text by Mariusz Jałoszewski and Maria Pankowska

The Strasbourg court has just accepted Waldemar Żurek’s application. He is a judge who has been involved in defending the independence of the judiciary for several years, for which he is now paying by being subjected to disciplinary proceedings.

Żurek began to defend the free courts as a member and spokesperson of the old, legal National Council of the Judiciary. It was then that he became one of the faces of the defence of justice. Since 2015 he has been criticising the series of laws drawn up by PiS which subordinate the judiciary to politicians.

PiS dissolved the old NCJ by a law in 2017, interrupting its term. This move was against the Constitution. In practice, this meant throwing the judges out of it. In 2018, PiS appointed a new NCJ in its place. This was also in violation of the Constitution, because judges who became members of the Council were elected for the first time by MPs from the PiS and Kukiz’15 parties.

The new NCJ mainly consists of judges who have started to cooperate with Zbigniew Ziobro’s justice ministry, and this kind of NCJ is not independent of the executive. It often gives promotions to judges who are ‘on its side’.

However, Judge Żurek has not let himself be broken. He now defends free courts from Kraków as a line judge. Moreover, he has also been harassed in his home court by the new president of the court, Dagmara Pawełczyk-Woicka, a nominee of Minister Ziobro and a member of the new NCJ. First, she dismissed Żurek from his position as spokesperson for civil matters, and then transferred him against his will to another department, where he was given a pile of outstanding cases to deal with.

Judge Żurek writes to the Tribunal about the harassment he has suffered

Żurek did not forget the dissolution of the old, legal NCJ; he lodged a complaint with the European Court of Human Rights in Strasbourg. This court has nothing to do with the Court of Justice of the European Union in Luxembourg, which is also investigating cases from Poland, but in terms of compliance with EU law.

Now the ECtHR has accepted the complaint from Judge Żurek. In his complaint to the Court, the judge alleged there had been breaches of Articles 6, 10 and 13 of the European Convention on Human Rights.

Article 6 concerns the right to a fair trial, and Article 13 concerns the right to appeal. Judge Żurek could not appeal anywhere against his removal from the old National Council of the Judiciary.

Article 10, on the other hand, deals with freedom of expression. In his complaint to the Tribunal, Judge Żurek argues that as a spokesman for the old NCJ, he has been harassed for what he has said since 2015about the government’s ‘reforms’ to the courts. He was first dismissed from the NCJ, and then dismissed from the office of press spokesperson in a Krakow court. He was transferred to another department in the court, and was also investigated by the tax office and the Anti-Corruption Bureau.

The Polish government has already been informed by Strasbourg about the receipt of the application. PiS now has three months to reach a possible settlement with the judge. For example, he could be paid compensation for his losses and have his legal costs covered. It is doubtful, however, that such a proposal would satisfy Judge Żurek, who is still undergoing official harassment (new disciplinary cases have been brought against him). For him, the case in Strasbourg is a matter of honour. He lodged the complaint there in order to clarify once and for all the matter of PiS’s early dissolution of the old National Council of the Judiciary.

If the parties fail to reach an agreement, the government will have the right to submit a unilateral declaration. The Court will assess it and decide whether Żurek’s case will be continued, and will proceed to the contentious phase.

At this stage, both parties will submit their observations to the ECtHR. The Polish government will be given another three months to refer to both the admissibility of Żurek’s application and its content. Judge Żurek is being represented at the Court by the lawyers Mikołaj Pietrzak and Małgorzata Mączka-Pacholak.

Will Judge Żurek return to the NCJ?

The Żurek case in Strasbourg is important. A win for him will have not only moral, but also legal and international significance. “Until now, no international body has comprehensively and explicitly examined the shortening of a constitutional body’s term of office by an ordinary law,” comments Maczka-Pacholak.

Will the judge return to the National Council of the Judiciary if he wins in Strasbourg? Theoretically, if the Tribunal rules on the removal of the violation of law, that could open the way for the judge to return to the NCJ. It is doubtful, however, that PiS would implement such a judgment, because it has already set up a new Council with a new composition. However, the assessment of the changes to the NCJ carried out by PiS will be important in the ECtHR’s judgment. And this in turn will be important for how the rule of law in Poland is assessed on the international stage.

The importance of this case has been emphasised by the Tribunal itself, as it acknowledges in its communication to the parties that Żurek’s case will most likely be a leading case. This means that the outcome of the judge’s dispute with the Polish government will set the standard for subsequent cases of this type.

The Tribunal has already heard one similar case, when it came down on the side of the independent judges. In 2016, the ECtHR issued a judgment regarding a judge from Hungary, Andras Baka, was the head of the local NCJ and the president of the Supreme Court there. But Viktor Orbán deprived him of his function, eliminating the Supreme Court and appointing a Curia in his place. The Strasbourg court found that the Baka’s right to trial had been violated; he was unable to appeal against being deprived of his function as president of the Supreme Court and head of Hungary’s NCJ. The Tribunal also stated that his freedom of speech had been violated because, Baka had spoken in public, including in parliament, as the chairman of the Hungarian KRS, criticising the reforms of the judiciary. Judge Żurek has found himself in exactly the same situation.

Translated by Jim Todd