HFHR submits amicus curiae brief to ECtHR in the case of a Polish judge

♦ The Helsinki Foundation for Human Rights has submitted an amicus curiae brief to the European Court of Human Rights in the case of Żurek v. Poland.

♦ The applicant, judge Waldemar Żurek, complains that his rights guaranteed by the European Convention on Human Rights were violated as a result of early termination of his membership in the National Council of the Judiciary and the Government’s failure to ensure the exercise of his right to a court.

♦ Judge Żurek also argues that his freedom of expression has been violated as he was exposed to various forms of repression due to his criticism of the judicial reforms implemented by the Government.

The applicant, Waldemar Żurek, is a judge of the Regional Court in Kraków. For many years, he served as a spokesperson for that court. Judge Żurek is a member of the Association of Judges Themis. He was elected to the National Council of the Judiciary for the first time in 2010 and was re-elected for another four-year term in 2014. In 2014, Mr Żurek was also appointed the spokesperson for the NCJ. Following the change of government in 2015, judge Żurek repeatedly criticised the reforms of the judicial system and the organisation of the Constitutional Tribunal. From that moment on, he became one of the most recognizable critics of the Government’s policies affecting the justice system.

Have the criticisms of judicial reforms led to repressions?

In December 2017, the Parliament passed a law which terminated the mandate of all judges sitting on the National Council of the Judiciary. The lawmakers justified this step by invoking the need to implement the Constitutional Tribunal’s judgment of 20 June 2017, in which the Polish constitutional court ruled that the provisions setting out the rules of electing NCJ members nominated by judges and introducing “individual” term of office for each elected member of the NCJ were unconstitutional. The new law introduced a completely different model for the election of judicial NCJ members, who were to be appointed not by other judges, but by the Sejm, the Polish Parliament’s lower house. The law did not provide the dismissed members of the NCJ with any remedy against their dismissal. The new law has been widely criticized both in Poland and abroad.

In March 2018, the Sejm elected new judicial members of the National Council of the Judiciary, which led to the expiration of the term of office of the incumbent members, including judge Żurek. Moreover, in January 2018, the new President of the Regional Court in Kraków, appointed by Minister of Justice Zbigniew Ziobro under a 2017 law, dismissed judge Żurek from his position as the Court’s spokesperson. The judge also points out that tax authorities and the Central Anti-corruption Bureau have audited his and his wife’s property statements. According to judge Żurek, these actions were intended to produce a “chilling effect” to discourage him from expressing further criticism of the Government’s actions.

In his ECtHR application, Judge Żurek alleges that Polish authorities infringed Convention Article 6 (1) (right to a court), Article 13 (right to an effective remedy) and Article 10 (freedom of expression).

HFHR files the amicus curiae brief

The amicus curiae brief lodged by the HFHR highlights two problems: the standards of judges’ freedom of expression and the repressions directed against independent judges in Poland. The Foundation also recalled its position on the early termination of the term of office of the NCJ members, previously expressed in the amicus curiae brief submitted in the case of Grzęda v. Poland.

The HFHR has underlined that according to international standards judges are entitled to exercise their freedom of expression. Judges should show restraint in exercising that freedom to avoid undermining the people’s confidence in the judiciary and not to undermine the guarantees attached to the right to an impartial tribunal. However, it would be equally unacceptable to absolutely deprive judges of the right to speak on matters of major public importance such as, in particular, protection of the independence of the judiciary. This issue is particularly important in times of a crisis of the rule of law. Whenever a judge crosses the boundaries of freedom of expression, such misconduct should be investigated in fair disciplinary proceedings before an independent body. It would be unacceptable, however, for judges to be subjected to open or disguised repression in connection with their critical statements about the government’s actions affecting the justice system. In the Foundation’s view, such repressions would pose a threat not only to the rights of judges but also to everyone’s right to an independent court.

In the second part of its opinion, the HFHR described many cases of repression and pressure on independent judges. The Foundation drew attention to many controversial changes to the rules of judges’ disciplinary liability, including the creation of the Disciplinary Chamber of the Supreme Court, which, in the opinion of many, does not meet the standards of independence and impartiality. Independence of the judiciary is also threatened by the enactment of the so-called “muzzle law”, which entered into force at the beginning of 2020. The HFHR noted problems related to the politically-motivated proceedings brought to investigate or discipline judges exercising their freedom of expression or assembly. There are also cases where disciplinary proceedings have been initiated in connection with a specific judgment or certain procedural steps, in particular those aimed at verifying the legitimacy of appointments and the fulfilment of standards of judicial independence by other judges. The HFHR has also drawn attention to cases in which the public prosecution service has made requests for the waiver of immunity of judges in circumstances that might suggest a desire to put pressure on judges known for their criticism of the Government’s policies in the area of justice.

Timeline:

⇒ 15 March 2010 – Waldemar Żurek is elected for his first term on the National Council of the Judiciary.

⇒ 2 March 2014 – judge Żurek is re-elected as a member of the NCJ.

⇒ 17 January 2018 – a law amending the National Judiciary Council Act enters into force, introducing new rules for the election of judges to the NCJ and providing for the shortening of the term of office of the incumbent NCJ judicial members.

⇒ 6 March 2018 – 15 new judicial members of the National Council of the Judiciary are elected to replace the incumbent members whose term of office expires prematurely.

⇒ 6 August 2018 – W. Żurek lodges his application to the ECtHR.

⇒ 14 May 2020 – the application is communicated to Poland.

⇒ 27 October 2020 – the HFHR submits the amicus curiae brief.