In its latest reprimand against the country, a magistrate for Europe’s top court says Poland broke the law by establishing special chambers in the Supreme Court to handle judges’ complaints.
(CN) — A magistrate for Europe’s top court on Thursday sided with an outspoken Polish judge who accuses the country’s far-right government of seeking to capture the judiciary by harassing judges it doesn’t like and trying to kick them off the bench.
In an advisory opinion for the European Court of Justice, Advocate General Evgeni Tanchev said Poland committed a serious breach of both Polish and European Union laws by setting up what critics have called “kangaroo courts” inside the Supreme Court to target judges the government doesn’t like.
Tanchev’s opinion, which serves as nonbinding legal guidance for the EU’s high court, came in the case of Polish Judge Waldemar Zurek, a critic of judicial reforms the nationalist Law and Justice party is imposing on Poland’s court system.
After the Law and Justice-controlled parliament began passing reforms, Zurek was among numerous Polish judges who opposed the changes and protested against them, accusing the government of seeking to destroy the independence of the judiciary.
In August 2018, Zurek was demoted by getting transferred to a lower chamber of the Regional Court of Krakow.
He challenged his demotion and his appeal ended up at the Chamber of Extraordinary Control and Public Affairs, a newly minted chamber inside the Supreme Court. His case was heard by a single judge, a man named Aleksander Stepkowski who was a former Law and Justice party minister who’d recently been appointed to the Supreme Court by Polish President Andrzej Duda, even though he had no past experience as a judge. Stepkowski promptly rejected Zurek’s appeal in March 2019, declaring it inadmissible even as his case was being reviewed in the Supreme Court’s civil chamber.
In the civil chamber proceedings, Zurek was arguing that the Chamber of Extraordinary Control and Public Affairs was an unlawful judicial chamber that should not be allowed to hear his appeal.
The Supreme Court’s civil chamber agreed that Stepkowski improperly dismissed his case, but it is asking for clarification on the matter from the European Court of Justice in Luxembourg. The Polish high court also is asking the Court of Justice to determine if Stepkowski should even be considered a judge due to the fact that he was appointed while legal challenges to his appointment by the president were taking place at another Polish court, the Supreme Administrative Court.
Zurek is asking the top EU court to declare that the judges on the Chamber of Extraordinary Control and Public Affairs should recuse themselves from hearing his case. He argues that the chamber’s establishment violated the Polish constitution because its members are appointed by the executive and therefore cannot be viewed as impartial and independent.
There’s a good chance the Court of Justice may declare that Stepkowski’s appointment was unlawful. The Luxembourg-based court has already struck down many of Poland’s controversial judicial reforms, though the government is accused of ignoring the rulings and finding ways around them.
In his legal advice, Tanchev sided with Zurek and the civil chamber of the Supreme Court. The magistrate noted that the Polish Supreme Court found “there was a flagrant and deliberate breach of Polish laws relating to judicial appointments.”
“To my mind the referring court [the Supreme Court] will be able to conclude that the act of appointment was adopted in deliberate breach of that order,” Tanchev wrote.
He said the violations were serious “given the general context of the contentious judicial reforms in Poland.”
Tanchev found the Chamber of Extraordinary Control and Public Affairs cannot be viewed as “an independent and impartial tribunal,” as stipulated by EU and European human rights law, because the way it was established gives “rise to legitimate doubts” about its independence from “external factors,” most significantly from political influence from parliament and the president.
In a 2019 interview in Gazeta Wyborcza, a Warsaw daily newspaper, Zurek described being harassed and slandered by state authorities.
He said Poland was beginning to resemble an authoritarian country such as Belarus and Russia where judges come under fierce attack. He described a “hater” campaign to humiliate judges opposed to the government’s reforms, and alleged judges were slandered on billboards paid for with public money.
Zurek noted that Polish Prime Minister Mateusz Morawiecki likened judges on the Krakow court to an “organized criminal group” and compared Polish judges “to the judges of the French Vichy,” who collaborated with Nazi Germany to exterminate Jews.
On a more personal level, during a parliamentary committee meeting a Polish politician accused Zurek of seeking to overthrow state authorities, he said. Eggs were thrown at his parents’ house, he received deaths threats and pro-government journalists tried to get his ex-wife and children to say bad things about him, he claimed. He said he was the victim of a suspicious incident in a court corridor when he was struck by someone operating a large cleaning machine.
Zurek said he’d been falsely accused of not paying alimony and received threats that he would suffer professionally unless he took the government’s side. After he was demoted inside his court, he was not even assigned a clerk, he said.
He described how he had his finances audited repeatedly by the Central Anticorruption Office and that officials even tracked down a man in the Bieszczady Mountains he’d sold an old tractor to in order to make sure the sale took place.
Courthouse News reporter Cain Burdeau is based in the European Union.