(CN) — The political and legal battle between Poland's right-wing government and the European Union is entering a decisive phase after the bloc's top court declared, not for the first time, Wednesday that Poland is undermining the independence of its judiciary.
The European Court of Justice's ruling comes a day ahead of the potential declaration by Poland's Constitutional Tribunal that EU law is not superior to Polish law. Poland's constitutional court is set to resume hearings Thursday on the matter and a ruling against the primacy of EU law could spark a constitutional crisis for the bloc.
It is among Europe's most complicated and vexing problems that the ruling parties in Poland and in Hungary, Poland's ally, advocate a strong right-wing agenda based around religion, family and nationalism. They also oppose immigration from Islamic countries and notions of liberalism, such as the movement for LGBT rights and tackling climate change through drastic measures.
Within the EU, however, many accuse these governments of turning their countries into authoritarian and corrupt regimes whose actions, such as questionable judicial reforms, threaten the integrity and principles undergirding the EU. At the same time, Poland and Hungary are large and economically important nations that are key to the EU's expansionist goals. The former communist countries joined the bloc in 2004.
This political and legal clash has simmered and bubbled for years and may be reaching a new boiling point.
In recent months, some Polish politicians with the ruling ultranationalist Law and Justice party have begun to voice support for Poland's exit from the EU, a so-called “Polexit.” Such a dramatic move is highly unlikely, especially because polls show the overwhelming majority of Poles favor staying in the union. Similarly, Hungarian politicians are fanning the flames with talk of a “Huxit.”
The anti-EU rhetoric in both countries is a response to EU leaders in Brussels threatening to withhold billions of dollars in coronavirus-recovery funds unless Warsaw and Budapest abide by rulings from the Court of Justice and take other steps to stop so-called “democratic backsliding.” Additionally, the EU is seeking to impose hefty fines on Poland unless it adheres to EU court rulings.
In the past couple of years, the Luxembourg-based court has issued a series of rulings against judicial changes in Poland that the court argues undermine the judiciary's independence. The court has found Poland's government has unlawfully tried to stack courts with allies, improperly removed judges it doesn't like and set up unlawful disciplinary chambers.
Wednesday's ruling from the Court of Justice added more weight to its previous decisions against Poland.
The ruling came in a case brought by an outspoken Polish judge who accuses the government of harassing judges it doesn't like and trying to kick them off the bench.
Judge Waldemar Zurek was among numerous Polish judges who opposed the judicial 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 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 Court of Justice ruled in Zurek's favor Wednesday, saying the act of transferring him from one chamber to another inside the Krakow court without his consent could undermine “the principles of irremovability of judges and judicial independence.”
Moving judges without their consent, the ruling states, may “constitute a way of controlling the content of judicial decisions” and therefore can have the effect of “a disciplinary sanction.”
Safeguards must be put in place, the Grand Chamber recommended, to ensure the independence of judges is guaranteed when they are moved without their consent, for example to make up for a shortage of judges. The ruling says such involuntary transfers must “be open to challenge before the courts.”
The Court of Justice also found that Stepkowski's appointment to the Supreme Court “was made in clear disregard of the fundamental rules governing the appointment of judges at the Supreme Court.”
But the EU court left it up to Poland's Supreme Court to determine if Stepkowski's appointment was improper. The Supreme Court panel hearing Zurek's civil case against Stepkowski's ruling asked the EU court for a ruling in Zurek's case.
The EU court also ruled that if Stepkowski's appointment is found to have been unlawful, then his decision to reject Zurek's appeal should be “null and void.”
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, he said, a Polish politician accused Zurek during a parliamentary committee meeting of seeking to overthrow state authorities. 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.
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