ECHR decision in the case of Żurek v. Poland
– This is yet another important judgment of the ECHR critisising changes in the judiciary implemented in recent years. This time, the ECHR also examined allegations concerning the right to the protection of statements made by judge Żurek, who spoke out in a public debate and criticized changes threatening the independence of the judiciary. The ECtHR found that the actions taken against Waldemar Żurek had a "chilling effect" and were intended to deter not only the appellant, but also other members of the judiciary. It is extremely important that the ECHR noted also that the general right to freedom of expression of judges to address matters concerning the functioning of the justice system may be transformed into a corresponding duty to speak out in defence of the rule of law and judicial independence when those fundamental values come under threat – says adv. Małgorzata Mączka-Pacholak.
– The judgment of the European Court of Human Rights essentially confirmed not only the fact that the rights and freedoms of judge Waldemar Żurek were violated by the instrumental and illegal removal from the National Council of the Judiciary, but also showed how illegal were the actions taken by political authorities who carried out a purge in the NCJ, at the beginning of 2018. This is another judgment confirming the reprehensibility of the so-called justice reform in recent years – explains adv. Mikołaj Pietrzak.
Judge Waldemar Żurek lodged his application to the ECHR in 2018. Relying on Article 6 § 1 (right of access to court) and Article 13 (right to an effective remedy) of the European Convention on Human Rights, judge Żurek alleged that he was denied access to a tribunal and that there was no procedure, judicial or otherwise, to contest the premature termination of his mandate. Also relying on Article 10 (freedom of expression), he alleged that his dismissal as spokesperson for the regional court and the NCJ, combined with the authorities’ decisions to inspect his and his wife’s financial declarations and tax returns in 2017, were intended to punish him for expressing criticism of the Government’s legislative changes and warn other judges from doing the same.
Following the same reasoning as in the recent Grand Chamber case Grzęda v. Poland (no. 43572/18), the Court found that the lack of judicial review of the decision to remove judge Żurek from the NCJ had breached his right of access to a court. The Court also found that the accumulation of measures taken against Waldemar Żurek – including his dismissal as spokesperson of a regional court, the audit of his financial declarations and the inspection of his judicial work – had been aimed at intimidating him because of the views that he had expressed in defence of the rule of law and judicial independence. In finding these violations, the Court emphasised the overall context of successive judicial reforms, which had resulted in the weakening of judicial independence and what has widely been described as the rule-of-law crisis in Poland.
The Court held that Poland was to pay the applicant 15,000 euros in respect of non-pecuniary damage and EUR 10,000 in respect of costs and expenses.
Waldemar Żurek, judge with years of experience, was a member of the NCJ, first elected in 2010 and then re-elected in 2014 for a second four-year term of office. In 2014 he was appointed the NCJ’s spokesperson, and, as such, became one of the main critics of the changes to the judiciary initiated by the legislative and executive branches of the new Government which had come to power in 2015. He pointed in particular to the threat to judicial independence stemming from the Government’s proposals. His mandate as a member of the NCJ was, however, prematurely ended in 2018, following the entry into force of new legislation in the context of wide-scale reform to the judiciary. In particular, the Act Amending the Act on the NCJ of 2017 provided that judicial members of the NCJ would no longer be elected by judges but by the Sejm (the lower house of the Parliament), and that the newly elected members would immediately replace those elected under the previous legislation. Thus, when the Sejm elected 15 judges as new members of the NCJ on 6 March 2018, the applicant’s mandate was terminated. He did not receive any official notification. In consequence, he also ceased to act as the NCJ’s spokesperson. Earlier in 2018 the applicant had also been removed from his position as Cracow Regional Court’s spokesperson.
The bill amending the legislation on the NCJ was criticised at national and international level. The adoption by Parliament of this bill, together with bills on the Supreme Court and on the ordinary courts, sparked large public protests in July 2017. Several national bodies issued opinions stating that the amendments violated the Constitution because they allowed the legislature to gain control over the NCJ, contrary to the principle of the separation of powers.