The ECHR will examine PiS’s illegal dissolution of the old National Council of the Judiciary

Share

Journalist covering law and politics for OKO.press. Previously journalist at Gazeta Wyborcza, Rzeczpospolita, Polska The Times, Dziennik Gazeta Prawna.

More

The European Court of Human Rights accepted the application from Judge Waldemar Żurek, who is well known for defending free courts. The judge wants the Tribunal to assess his unconstitutional removal by PiS from the National Council of the Judiciary



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



Author


Journalist covering law and politics for OKO.press. Previously journalist at Gazeta Wyborcza, Rzeczpospolita, Polska The Times, Dziennik Gazeta Prawna.


More

Published

May 22, 2020

Tags

Supreme CourtDisciplinary ChamberConstitutional Tribunaldisciplinary proceedingsPolandrule of lawZbigniew Ziobrojudicial independenceCourt of Justice of the EUEuropean CommissionNational Council of the JudiciaryjudgesEuropean UnionCourt of JusticeMałgorzata ManowskaAndrzej DudaIgor Tuleyadisciplinary systemCommissioner for Human RightsEuropean Court of Human RightsCJEUMinister of JusticeMateusz MorawieckiJarosław Kaczyńskipresidential electionsjudiciaryAdam Bodnarpreliminary rulingsdemocracyK 3/21muzzle lawHungaryelections 2020Kamil ZaradkiewiczBeata MorawiecFirst President of the Supreme CourtprosecutorsWaldemar Żurekdisciplinary commissionerEuropean Arrest WarrantProsecutor GeneralConstitutionCOVID-19Julia PrzyłębskaPresidentmedia freedomfreedom of expressionCourt of Justice of the European Unioncriminal lawMarek SafjanAleksander StepkowskiOSCEPaweł JuszczyszynNational Public ProsecutorPiotr SchabPrzemysław Radzikcriminal proceedingsPrime Ministerfreedom of assemblyStanisław BiernatExtraordinary Control and Public Affairs ChamberSupreme Administrative Courtconditionality mechanismconditionalityEU budgetCriminal ChamberLaw and JusticeprosecutionNCJMinistry of JusticeNational ProsecutorelectionsWojciech HermelińskiStanisław PiotrowiczAndrzej ZollMałgorzata Gersdorfacting first president of the Supreme CourtOrdo IurisMay 10 2020 electionsBroda and Bojara v Polandmedia independenceAmsterdam District CourtKrzysztof ParchimowiczTHEMISMaciej NawackiEAWmediaimmunityAnna DalkowskaCouncil of Europe2017policeFreedom HouseLech GarlickiEwa ŁętowskaArticle 7Venice CommissionWłodzimierz WróbelPM Mateusz MorawieckiAndrzej StępkaP 7/20Justice FundPiSC-791/19disciplinary liability for judgesNational Electoral CommissionAstradsson v IcelandPiotr PszczółkowskiJarosław WyrembakPegasusGeneral Assembly of the Supreme Court JudgesPresident of PolandPresident of the Republic of PolandJarosław GowinLGBTLGBT ideology free zonesSejmXero Flor w Polsce Sp. z o.o. v. PolandReczkowicz and Others v. PolandIustitiaKrystian MarkiewiczMichał LasotaZuzanna Rudzińska-BluszczSylwia Gregorczyk-AbramdefamationcourtsEwa WrzosekEU law primacyTVPLex Super OmniaAdam TomczyńskiBelgiumNetherlandsBogdan Święczkowskijudcial independencedemocratic backslidingViktor OrbanOLAFdecommunizationNext Generation EUvetoJózef IwulskiLaw on the NCJJustice Defence Committee – KOSrecommendationTeresa Dębowska-RomanowskaKazimierz DziałochaMirosław GranatAdam JamrózStefan JaworskiBiruta Lewaszkiewicz-PetrykowskaWojciech ŁączkowskiHuman Rights CommissionerMarek MazurkiewiczCCBEAndrzej MączyńskiThe Council of Bars and Law Societies of EuropeJanusz NiemcewiczMałgorzata Pyziak- SzafnickaStanisław Rymarpublic opinion pollFerdynand RymarzAndrzej RzeplińskiSupreme Court PresidentJerzy StępieńPiotr TulejaSławomira Wronkowska-JaśkiewiczMirosław WyrzykowskireportBohdan ZdziennickiMarek ZubikDidier ReyndersEuropean ParliamentOKO.pressZiobroMichał LaskowskiMarek PietruszyńskiPiotr Gąciarekhuman rightscorruptionEuropean Association of Judges11 January March in WarsawPaweł FilipekMaciej TaborowskiAdam SynakiewiczBelarusstate of emergencyneo-judgescoronavirusXero Flor v. PolandEU treatiesAgnieszka Niklas-BibikSłupsk Regional CourtMaciej Rutkiewiczresolution of 23 January 2020K 6/21Mirosław WróblewskiCivil ChamberJoanna Misztal-KoneckaLeon Kieresright to protestSławomir JęksaPKWWiktor JoachimkowskiRoman GiertychMariusz Kamińskiinfringment actionsurveillanceEU valuesMichał WośMinistry of FinanceCentral Anti-Corruption BureauENCJJacek SasinErnest Bejdalex NGOThe First President of the Supreme Courtcivil societyMaciej CzajkaRussiaMariusz JałoszewskiIsraelŁukasz Radkeforeign agents lawpolexitNational Recovery PlanK 7/21Dolińska-Ficek and Ozimek v PolandOrganization of Security and Co-operation in EuropeFirst President of the Suprme CourtLGBT free zonesequalityChamber of Extraordinary Verificationhate crimeshate speechcriminal codeGrzęda v PolandŻurek v PolandSobczyńska and Others v PolandRafał Trzaskowskimedia lawPrzemysła RadzikSenateMarcin WarchołElżbieta KarskaMarcin RomanowskiJacek CzaputowiczPrzemysław Czarneklegislative practiceENAZbigniew BoniekOmbudsmanKraśnikNorwayNorwegian fundsNorwegian Ministry of Foreign AffairsMichał WawrykiewiczFree CourtsC-487/19Article 6 ECHRArticle 10 ECHRRegional Court in AmsterdamOpenbaar MinisterieUrsula von der LeyenAK judgmentSimpson judgmentForum Współpracy Sędziówpublic broadcastermutual trustLMIrelandIrena MajcherAmsterdamthe Regional Court in WarsawUnited NationsLeszek MazurMaciej Miterapopulisminterim measuresautocratizationMultiannual Financial Frameworkabortion rulingequal treatmentabortionprotestsfundamental rightsthe NetherlandsDenmarkSwedenFinlandMariusz KrasońCT PresidentGermanyCelmerC354/20 PPUC412/20 PPUAusl 301 AR 104/19Karlsruheact on misdemeanoursCivil Service ActParliamentary Assembly of the Council of EuropeEUWhite Paperlustrationtransitional justice2018Nations in TransitCouncil of the EUmedia taxStanisław Zabłockiadvertising taxmediabezwyboruJacek KurskiKESMAIndex.huTelex.huJelenJózsef SzájerKlubrádióSLAPPLIBE CommitteeStrategic Lawsuits Against Public ParticipationFrans TimmermansGazeta WyborczaUS Department of StatePollitykaBrussels IRome IISwieczkowskiArticle 2Forum shoppingadvocate generalDariusz ZawistowskitransparencyEuropean Economic and Social Committeepress releaseSebastian KaletaRights and Values ProgrammeC-156/21C-157/21C-619/18Marek Piertuszyńskidefamatory statementsWorld Justice Project awardNational Prosecutor’s Officeintimidation of dissentersWojciech SadurskiBogdan ŚwiączkowskiDisicplinary ChamberjudgeTribunal of StatetransferPechOlsztyn courtKochenovPrzemysła CzarnekEvgeni TanchevEducation MinisterFreedom in the WorldKrystyna PawłowiczECJIpsosFrackowiakOlimpia Barańska-Małuszeretirement ageMariusz MuszyńskiAmnesty InternationalHudocŁukasz PiebiakRegional Court in KrakówPiebiak gateKonrad SzymańskiPiotr Bogdanowicztrans-Atlantic valuesPiotr BurasLSOauthoritarian equilibriumlawyersArticle 258Act of 20 December 2019clientelismoligarchic systemRecovery FundEuropean Public Prosecutor's Officerepressive actPolish National FoundationLux VeritatisKoen LenaertsMałgorzata BednarekPiotr WawrzykharrassmentMarian BanaśAlina CzubieniakSupreme Audit OfficeTVNjournalistslexTVNGerard BirgfellerEwa MaciejewskaPolish mediapostal voteKrakówRzeszówDagmara Pawełczyk-Woickaborderpostal vote billprimacy