Prosecutor General Zbigniew Ziobro is resorting to an extraordinary complaint to punish Judge Waldemar Żurek, one of the symbols of the defense of independent courts in Poland. He appealed to the Supreme Court against a judgement which was favourable for Żurek regarding his property settlements with his ex-wife.

Judge Waldemar Żurek from the Regional Court in Kraków is probably one of the most active judges defending the independence of the judiciary in Poland. He was doing this while he was still the press officer for the legal National Council of the Judiciary, which PiS later dissolved during its term of office in breach of the Constitution and largely elected judges to it who are willing to cooperate with Ziobro’s ministry.

Judge Żurek is constantly involved in the defence of the free courts. He appears in the media and criticises the actions of the authorities. He is also an active member of the Themis association of judges and supports repressed judges. He is paying the price for this: he has several disciplinary cases, the Central Anti-Corruption Bureau was investigating him. He was being harassed in his home court. Court President Dagmara Pawełczyk-Woicka, a Ziobro appointee and member of the new NCJ, moved him to a different division.

The judge also received hate on the internet and was being attacked in the pro-government media.

Prosecutor General defends Judge Żurek’s ex-wife

Now, Prosecutor General Zbigniew Ziobro has taken an interest himself in Żurek. He reached for a measure which, according to PiS’s assumptions, was supposed to be used to cancel old, unjust judgments. And it was supposed to primarily help ordinary people, who cannot afford reputable lawyers.

The Prosecutor General has just filed an extraordinary complaint to the Chamber of Control and Extraordinary Affairs of the Supreme Court. In a way, the complaint is against Waldemar Żurek, because the Prosecutor General contested a final judgment in a civil case, which was favourable for the judge. The extraordinary complaint was signed on behalf of the Prosecutor General by his deputy, Robert Hernand.

The complaint is surprising because it applies to Judge Waldemar Żurek’s private financial settlements with his ex-wife (also a lawyer), whom he divorced 11 years ago. The complaint was requested by the judge’s ex-wife, who had previously filed complaints against Żurek.

She sent a copy of one of them to the then deputy minister of justice, now MEP Patryk Jaki and to ‘Gazeta Polska’, attaching materials on private family matters. Some of these materials later appeared in articles attacking Judge Żurek. Has the Prosecutor General now returned the favour to Żurek’s ex-wife by filing an extraordinary complaint with the Supreme Court, or does he simply want to punish the defiant judge by getting involved in a family dispute?

Prosecutor General: the Constitution was breached in the case of Żurek’s settlements

In the complaint, the Prosecutor General contested the judgment of the Regional Court in Bielsko-Biała of 1 March 2018. This is an appeal judgment. At that time, the Regional Court upheld the judgment of the District Court in Bielsko-Biała of 2017, which was largely favourable for Judge Żurek.

The action was filed by Judge Waldemar Żurek, demanding financial settlements with his ex-wife regarding a mortgage loan on one part of the property which they had to split. They took out the loan together after they were already separated, because the judge had to move out of the house he left to his spouse. And he started building a new house.

Żurek also signed a declaration with his wife in which they agreed that he would be the one to pay the high instalments on two mortgages which they had taken out during their marriage. These applied to the construction of the house in which the wife was staying and the construction of a new house for the judge. In exchange, his wife was not to apply for alimony, although this was ordered for her by the court in the divorce judgment.

The judge complied with the agreement, but a year after the divorce, his ex-wife applied to the bailiff demanding the enforcement of the ‘overdue’ alimony. The judge was surprised to learn of this while on holiday with his daughters, when the bailiff wanted to seize his account. He quickly borrowed the money and paid the allegedly overdue alimony and continued to pay it.

However, this worsened the relationship between the former spouses. The agreement on mutual settlements was no longer valid. Then, the judge demanded the return of a part of one mortgage loan, which, according to his assurances, and as the courts of both instances in Bielsko-Biała accepted, he had used in part for fitting out his ex-wife’s house. This is what the action was about. The judge won the case and the court ordered his ex-wife to return PLN 64,500 to Żurek.

The court accepted the judge’s arguments that he had fulfilled his part of the agreement. It also accepted that the funds from the mortgage loan were partly used to fit out his ex-wife’s house.

And now the Prosecutor General is contesting this final judgment before the Chamber of Extraordinary Control and Public Affairs.

Ziobro’s deputy, Prosecutor Robert Hernand, emphasises that, in the extraordinary complaint, he is challenging the final judgment because of ‘the need to ensure compliance with the principle of a democratic state of law implementing the principles of social justice’.

In his appeal, Hernand strikes a high note. He alleges that the Regional Court in Bielsko-Biała breached the principles of freedom, as well as human and civil rights guaranteed by the Constitution.

Hernand believes the court unreasonably accepted that the judge’s ex-wife was liable for the mortgage loan, because, according to the agreement with the bank, the loan was intended only for the judge’s new house. Hernand also accused the judgment of misinterpreting the Civil Procedures Code. He believes Judge Żurek failed to prove that he had used some of the loan to fit out his former wife’s house (the judge had a witness, the contractor of the work, to prove this). He is therefore alleging that the judgment does not take into account the materials in the file, because, during the proceedings, his ex-wife denied that the outlay on the house had come from the disputed loan.

The court orders a former partner to apologise to the judge

Judge Żurek’s settlements with his former spouse are not straightforward.

In 2017, when Żurek was still the press officer for the old, legal NCJ, she filed a complaint against him with the NCJ. She wrote in it that her former spouse was not paying alimony for his two daughters. That he had not agreed to an operation on one of them. She suggested that he was to blame for their divorce and that he had taken advantage of his position in cases he was conducting against her.

She also sent the complaint as a copy for the attention of the then deputy minister of justice Patryk Jaki, the editor-in-chief of ‘Gazeta Polska’ Tomasz Sakiewicz and Michał Wójcik, then a PiS MP, currently a deputy minister of justice. She attached a number of documents from his private family life, with sensitive personal and data on their property, including data on people from the judge’s new relationship, to the complaint.

A fragment of this complaint appeared in ‘Super Express’; it was also reported by ‘Gazeta Polska’. Next, other media wrote that Żurek was allegedly not paying alimony and that he had blocked his daughter’s operation. They also wrote about his property. The effect was that the judge was subjected to a deluge of hatred on the Internet.

In defence of his reputation, the judge sued his former spouse for the protection of his personal rights. In December 2019, the Regional Court in Opole obligated her to apologise to the judge in the pages of ‘Gazeta Polska’ in a non-final order. She is to apologise to him for giving false information in the complaint to the NCJ, which also reached the Ministry of Justice.

The court in Opole ruled that Judge Waldemar Żurek had ‘properly paid alimony’ for his two daughters, while the divorce was without adjudication of guilt. He also had not taken advantage of his position in the NCJ and as a judge in a Kraków court while settling his disputes with his former spouse in the courts.

The Opole court also found that it was untrue that Żurek had not agreed to his daughter’s operation. He had agreed but within the framework of reimbursement from the National Health Fund. However, he did not agree to an expensive procedure in a private clinic.

National Prosecutor’s Office: we are doing this for the good of Poles undergoing divorce

We asked the press office of the National Prosecutor’s Office why it had filed an extraordinary complaint in Judge Żurek’s private case and what the important social interest behind it was. And how many such complaints have already been submitted to the Supreme Court on behalf of the prosecutor’s office. The press office of the National Prosecutor’s Office responded:

‘The extraordinary complaint to the Chamber of Extraordinary Control and Public Affairs of the Supreme Court was filed by the Prosecutor General at the request of Judge Waldemar Żurek’s wife. The case applies to the financial obligations of the divorcees who took out a construction and mortgage loan while they were married. In the opinion of the Prosecutor General, the court erroneously held that, after the divorce, the former spouses should repay half the loan each, even though the loan was used by only one of them.

The resolution of this individual case is important in that it can affect the line of judgments of courts in cases involving financial obligations of former spouses arising from loans taken out by them while they were still married. This applies to tens of thousands of divorcing Poles, for whom even a final divorce does not put an end to property disputes. Therefore, the extraordinary appeal, in this case, lies in the broad interest of the public. The Prosecutor General has filed over a hundred extraordinary complaints with the Supreme Court to date.’

We also asked Waldemar Żurek to comment on this case:

‘What the lawyers predicted has happened: the extraordinary complaint [introduced by PiS – ed.] will be used instrumentally to oppress the Prosecutor General’s opponents. I have no doubts about this, because the string of various inspections that I experienced came up with nothing. And when the Minister of Justice no longer has any moves against me, he either accuses me for my statements about the Constitution [this is done by the disciplinary commissioners – ed.] or he attempts to reverse private cases that ended several years ago. The prosecutor is becoming a super court,’ Żurek tells us. He adds that he will submit a response to the extraordinary complaint to the Supreme Court.

This is not the first time the Prosecutor General has intervened in the private affairs of defiant judges

This is not the first time that Ziobro’s prosecution office has intervened in a private case to punish a defiant judge. Last year it filed a cassation appeal with the Supreme Court in a private case involving a Warsaw judge, Piotr Gąciarek, an active member of the largest association of judges, Iustitia. It contested the criminal conviction of a woman who had conned Gąciarek out of money over the internet. The woman concealed her true identity, claiming to be someone else and built a so-called legend around herself. When the matter came to light, the woman voluntarily surrendered to punishment.

In early 2019, the Prosecutor General filed a cassation appeal with the Supreme Court. He supported a fraudster who had swindled Judge Gąciarek out of money. In the complaint, he argues that the judge is not a victim of fraud. The complaint was signed on behalf of the Prosecutor General by his deputy, Robert Hernand, the same person who is now appealing against the judgment that was favourable for Judge Żurek. The case is pending in the Supreme Court.

The case with the swindler would not have come to light had it not been for the pro-government TVP, which produced materials striking at Gąciarek. The attack was no accident because the judge is strongly committed to defending the free courts and is not afraid of criticising Ziobro’s ‘reforms’. The TVP case, as the media wrote, was supposed to have been broadcast by Mała Emi [Little Emi – translator], who organised the hate campaign on judges, and then herself disclosed what was happening behind the scenes in the hate scandal.

Translated by Roman Wojtasz

The article was posted in Polish at OKO.press on 11 June 2020.