Communicated on 14 May 2020 Published on 20 May 2020

FIRST SECTION

Application no. 39650/18 Waldemar ŻUREK against Poland lodged on 6 August 2018

STATEMENT OF FACTS

1 . The applicant, Mr Waldemar Żurek , is a Polish national, who was born in 1970 and lives in Rzeplin . He is represented before the Court by Mr M. Pietrzak and Ms M. Mączka-Pacholak , lawyers practising in Warsaw.

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . On an unspecified date the applicant was appointed as a district court judge in the Cracow-Śródmieście District Court. On 19 January 2005 he was appointed as a regional court judge in the Cracow Regional Court. The applicant was also appointed as the spokesperson of the Regional Court.

4 . In 2001 the applicant joined the Association of Polish Judges “ Iustitia ” and served on its board. Since 2010 the applicant has been a member of the Association of Judges “Themis” and its board.

5 . On 15 March 2010 the applicant was elected by the Representatives of the General Assemblies of the Regional Courts as a member of the National Council of the Judiciary (“the NCJ”) for a four-year term.

6 . On 2 March 2014 the applicant was elected again as a member of the NCJ for another four-year term. This term began on 21 March 2014 and was due to come to an end on 21 March 2018.

7 . On 6 March 2014 the applicant was appointed by the NCJ as its spokesperson. In this capacity, he frequently commented in the media on current issues concerning judges and the administration of justice.

8 . Starting in the autumn of 2015, after the parliamentary elections won by the Law and Justice party, public debate on matters concerning the functioning of the administration of justice intensified.

9 . In November 2015 the Government undertook a number of factual and legal measures regarding the Constitutional Court. These measures were criticised by various legal bodies. The NCJ adopted opinions critically assessing successive bills on the Constitutional Court. The applicant, in his capacity of the NCJ ’ s spokesperson, actively participated in public debate regarding the Constitutional Court.

10 . Subsequently, the applicant commented on the Government ’ s other legislative proposals in the area of administration of justice regarding the organisation of common courts, the NCJ and the Supreme Court. In his capacity of the NCJ ’ s spokesperson, the applicant pointed to threats to judicial independence stemming from the Government ’ s proposals. In the public debate, the applicant was, together with the First President of the Supreme Court and presidents of the two associations of judges (“Themis” and “ Iustitia ”), one of the main critics, representing the judges, of the changes concerning the judiciary initiated by the legislative and the executive branches of the Government.

11 . In the first half of 2017 a billboard campaign “Just courts” ( Sprawiedliwe sądy ), presenting examples of unethical or illegal activities of several judges, was carried out across the country. It turned out later that it was organised by a foundation controlled by the Government and financed from public funds. According to the applicant, this campaign was aimed at undermining trust in judges and preparing the public for the forthcoming changes in the functioning of the courts.

12 . In January 2017 the Government announced plans for a large-scale judicial reform regarding the NCJ, the Supreme Court and the common courts. The Minister of Justice explained that a comprehensive reform was needed in order to, inter alia , increase the efficiency of the administration of justice and render election of the NCJ members more democratic.

13 . The Government submitted to the Sejm (the lower house of the Polish parliament) a bill amending the Act on the NCJ. Two further bills on the Supreme Court and the Organisation of Common Courts were submitted by the deputies of the majority.

14 . The first bill amending the Act on the NCJ was assessed critically by the NCJ, the Supreme Administrative Court, the National Bar Association, the Ombudsman and the OSCE Office for Democratic Institutions and Human Rights in their respective opinions of 30 January, 31 January, 5 April, 12 April and 5 May 2017. The opinions stated that the proposed amendments violated the Constitution in that they allowed the legislature to gain control over the NCJ in contradiction with the principle of the separation of powers. The amendments would also result in the termination of the constitutionally prescribed four-year term of office of judicial members of the NCJ.

15 . In July 2017 the adoption of the three bills by parliament sparked large public protests. On 31 July 2017 the President of the Republic vetoed the bills amending the Act on the NCJ and the Supreme Court.

16 . The third bill, amending the Act on the Organisation of Common Courts was signed and entered into force on 12 August 2017 (“the 2017 Amending Act”). This law conferred on the Minister of Justice competence to dismiss and appoint at his discretion presidents of common courts during the period of six months following the law ’ s entry into force.

17 . On 26 September 2017 the President submitted to the Sejm his own bill amending the Act on the NCJ. This bill was assessed negatively by the National Bar Association, the Supreme Court, the NCJ, the Ombudsman and the National Council of Attorneys at Law in their respective opinions of 17 October, 23 October, 31 October and 12 November 2017. The bill was adopted by the Sejm and Senate (the upper house of the Polish parliament) on 8 and 15 December 2017 respectively. It was signed by the President on 20 December 2017 and entered into force on 17 January 2018.

18 . Pursuant to section 6 of the Act Amending the Act on the NCJ (“the 2017 Amending Act”), the terms of office of the judicial members of the NCJ elected on the basis of the previous Act would continue until the day preceding the beginning of the term of office of the new members of the NCJ.

19 . On 6 March 2018 the Sejm elected fifteen judges as new members of the NCJ. On the same date, pursuant to section 6 of the 2017 Amending Act, the applicant ’ s term of office as member of NCJ was ex lege prematurely terminated. In consequence, the applicant also ceased to act as the NCJ ’ s spokesperson. The applicant did not receive any official notification regarding the termination of his term of office.

20 . According to the applicant, the 2017 Amending Act did not provide any procedure, judicial or otherwise, with a view to contesting the premature termination of his term of office.

21 . On an unspecified date the Minister of Justice appointed a new president of the Cracow Regional Court on the basis of temporary powers under the 2017 Amending Act (see paragraph 16 above). On 15 January 2018 the new President of the Cracow Regional Court removed the applicant from his position of the spokesperson of that court. She stated that she had received a positive opinion of the board of the Regional Court in that regard. Following that decision, six members of the board of the court resigned from their functions in protest, claiming that the new President had not consulted the Board before making her decision on the applicant ’ s removal.

22 . The applicant submits that the security and tax authorities have become interested in him since his increased involvement, in his capacity of the NCJ ’ s spokesperson, in the debate concerning changes in the judiciary and related potential threats to the independence of the judiciary. According to him, it was not by accident that the authorities ’ actions coincided with the most intensive public debate on the judiciary and the applicant ’ s active involvement in it as the NCJ ’ s spokesperson.

23 . The applicant submits that, for example, the Central Anti ‑ corruption Bureau (“the CAB”), a service answerable to the government minister, initiated control of the applicant ’ s financial declarations. On 20 April 2017 the CAB officers entered the NCJ ’ s building and walked into a room interrupting the applicant ’ s meeting with other judges in order to serve on the applicant a decision authorising control of his financial declarations. According to the applicant, such action was aimed at drawing the attention of other judges to the supposed legal problems of the applicant. It was also a sort of demonstration (show), because in practice such decisions were sent by post. The President of the NCJ addressed letters to the Prime Minister and the Chairman of the Sejm Committee on Special Services requesting an explanation as to the appropriateness of the actions undertaken by the CBA officers. Those letters remained unanswered.

24 . At the same time the tax authorities began controlling the applicant ’ s tax returns, the CBA initiated control of the applicant ’ s wife ’ s financial declaration and the prosecution service questioned the applicant ’ s parents. The applicant was summoned to appear a few times before the prosecution service, answerable to the Minister of Justice – Prosecutor General, however he was not informed of his status in these proceedings.

25 . The applicant submits that the above-mentioned actions were aimed at making him reduce his activities in the media where he criticised the Government ’ s legislative proposals regarding the judiciary.

26 . On 17 May 2018 the applicant requested that the President of the Cracow Court of Appeal have his financial declaration, which was otherwise public, granted confidential status due to the applicant ’ s concerns for his and his family ’ s safety. On 24 May 2018 the President of the Court of Appeal allowed the applicant ’ s request. On 16 June 2018 the Minister of Justice, without providing any reasons, reversed the decision of the President of the Court of Appeal. The Minister ’ s decision was not amenable to any review.

27 . Relevant domestic law and practice as well as international materials are set out in the communicated case of Grz Ä™ da v. Poland , no. 43572/18.

COMPLAINTS

28 . The applicant complains under Article 6 § 1 of the Convention that he was denied access to a tribunal to contest the arbitrary and premature termination of his term of office as a member of the NCJ. He was elected a member of this body for a four-year term prescribed in Article 187 § 3 of the Constitution and had a right to retain his position for the duration of the term of office, that is until 21 March 2018. The applicant underlines that section 6 of the 2017 Amending Act was a provision of an individualised nature, enacted specifically to prematurely terminate terms of office of judicial members of the NCJ, and not an instrument for general application.

29 . The applicant complains under Article 13 of the Convention that he was deprived of any judicial or other procedure whereby he could contest the premature termination of his term of office as member of the NCJ.

30 . The applicant complains under Article 10 that his dismissal from the position of the NCJ ’ s spokesperson, being a consequence of the arbitrary and premature termination of his term of office as member of the NCJ, and the earlier dismissal from the position of the Cracow Regional Court ’ s spokesperson entailed a violation of his right to freedom of expression. The applicant underlines that his public statements on legislative changes concerning the judiciary and on attacks on judges carried out within the framework of the campaign “Just courts” were made in his capacity of the NCJ ’ s spokesperson. He maintains that a causal link existed between, on the one hand, his dismissal from the position of the NCJ ’ s spokesperson, combined with official and unofficial actions of the State security and tax authorities against him and, on the other hand, his public comments, critical of the legislative changes in the judiciary. The applicant claims that the authorities resorted to punitive measures against him in connection with his activities in the media. These measures were aimed at creating a chilling effect with regard to the applicant and other judges expressing criticism of the Government ’ s legislative changes.

QUESTION S TO THE PARTIES

With regard to Articles 6 § 1 and 13

1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case (cf. Baka v. Hungary [GC], no. 20261/12, §§ 100-118, 23 June 2016) ?

2. Did the applicant have a “civil right” within the meaning of Article 6 § 1 of the Convention?

3. If Article 6 § 1 of the Convention under its civil head was applicable to the present case, did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

4. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention in relation to the early termination of his mandate?

With regard to Article 10

1. Has there been an interference with the applicant ’ s freedom of expression, within the meaning of Article 10 § 1 of the Convention?

Reference is made to the decision of the President of the Cracow Regional Court removing the applicant from the position of the spokesperson of that court as well as to all measures taken, inter alia , by the CBA, the tax authorities, the prosecution service with regard to the applicant and his family members.

2. If so, was that interference prescribed by law and necessary in terms of Article 10 § 2? Which legitimate aims did that interference pursue?