by Jarosław Sidorowicz

An order in which Kraków-based Judge Waldemar Żurek asks his superiors whether they had taken steps to ensure that neo-judges did not issue rulings that could result in damages in the future was removed from his case files. Instead, a photocopy of the same document was inserted, but without that question.

‘This is unbelievable,’ says Judge Waldemar Żurek. He is known for his defence of the rule of law and his consistent criticism of the changes being forced through by PiS in the judiciary.

Judge Zurek asks about neo-judges

The judge is handling a case brought against a bank by its customers. It applies to a loan in Swiss francs they had taken out years ago. During the proceedings, Judge Żurek decided that he would suspend repayment of further instalments for the duration of the proceedings. He acknowledged that the lack of such security would make it difficult to enforce a potential judgment or even ‘prevent the achievement of the objective of the proceedings’.

The bank appealed, the appeal was heard by a judge who had been seconded to the regional court. And she upheld the appeal. The parties no longer have any opportunity to challenge this decision regarding this matter.

The case returned to the referring judge.  He set a date for a hearing, but also asked the head of his division what steps he intended to take to ensure that neo-judges (appointed with the participation of the political National Council of the Judiciary) or judges seconded to higher courts while Minister Ziobro was in office did not issue rulings that could result in future actions against the state for damages. He mentioned, among other things, the judgment of 16 November 2021 before the Grand Chamber of the Court of Justice of the European Union. In that judgment, the CJEU ruled that EU law prohibits the system that is applicable in Poland which allows the minister of justice to second judges to higher instance criminal courts, under which the minister of justice can remove a judge at any time and without justification. Therefore, they are not independent.

‘My question was intended to ensure that the authorities do not sit on this matter with their arms folded because, in the light of the rulings of the European courts, in the future, judgments of neo-judges or judges seconded to courts of higher instances can result in actions for damages against the state. Because doubts will be raised that judgments or other decisions were made by people who are not judges or judges who are dependent on the minister’s will,’ explains Judge Waldemar Żurek.

Disappearing order

However, this part of Judge Żurek’s order was removed from the case files. His original order with the question was removed and a photocopy was inserted in its place, which does not have the question to the head of the division regarding steps taken with regard to neo-judges and seconded judges. Furthermore, there is only a photocopy of the judge’s signature on it, and not the original. The case files also have an official note from an administrative employee who, when making a note of the ‘exclusion of the original’ of the document, refers to an order from the president of the Regional Court in Kraków, Dagmara Pawełczyk-Woicka. However, according to our findings the case files do not contain any such order.

‘This even appears to be forgery of documents. This matter should be reported to the prosecutor’s office,’ Judge Waldemar Żurek does not hide his indignation. ‘Even if someone disagrees with the content of my order, the original should remain in the case files; it should not be replaced with a photocopy with the question cut out. Nor is there any order of the court president on the basis of which, at least according to the note made by the administrative clerk, the original was removed,’ Judge Żurek added.

Our source at the Kraków court tells us that the whole matter is no coincidence. ‘The secretarial staff was ordered to catch cases in rulings of judges in which the status of neo-judges was questioned and to inform the court authorities about this. They heard that the failure to comply could mean consequences for them at work.

According to our information, the president of the regional court supposedly issued such a ‘request’ to the management of the secretariat of the first civil division of the regional court.

Judge Żurek has already approached the president of the Court of Appeal in Kraków to investigate the basis on which his original order was removed from the files of the case he is handling.

Translated by Roman Wojtasz

Published in Polish on 4 March 2022 at wyborcza.pl Kraków