like my grandfather in terms of my interests and probably as a person. I love the mountains, I am curious about the world and I like people. In 1989 I took part in my first elections, right after that I went to law school and I wanted to become an expert in civil law. I dreamt of being a lawyer who would advise businesses and provide legal services to big companies in the new big world of emerging capitalism. That fascinated me and I was good at it: commercial law, real estate, civil litigation. I did that for many years, up until 2016.
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In 2015, we all watched the evening and night sittings of the Polish Lower House of Parliament (the Sejm) when the independence of the Constitutional Tribunal was brutally attacked in an extremely primitive way. It was then that all the red flags went up for me. I knew where this was heading. I attended the first Committee for the Defence of Demo-cracy demonstrations in front of the Tribunal. I had to oppose what was going on. I was involved in helping opposition MPs as a legal expert until July 2017. A package of three bills appeared in the Sejm: on the National Council of the Judiciary, the Supreme Court and the common courts system. They turned the entire independence of the judiciary upside down. Both the courts and judges ceased to be independent. Few people now remember that the ruling party actually tried to throw out every single member of the Supreme Court by law.
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Even before 2015 I realised that our justice system was not perfect. As a trial lawyer, I knew that a lot needed to be changed, improved, streamlined and modernised in order to bring the courts closer to citizens, to make it easier for them to be accessed, and to make judges more comfortable and more efficient. On the other hand, when I was working on international cases, I noticed that in the courts of other countries, in Italy for example, cases took much longer. I therefore had the feeling that we were, shall we say, in the middle of the European pack. Today, however, it may turn out that EU funds to Poland will be cut off because of violations to the rule of law. Today Poland is ignoring the judgments of the European courts, the judgments of the Court of Justice of the European Union. When the time is right and we are ready to restore the rule of law, to rebuild everything that has been ruined, the judgments of the Court of Justice of the European Union will serve as a road map of how we will be able to repair the rule of law. What is also important is that it will show us who was responsible for this attack on our constitutional and European foundations in Poland.
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The most important matter in my life was a rather heroic attempt to defend the seemingly impossible, namely the status of the judges of the Supreme Administrative Court and the Supreme Court who had been dismissed. This case was extremely long and ended with a ruling before the Court of Justice of the EU. What is more, it has entered the canon of European jurisprudence as a new standard which defines the rules for assessing judicial independence. The case began in July 2018 when judges of the Polish Supreme Court and Supreme Administrative Court over the age of 65 (who wished to continue doing their work in peace) were unconstitutionally forced to retire. This battle seemed hopeless at the time because new laws – the Act on the National Council of the Judiciary and the Act on the Supreme Court – effectively eliminated the possibility of protecting their status as judges. All the cases were expected to go to the (unconstitutional) Disciplinary Chamber, which did not yet exist but would function as a kind of political kangaroo court. This is why we took our cases to the Labour Chamber of the Supreme Court, which triggered the mechanism of preliminary questions being put to the European Court of Justice. After more than a year battling before the Court of Justice of the European Union, the cases ended with a favourable judgment (annotated “AK”, all the more apt as these were the initials of Poland’s freedom-fighting Home Army during WWII). This put an end, from the point of view of European legal standards, to the formation and operation of both the new politi-cally-motivated National Council of the Judiciary and the Disciplinary Chamber. It meant a complete lack of approval for these two bodies and the confirmation that they did not fit into the European legal order. However, the ruling party in Poland has never accepted and continues not to implement this judgment of the Court of Justice of the European Union.
