What are the judges in Poland afraid of? We talk to Judge Waldemar Żurek of Kraków, press officer for the legal ‘old’ National Council of the Judiciary, one of the main critics of the changes in courts in Poland after 2015. A total of 12 disciplinary and investigative proceedings have been initiated against judge Żurek in retaliation for his activity.

Judge Żurek recently refused to adjudicate with people who were appointed or promoted with the involvement of the new NCJ, citing the ruling of the Court of Justice of the European Union of 15 July. The same position was taken by the legal judges of the Supreme Court.

We discuss possible changes and their consequences for the independence of the judiciary in Poland. The interview was recorded before Rzeczpospolita daily wrote about government plans for further court “reform”.

[THREAD] A new purge in Poland's Supreme Court. @Rzeczpospolita has learned the details of the new proposal ⬇️ https://t.co/Q7pOF4njuf

— Rule of Law in Poland (@RULEOFLAWpl) November 2, 2021

Anna Wójcik: What direction might the government’s actions with respect to judges in Poland take?

Judge Waldemar Żurek: This government judges everyone by its own standards. That’s why it will try to use a carrot-and-stick approach. The stick for those judges who fight for the rule of law. And the carrot for those it wants to try to persuade over to it.

In my opinion, they will try to pull over to their side and bribe at least some of the younger judges, the district court judges. They will tell them: ‘you poor, hard-working, unappreciated people, look, those above you have it a little better, so you will now receive titles and a little more money’.

If the authorities change the structure of the courts, as they have announced, the youngest judges will still be in the lowest instance.

But the authorities are counting on some judges falling for this bait. Because they think according to their own standards that people can either be bought or intimidated. In my opinion, those in power will come a cropper with this.

What might these changes look like?

The judges can already feel in their bones what the ‘good’ change in the judiciary is to look like later on. It will involve the destruction of the independent courts from below up – namely the Supreme Court and the courts of the lower instances. The authoritarian government will try to send some judges into retirement. The Supreme Court will probably become a ‘Constitutional Tribunal mark II’, which will be a small, shell court made up exclusively of neo-judges, a political instrument.

There are 52 legal judges in the Supreme Court, appointed with the involvement of the last legal NCJ. After the judgments of the CJEU in 2019, it is obvious that a reduction in the retirement age for judges of the Supreme Court and the ordinary courts is in conflict with EU law.

There is a provision in Article 180 of the Constitution, which reads: ‘Judges are irremovable.  (…) In the event of a change in the structure of the courts or within the boundaries of judicial regions, a judge may be transferred to another court or retired on a full salary. The authorities will say that the reorganization must be extensive, including the Supreme Court, and will retire some judges.

Kaczyński could calculate that the battles with the European Commission and the consideration of possible complaints in the CJEU will last another few years. That will be enough for him. There will be parliamentary elections in 2023 or earlier.

Perhaps the people in the Disciplinary Chamber may also be ‘victims’ of the reorganization of the Supreme Court, but they will probably be granted full retirement status, which means that they will receive huge amounts of money from the state budget until their death, several tens of thousands of zlotys a month. Because of their active participation in the destruction of the rule of law. This is an attractive offer. They will have peace and quiet, they will not be the centre of attention, they will not have to look people in the eye at pseudo-trials. Two years and a few political convictions later, they will be pampered.

The provincial courts will be staffed with ‘their people’, and there are already quite a few of these in the system. These courts will probably have extensive cognisance and area of jurisdiction. So that judges who are subordinate to them can be moved around, even several hundred kilometres at a time, between courts based at the extremes. This is what happened to prosecutors who criticized the authorities.

Today we are seeing judges with several dozen years of experience, who specialize in one branch of law being transferred to another. One example is Judge Czajka, who was transferred from the criminal division to a civil division in the first instance after twenty years of service.

How else can judges’ lives be made miserable?

Jarosław Kaczyński announced in an interview that judges who have serious disciplinary problems will not be a part of the new system.  And who today has serious disciplinary problems? The vast majority are judges who criticize the anti-constitutional changes to the judiciary that were forced through after 2015 and are actively fighting for a democratic state.

Judges Beata Morawiec, Igor Tuleya, Krystian Markiewicz, Bartłomiej Starosta, Monika Frąckowiak, Dariusz Mazur, Piotr Gąciarek, Maciej Czajka, Olimpia Barańska-Małuszek, Paweł Juszczyszyn, Adam Synakiewicz, Maciej Ferek and I, myself. There must be at least a hundred such people in Poland who are known for their open criticism of the pseudo-reform.

Perhaps they will be retired first, but later the authorities may withdraw their retirement status as a result of disciplinary proceedings. I do not believe that the authorities will leave us alone. And they will pacify the remaining judges, either with promotions and pay rises, or by inciting a chilling effect.

Harassment, such as transferring judges to other divisions, is very mentally taxing. It is like suddenly telling an ophthalmologist that he is conducting open-heart surgery from now on. Another way is to charge unruly judges with disciplinary or criminal cases, to trawl through them, take up as much of their time and nerves as possible to catch them out on some mistake.

This is why, for example, the institution of the extraordinary complaint is used. This time, Prosecutor Marek Pasionek, who was seconded to investigate the Smolensk catastrophe, sent me my charges for the second time on 72 pages, although this could easily have fitted onto 30. Once, someone had to apologize to me for lying in the media after a final judgment in a case for a breach of personal rights. But Minister ZZ created a legal monster, the extraordinary complaint, to be used by neo-judges and politically elected jurors to reverse final court judgments. The law is no longer of any relevance. What matters is the political will of the prosecutor general. This is how every final judgment in Poland can be thrown into the bin. And everyone can be destroyed.

Where there are no independent courts, the institution of extraordinary complaints will become very dangerous for the citizens. Especially for opposition activists and politicians. It will allow for the reconsideration of every decision made now by an independent court and in recent years.

The President of the European Commission told Prime Minister Mateusz Morawiecki that she expects, among other things, the suspended judges to be reinstated. At the current stage of the conflict between the Polish government and EU institutions over the rule of law in Poland, removing judges who criticize changes in the judiciary from the profession will only add fuel to the fire.

I see these words of the President of the European Commission as being very positive, including the demand to restore guarantees of the independence of the whole of the judicial system. This is a very important statement, which represents a huge qualitative change after several years of ‘oh, it’ll be fine somehow, we’ll come to an agreement’.

It is important that the European Commission is not only talking about the need to liquidate the Disciplinary Chamber.

It is important that politicians in Poland, as well as other EU countries and in Brussels know that the heart of the problem is the poisonous tree: the neo-National Council of the Judiciary. It is important that they put pressure on the Polish authorities to respect our Constitution and the judgments of our EU courts.

Without changes in the NCJ, the authorities will appoint a new body to try judges on disciplinary charges, which will only be named differently. Or it will distribute disciplinary cases among the various chambers of the cut down Supreme Court. And nothing will change.

As early as in 2017, the objective of the ‘judicial acts’ was to replace the staff in the judiciary. Do you believe this replacement will take place now?

The authorities are trying to convince the judges to persuade them over to the authorities or to scare them. I, myself, received proposals in the past to take over the management of one court or another. The resistance and independence of the judges surprised the authorities. I am convinced that the group of judges criticizing the pseudo-reform most openly will not surrender.

The group of judges who went for nominations and promotions represent 10% of the judges. But that group includes many who deserved promotion. But there are also several hundred who would never have reached any position in a fair recruitment, simply because they were substantively weak and sometimes had disciplinary cases to their credit. This group will defend the system that was established in recent years most strongly.

The authorities have seen that striking at the judges in points is insufficient. So it is planning to run over the judges with a steamroller under the pretext of restructuring the judiciary. But this steamroller will seize up.

Firstly, the European Commission is reacting today more forcefully than it has done in recent years. Although of course the Polish government is already supposedly threatening to take loans from China. The authorities in Poland are determined to subordinate the courts to themselves, as they have done with the prosecutor’s office, so that they are not held accountable for the scandals and crimes.

The reorganization of the courts will mean that a number of judges will be taken away from substantive work in the courts, which means that the time taken to deal with citizens’ cases will be even longer. But those in power are not interested in the situation that things are bad and will get worse. All that matters is what stories they are able to tell the voters. And how not to allow an independent court to judge their evil deeds.

And what happens if such an independent judge does not accept retirement. After all, the authorities will not allow him to continue to rule.

We do not know how the new laws will be structured. Certainly judges will complain to the European Court of Human Rights and ask questions of the Court of Justice of the European Union. The ECtHR will soon rule on one of my cases. Another case is coming up. The Court accelerated the examination of complaints about the rule of law in Poland.

Additionally, judges have a certain system of self-help, support for each other. There is solidarity in the community.

Even so, I think the authorities will take a tumble on this further pseudo-reform. A large group of judges have already become toughened up. They won’t allow themselves to be turned into political menials. But we obviously won’t win this war on our own. I myself am prepared to lose my job, my property, perhaps my family. There are many such people.

We shall not fall into a black hole. The suspended judges, Paweł Juszczyszyn and Igor Tuleya, are not giving up; they are travelling around Poland, meeting with people, educating them. The method used against me is to ‘finish him off with work and catch him making a mistake’.

If you put a hundred judges out of work, they won’t be left without a livelihood. However, they will then go out into the field. This group of people is far more motivated than others. Because we take our judicial oath very seriously. This really is a priority for us. I believe in these people, I see them toughening up every day. In addition, there are still other judges who publicly support us, who are demanding an end to the repression against us.

What would you say to people, especially young people, who are wondering if they should somehow become accommodated in this new system.

It is inevitable that there will be those in this professional group who want to move upwards. I know people who have taken part in recruitments in a procedure involving the neo-NCJ. The judicial community reminds them that even if they are recruited, it is not because they are the best or good. It is only because they are frequently the only candidates.

Other than that, there are already so many rulings of the CJEU, the ECtHR and the Supreme Court, which clearly state that people who were appointed or promoted in a procedure involving the neo-NCJ cannot be an independent court in the meaning of European law or of our Constitution.

Are you expecting anything from the EU institutions, and if so, what?

In my opinion, the European Commission should not approve transfers of EU funds to Poland until the CJEU issues its judgment on the complaints filed by Poland and Hungary about the so-called conditionality mechanism, or, in other words, ‘money for the rule of law’. Because these transfers are a drip that strengthens the regime that is being built up.

The Polish government claims this mechanism should only apply to the correctness of spending EU funds and not the independence of the judiciary.

The EU institutions should remember, however, that it is the national courts that decide whether EU funds have been spent correctly. It is a Polish court that decides whether there has been embezzlement or a crime in spending EU funds. If Poland does not have independent courts, for which structural guarantees of independence are needed, there will be no verification as to whether EU funds are being spent legally.

The Commission should state directly what it expects and should set hard and fast conditions.

Let’s assume there is a chance of systemically repairing the judiciary in Poland after the changes being pushed through in recent years. What will then happen to the people who were appointed or promoted with the involvement of the new NCJ?

The judges of the court of the highest instance, the Supreme Administrative Court and the Supreme Court will stop performing their functions.

The people in the ordinary courts should be on permanent secondments until their status is resolved. They should be treated as assessors in the first instance in district courts. This can be done by statute. These people can again apply in recruitments before a newly appointed, legal NCJ. The judges who are members of this NCJ must be elected by the judges, in the numbers clearly specified by the Constitution. Not by politicians. They have their own pool.

As soon as we have a rebuilt NCJ and a rebuilt Supreme Court, it will be possible to demand the restoration of the legal judges of the Constitutional Tribunal – the three legally elected in 2015, who were not appointed by President Andrzej Duda. An Act reforming the Constitutional Tribunal will need to be passed. Consideration needs to be given to the status of the members of the Tribunal who took up their posts when the three legitimate judges of the Constitutional Tribunal could not take the oath. I would argue that perhaps they should also be so-called ‘stand-ins’.

However, if there is a legal Supreme Court, consisting only of legal judges and those chosen by a legal NCJ, it will deal with this quasi-Constitutional Tribunal.

The legal membership of the Supreme Court can also pass a resolution stating that, for the sake of security of legal transactions, the certainty of the law, the judgments of the neo-judges remain in force. This will mean that they will be honoured in other countries of the European Union and in countries with which we have signed agreements on the mutual recognition of court judgments.

And then we have to get down to conducting a real reform of the courts and the prosecution service, because that is absolutely essential.

What is broken can be fixed and a better system can be built for the future. But for this to succeed, judges, independent media and citizens, must not give up.

They should not be concerned that someone will call us hagglers, that we are informing on our country. It can be seen that Poland is heading towards collapse. That is why we have to speak out about this, including abroad. Poland, Polish democracy and Poland’s membership of the EU must be saved. Our geopolitical position is such that if we push ourselves out of the EU, we will fall into Russia’s arms. I have no doubt about that.

The article was published in Polish on October 29, 2021.