A real milestone
Waldemar Żurek v. Poland judgment of the European Court of Human Rights should be regarded a real milestone in relations with European institutions
On 16 June 2022 the European Court of Human Rights announced its judgment in the case of Waldemar Żurek v Poland (Application no. 39650/18. The Strasbourg Court found that depriving Judge Żurek of his membership of the National Council of the Judiciary before the end of his term of office violated his right to a court, as he could not appeal the decision. The Court also found that Waldemar Żurek's freedom of expression had been violated. The ruling was long awaited by defenders of the rule of law and civil society. Although this is yet another ruling of the Strasbourg Court on the rule of law in Poland (not to mention the rulings of the EU Court of Justice), it is of absolutely exceptional importance.
I have known Judge Waldemar Żurek for years. Always honest, concrete, clear in his message and courageous. When, years later, I found out that at the end of communist Poland he was active in the democratic opposition (Confederation of Independent Poland, Konfederacja Polski Niepodległej), many points of his biography came together for me. In the first period of activity of the Association of Polish Judges Iustitia, he belonged to that group of judges who advocated reforms, bringing the judiciary closer to the citizens, and introducing good practices in the courts. Later, there were divisions in Iustitia, and W. Żurek and other judges founded the smaller but thriving Themis Judges' Association. Later, W. Żurek, all the while judging in Krakow, became a member of the National Council of the Judiciary, and thanks to his excellent cooperation with the media and his communication skills, he became the spokesperson and main media face of the NCJ.
When the attack on the independent Constitutional Court took place, the judges of the common courts did not speak out that often about the crisis of the rule of law. The prevailing belief in many judicial circles was that the changes would not extend to the courts, that the 'Law and Justice' government would not decide to attack the courts and especially the Supreme Court. Waldemar Żurek warned against such thinking from the beginning, and inspired the National Council of the Judiciary to be proactive. Therefore, the NCJ has participated in the public debate on the rule of law from the very beginning and has repeatedly appeared before the Constitutional Court. The statements of W. Żurek were interspersed with those of Dariusz Zawistowski, then head of the NCJ.
The attack on the judiciary came later, starting in 2017. Replacing court presidents, shortening the term of office of the National Council of the Judiciary, lowering the retirement age of Supreme Court judges, creating a disciplinary apparatus. Judge Waldemar Żurek, who has consistently commented on and evaluated the changes, also as spokesperson for the Krakow District Court and as a member of the board of the Themis Judges' Association, has become a game for disciplinary ombudsmen, but also for other authorities. As a result, there are more than 20 disciplinary proceedings pending against him, the Prosecutor General has filed extraordinary complaints in his private cases concerning the division of property with his ex-wife. Massive hate has been poured at him on the internet, and the government was able to politicize even his ordinary case concerning an accident at work. The CBA has been looking into his asset declarations, What's more, his current boss at the Regional Court in Krakow, SSO Dagmara Pawełczyk-Woicka, has recently become the chairwoman of the National Council of the Judiciary, which is unlikely to augur the end of Judge Żurek's problems.
Waldemar Żurek has become a key figure in the fight for the rule of law in Poland. This has been recognised by the European Court of Human Rights stating that 'he is one of the most emblematic representatives of the judicial community in Poland, who constantly defends the rule of law and the independence of the judiciary'. This type of wording rarely appears in the case law of the Strasbourg Court. The adjectives are usually reserved for distinguished human rights defenders or repressed journalists. That is why agreeing by ECtHR to arguments of Waldemar Żurek will be important for future debates. For it shows who in contemporary Poland is the victim of undemocratic changes, who risks the most, who deserves real respect.
W. Żurek's allegations before the Strasbourg Court focused on two issues. The first one - the shortening of the term of office of the members of the NCJ was already considered in the recent judgment of the Strasbourg Court in the case of Jan Grzęda v Poland (judgment of 15 March 2022, application no. 43572/18). Already at that time, the Grand Chamber of the Court (i.e. 17 judges) had prejudged that this type of action on the part of the legislative authority, with no possibility of appeal, violated the right to a court. The only judge who filed a dissenting opinion was Judge Krzysztof Wojtyczek. In the Waldemar Żurek case, the Court repeated its earlier standard. It found a violation of the right to a trial (Article 6 of the European Convention on Human Rights). Judge K. Wojtyczek again disagreed with this thesis and filed a dissenting opinion.
The second plea concerned a violation of freedom of expression, i.e. Article 10 of the European Convention on Human Rights. In this case, the entire panel had no doubt. The ruling on this point was unanimous. The conduct of the national authorities with regard to the various statements made by Mr Żurek in his capacity as spokesperson for the NCJ, spokesperson for the Krakow Regional Court or representative of the judges' associations was assessed as violating the standards of freedom of expression. Judge K. Wojtyczek submitted a concurring opinion (i.e. he agreed with the conclusion, but presented a different argumentation), which may give rise to interesting reflections in the future on the standards of freedom of expression of judges. It is interesting to note the suggestion by K. Wojtyczek that the CBA's scrutiny of Mr Żurek's asset declarations could potentially violate Article 8 of the Convention, i.e. the right to respect for private and family life.
Much has already been written in Poland about the so-called 'chilling effect'. In a nutshell, this concept means that various actions of the apparatus of power may deter some people from taking actions that are expected of them, due to fear of sanctions. For journalists, a chilling effect may be the defamation provision (Article 212 of the Criminal Code) and its application. For judges - disciplinary proceedings or other harassment (as well as announced legislative changes). The set of facts from the last few years of W. Zurek's life leaves no doubt that the authorities wanted to silence him. For observers of public life, this is an obvious statement. It has now been reflected in the Strasbourg ruling.
But already a few years ago, the question of whether judges should speak out at all on matters of government policy arose in the public debate. European human rights standards were not clear on this point. It was not without reason that, when speaking on this topic, I usually quoted the rulings of the Pan-American Court of Human Rights in Costa Rica. After the Waldemar Żurek case, there will no longer be any doubt. The Strasbourg Court has made it clear that speaking out in defence of the rule of law is not only a matter of freedom of speech for any judge, but is in fact his duty, especially when the values of defending the rule of law and the independence of the judiciary are at stake. If, on the other hand, the statements are made on behalf of a constitutional body (such as the NCJ), in a spokesperson capacity or as a representative of a judicial organisation, the protection of freedom of expression is even greater. It is important that these utterances are made in the context of the defence of specific values and refer to universally recognised standards. For these reasons, the judgment in the Waldemar Żurek case may encourage many judges to continue the fight to insist on standards of judicial independence. It will also provide an excellent argument for demanding discontinuance of proceedings that are pending against judges.
Someone may say - so what if Waldemar Żurek won, if the authorities will not back down from further changes destroying the judiciary. Of course, I am not naïve and I do not expect the Minister of Justice and his comrades to turn tail and keep quiet. Quite the contrary. Probably in a while, aggressive rhetoric will be back in play and the Constitutional Court will be harnessed to the job. But each successive Luxembourg and Strasbourg judgment makes the authoritarian game more difficult because it offers hope. And hope supported by legal instruments creates a chance for the victory of democracy, as long as Poland still wants to belong to the European Union and the Western community of values.
25 years ago, Marek Antoni Nowicki, a tireless promoter of the activities of the Strasbourg Court, published the book 'Milestones. Jurisprudence of the European Court of Human Rights'. The phrase 'milestones' has recently been adopted into the national debate in the context of the implementation of the EU Recovery Plan. However, it is the judgment in the case of Judge Waldemar Żurek that is the real milestone. Without doubt, it defines who has been on the bright side of power for years and who should be listened to when assessing the conduct of the Polish government.
Orignal article has been published in “Polityka” internet edition on 18 June 2022.