Supreme Court queries ECJ about new appointee
Controversy is growing around the forced transfer of judge and former National Council of Judiciary spokesperson, Waldemar Żurek, from the second instance district court in Cracow to a court of the first instance.
Alongside his parallel responsibilities as a justice and spokesperson of the district court in Cracow, Żurek was a two-term member and official spokesperson of the National Council of Judiciary until 2018. He is well known as being strongly opposed to changes made by the current ruling party to the justice system, including those concerning appointments of judges to the Supreme Court.
By the decision of the newly elected president of the district court in Cracow, Dagmara Pawełczyk-Woicka, who is known to be an acquaintance of the Minister of Justice as well as a recently appointed member of the KRS, Żurek was dismissed from his role as spokesperson of the court at the beginning of 2018. Later that year, a decision by the same president of the court forcefully transferred him from the court of the second instance to one of the first instance court, which is widely recognized as a career step-down. The decision was undertaken in the absence of consultations with the court college, which is usually a prerequisite, and can be seen as an attempt to intimidate judges advocating for the independence of the judiciary.
A statement of the Justice Defence Committee dated 8 September 2018 reads:
The Justice Defence Committee strongly objects to the transfer of judge Waldemar Żurek to another department of the District Court in Kraków against his will. The decision of the President of the District Court in Krakow, Dagmara Pawelczyk-Woicka, undertaken without consulting the court college, is a form of repression against the judge who, acting in accordance with the pledge, defends the foundations of the lawful state.
The Justice Defence Committee does not question the right of the president of the court to conduct personnel policy. However, it should be transparent, based on clear criteria, and done in accordance with applicable regulations, after consultation with the court college. Transferring Judge Waldemar Żurek to another department with immediate effect, without meeting these conditions, in a situation where there were still open cases requiring his assistance, has disorganized work within the court and is a form of harassment towards the judge.
The decision not only violates the rights of citizens to speedy resolution of their cases in court, but is a manifestation of disregard towards the rights of the bench’s self-government (no opinion of the college) and another attempt to intimidate judges and stop them from acting to defend the independence of the courts.
An appeal filed by Żurek against the decision to the Supreme Court was rejected single-handedly by its appointee Aleksander Stępkowski of the Extraordinary Review and Public Affairs Chamber. The problem with the legitimacy of this decision lies mainly in the fact that prior to the ruling Żurek petitioned for exclusion of all the judges of this Chamber from his case, as he did not accept their authority in light of their controversial appointment by the current government, and he feared that their decision might be politically driven. In addition, Żurek has been subject to disciplinary investigations, one regarding potential tax fraud, one about allegedly false accusations against fellow legal service officers, and one concerning participation in a public event promoting reform of judiciary.
Earlier this year, in May, the Civil Chamber of the Supreme Court adjourned Żurek’s appeal and presented two questions of law to an enlarged panel of seven Supreme Court judges. The Supreme Court concluded that a serious breach of Polish law had taken place during the nomination proceedings, therefore casting doubt over whether a court whose members were chosen in such a way can still be considered impartial, independent and compliant with EU law. As a consequence, the following question was referred to the European Court of Justice:
“Should Article 2, Article 6(1) and 6(3) and the second subparagraph of Article 19(1) of the Treaty on European Union in conjunction with Article 47 of the Charter of Fundamental Rights and Article 267 of the Treaty on the Functioning of European Union be interpreted as meaning that a court, composed of a person appointed as a result of a flagrant breach of Member State’s law on judicial appointments, in particular consisting in appointing that person despite: (1) prior appeal against nominating decision (2) the suspension of operation of that decision by a competent court (Supreme Administrative Court) and in line with national law, and (3) the proceedings before that have not been completed before the appointment took place, is not an independent and impartial court established by law?”
[by Martyna Olejnik and Patryk Wachowiec]