Case Summary and Outcome

The European Court of Human Rights found that measures taken against a Polish judge who had spoken out about judicial reform were an infringement of his right to freedom of expression. After making statements in his professional capacity on controversial reforms in Poland, the judge had been removed from various positions, faced disciplinary hearings, and was subjected to financial audit and performance reviews. The Court did not address whether the measures taken against the judge served a “legitimate aim”, focusing primarily on whether they were “necessary in a democratic society”. In finding that there had been a violation, the Court highlighted the public importance of the issues on which the judge spoke, and the need to protect the judiciary against measures that could impact on its independence.

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Facts

On January 15, 2018, Waldemar Żurek, a judge at the Regional Court in Krakow, Poland was informed by the President of the Kracow Regional Court (newly appointed by the Minister of Justice) that she had dismissed him from the position of spokesperson of the court. She noted that a favorable opinion on that matter of the Board (Kolegium) of the Kracow Regional Court had been obtained. This action was the latest of a series of measures taken against Żurek, who had become “one of the main critics of the changes concerning the judiciary initiated by the government”. [para. 40]

Żurek had been actively involved in the Polish judges’ associations “Iustitia” and “Themis” and was twice elected a member of the National Council of the Judiciary (“the NCJ”), the body established under Article 186(1) of the Constitution to ensure the independence of courts and judges. The NCJ is responsible for evaluating and nominating candidates for judicial office, which the President of Poland then appoints. Throughout his career, Żurek served as a spokesperson for the Cracow Regional Court, the “Iustitia” Association and, finally, the NCJ.

Following the election victory of the Law and Justice party in 2015, Żurek actively participated in the public debate on judicial reform: he had “commented in various fora on the government’s legislative proposals regarding the Constitutional Court, the NCJ, the Supreme Court and the ordinary courts [and] [i]n his capacity as the NCJ’s spokesperson, he pointed to threats to the rule of law and judicial independence stemming from the Government’s proposals” [para. 40] Zurek was publicly perceived as one of the most important voices of a judiciary, but his actions were portrayed by the ruling camp and its supporters as political activities not permitted for a judge.

On 2 March 2014, Żurek had been elected for the second time as a member of the NCJ for a four-year term, and a few days later he was appointed as the NCJ’s spokesperson. In his professional capacity, he took part in the public debate on the law, which intensified after the parliamentary elections won by the Law and Justice Party in 2015, focusing on changes in the Constitutional Tribunal, the Supreme Court, the NCJ or the ordinary courts. The reform of the NCJ, which was introduced by the Act of 8 December 2017, transferred the power to elect judicial members of the NCJ to the Sejm (lower house of parliament). Between 2015 and 2018 – when his membership of the NCJ was terminated – Żurek made a series of public statements on the government’s proposed judicial reforms. This included an article on the internet portal, dziennik.pl, called “Is this about taking over the Supreme Court?” and a statement in an interview with the same portal where Żurek said that “[t]he authorities are using the problems of the judiciary as a pretext to dismantle the justice system”. [para. 42-43] Żurek also spoke on the NCJ’s official YouTube channel, including saying “I would like to tell you about several fundamental flaws of these bills, which in the opinion of the NCJ are contrary to the Constitution.” [para. 44]

The government took various actions against Żurek, which appeared to be motivated by his criticism of the judicial reform programme.

Żurek, his pregnant wife, his elderly parents and his accountant were subjected to an audit of his financial declarations by the CBA (Centralne Biuro Antykorupcyjne – Central Anti-Corruption Bureau). The CBA was authorized by the Warsaw Regional Court to obtain information and data concerning Żurek and his wife from nearly 300 banks and financial institutions in Poland, and the CBA had questioned the man who had bought a tractor from him many years earlier and investigated a purchase of land that had taken place twenty-two years prior to the audit. The CBA prepared the audit report, but Żurek had never been informed about any subsequent investigation by a prosecutor. The Polish Government maintained that Żurek’s audit had been preceded by a systematic examination of the financial declarations of judges, which identified a group of judges for further investigation on the grounds of irregularities, and that it was of a routine nature. Żurek believed that the authorities had taken an interest in him because of his involvement in commenting on the ruling camp’s judicial reform, and that they had failed to provide him with the proper information on the reasons for the audit.

On April 28, 2017, the Minister of Justice received an anonymous letter which stated, “[a]s a taxpayer I would like to know how much time Judge Żurek spends in court on substantive work and adjudication, and how much time he spends doing politics” and suggested that it could be Judge Żurek’s assistants who write reasons for his judgments. [para. 70] A day later, the Ministry sent an enquiry to the Vice-President of the Cracow Court of Appeal on whether there were irregularities in Żurek’s work. On May 11, the President of the Kracow Court of Appeal announced that “there were no alleged irregularities in the performance of judicial duties by Judge Waldemar Żurek in the Cracow Regional Court”, and expressed surprise that the inspection in question had been triggered by an anonymous letter whose allegations had not been substantiated. [para. 73] Subsequent correspondence also revealed that a legal assistant had been assigned to assist Żurek.

On May 17, 2018, Żurek requested that his financial declaration be given confidential status by the President of the Kracow Court of Appeal, which would prevent its publication on the Internet. Żurek’s request was motivated by concerns about his family’s safety in view of threats received by email and telephone. Initially, the President of the Kracow Court of Appeal granted this request but on June 16, this decision was reversed by the Minister of Justice without giving any reasons. As this decision could not be overturned in any way, the financial declaration was eventually made unclassified. The Government stressed that the aim of requiring judges to submit a financial declaration was to comply with the guidelines of the Group of States against Corruption of the Council of Europe (GRECO) and to strengthen public confidence in the courts and judges and that it could not be described as a “sanction” specifically directed at Żurek. [para. 178]

Żurek had been the subject of at least five sets of disciplinary proceedings related to the disciplinary offence of undermining the dignity of the office of judge. These related to charges that he had refused to perform judicial duties in the period from September 1 to October 15, 2018 in the I Civil Division (to which he had been transferred against his will by the new President of the Kracow Regional Court); the alleged political manifesto in an interview with the press on October 21, 2019, which was related to changes being made in the judiciary; and Żurek’s challenge to the validity of the appointment of a certain person to the post of judge of the Supreme Court and the questioning of that person’s status as acting First President of the Supreme Court. Two disciplinary charges for alleged irregularities in tax matters were also brought, seemingly as a result of the CBA audit.

In January 2018, the new spokesperson published the news that Żurek had been dismissed as Court spokesperson, based on the opinion received from the Board (Kolegium) of the Kracow Regional Court. As a result, on January 22, the Board sought a meeting with the President of the Court – to which she did not respond. On January 29, 2018, six out of eight members of the Board resigned, and a day later issued a statement claiming that it was not appropriate to state that the Board had given a favorable opinion in Żurek’s matter. On February 26, 2018, the Assembly of Judges of the Kracow Regional Court adopted a resolution expressing general support for Żurek in the context of the repression to which he has been subjected by the authorities.

Żurek approached the European Court of Human Rights. He argued that “he had not had access to a court for the determination of his civil rights in accordance with Article 6” of the European Convention, that he had been deprived of an effective domestic remedy in terms of Article 13, and that his right to freedom of expression under Article 10 had been infringed by the action taken against him.

Article 10 states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

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Decision Overview

The First Section of the European Court of Human Rights delivered a majority decision. Judge Krzysztof Wojtyczek delivered a partly dissenting judgment. The central issue for the Court’s determination was whether the actions taken against Żurek’s were an unjustifiable limitation of his right to freedom of expression.

Żurek argued that the “timing and accumulation of the measures” against him were designed to intimidate him. [para. 163]. He emphasized the broader context of the rule of law crisis in Poland, and highlighted that the measures were intended to have a “chilling effect” on him and other judges. He argued that the interferences in his right to freedom of expression did not meet any of the requirements of Article 10(2) (“prescribed by law”, “necessary in a democratic society” and “legitimate aim”).

The Polish Government argued that the measures did not constitute an interference with freedom of expression under Article 10. It noted that Żurek had continued to participate in the public debate on judicial reform in Poland, and that his dismissal from his post as spokesperson for the Kracow Regional Court would, at most, restrict his ability to represent that institution in public.

The Commissioner for Human Rights of the Republic of Poland, the Judges’ Association Themis, the Helsinki Foundation for Human Rights, Amnesty International and the International Commission of Jurists, Judges for Judges Foundation and Professor L. Pech and Polish Judges’ Association Iustitia made submissions which drew attention to the importance of the context of Poland’s constitutional crisis.

The Court acknowledged that Article 10 does apply to civil servants, and that it has previously held that, in cases involving disciplinary proceedings against judges or their removal or appointment, it must determine whether the measure constitutes an interference with the exercise of freedom of expression, or whether it merely affects the exercise of the right to hold a public post in the administration of justice. Article 10 only applies if the right to freedom of expression has been infringed, and not if the ability to perform their duties is affected. This can only be determined by analyzing the scope of the measure in the context of the facts of the case and the relevant legislation, including reasons given by the authorities, the arguments put forward in the context of subsequent appeal proceedings and the submissions of the parties. The Court stressed the importance of prima facie evidence supporting the version of events submitted by an applicant which may indicate the existence of a causal link between the measures complained of and freedom of expression as this would be sufficient to conclude that the State must then prove that the measures were taken for other reasons.

The Court found that the disciplinary processes and Żurek’s dismissal from the post as NCJ spokesperson were not relevant, and only considered the CBA audit of his financial statements, the inspection of his work by the Ministry of Justice, his dismissal as spokesperson of the Kracow Regional Court and the declassification of the his financial declaration.

The Court held that there was prima facie evidence of a causal link between Żurek’s exercise of his freedom of expression and the measures taken by the authorities. It referred to its case of Grzęda v. Poland in drawing attention to the situation in Poland where successive judicial reforms had been aimed at weakening the independence of the judiciary.

The Court noted that all the relevant measures taken against Żurek’s followed his statements concerning the reform of judiciary in Poland, and were taken by authorities controlled or appointed by the executive. It noted that the measures – particularly the audit and inspection of his work – did not seem to have been the result of any specific irregularity on Żurek’s part. The Court recognized that there were documents from various institutions that referred to the widespread perception that a causal link in question existed, and found the Government’s position unconvincing.

Accordingly, the Court held that the contested measures constituted an interference with Żurek’s right to freedom of expression.

The Court accepted that the measures taken against Żurek were generally provided for by Polish law – except for his dismissal from his post as spokesperson of the Kracow Regional Court. However, the Court assumed that this measure was also “prescribed by law” because of the violation of Article 10 for other reasons.

The Court had “serious doubts” as to whether the interference complained of pursued any of the legitimate aims provided for in Article 10(2). [para. 216] However, as the case could be determined with reference to whether the measures were “necessary in a democratic society”, the Court did not find it necessary to reach a final conclusion on this specific question.

The Court referred to its case of Baka v. Hungary in highlighting the importance of the judiciary in a democratic state and that, notwithstanding the undeniable limitations on judicial expression, matters concerning the judiciary’s operation are of public interest and that these debates are generally afforded a high degree of protection under Article 10. It noted that the mere fact that a matter under discussion has political implications should not prevent a judge from expressing an opinion on it, and that the fear of sanctions could negatively impact the exercise of freedom of expression by others, in particular other judges wishing to participate in the public debate on issues related to the judiciary.

Applying these principles to the context of the present case, the Court emphasized Żurek’s position and noted that he had expressed his views on the legislative reforms in question in his professional capacity as a judicial member of the NCJ and as the spokesperson of that body, which is constitutionally mandated to safeguard the independence of the courts and judges. This meant that Żurek had the right and the duty to express his views on the legislative reform affecting the judiciary. The Court noted that “a similar approach would be applicable to any judge who exercises his freedom of expression … with a view to defending the rule of law, judicial independence or other similar values falling within the debate on issues of general interest” [para. 222] It added that “[w]hen a judge makes such statements not only in his or her personal capacity, but also on behalf of a judicial council, judicial association or other representative body of the judiciary, the protection afforded to that judge will be heightened”. [para. 222]

With reference to the Consultative Council of European Judge’s Opinion No. 18 (2015), on the position of the judiciary and its relation with the other powers of state in a modern democracy, the 2019 report of the UN Special Rapporteur on the independence of judges and lawyers and the European Networks of Councils for the Judiciary’s General Assembly’s 2013 Sofia Declaration, the Court held 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”. [para. 222] The Court highlighted the difference between the present case and other cases concerning public confidence in the judiciary and the need to protect that confidence from destructive attacks in which members of the judiciary criticize their own structure and mentioned its cases of Di Giovanni v. Italy and Kudeshkina v. Russia. The Court stressed that, in the present case, Żurek had raised issues of public interest and expressed criticism from a strictly professional perspective, which led to the conclusion that his freedom of expression is highly protected and that the margin of appreciation is narrow. The Court also stated that it “must be particularly attentive to the protection of members of the judiciary against measures that can threaten their judicial independence and autonomy”. [para. 224]

Accordingly, the Court held that the impugned measures were not “necessary in a democratic society”, and characterized them as “a strategy aimed at intimidating (or even silencing) [Żurek] in connection with the views that he had expressed in defence of the rule of law and judicial independence.” [para. 227] There had, therefore, been a violation of Article 10 of the Convention.

In his partly dissenting, partly concurring opinion, Judge Wojtyczek agreed that Article 10 had been violated. However he disagreed with the majority on four points: “(i) the scope of applicability of Article 10, (ii) the precise nature of the interference with the applicant’s freedom of expression, (iii) the way the reasoning articulates the questions of legitimate aim and proportionality, as well as (iv) the differentiation of protection under Article 10 for different categories of persons and views”. [para. 3] Judge Wojtyczek rejected the conclusion that Article 10 applies to the official speech of public officials on the grounds that it is supposed to apply to utterances expressing the personal views of individuals. Wojtyczek felt that the majority’s merging of these two issues led to contradictory results, and noted that Żurek “could either express his personal views (while speaking in his private capacity) or – when speaking in his professional capacity as spokesperson of the NCJ – had the obligation to present not his views but the position of this State organ on the legislative reforms in issue”. [para. 3.1] Wojtyczek drew attention to what he described as the majority’s inconsistency in sometimes considering that Żurek was exercising his freedom of expression, while at other times emphasizing his duty to speak out on certain issues and express certain views.

Wojtyczek felt that the list of contested measures which interfered with Żurek’s freedom of speech should have been narrower, and would have excluded Żurek’s dismissal from his position as spokesperson of the Cracow Regional Court as “[r]evocation from the function of court spokesman is a discretionary power of the court president and, in my view, should not be seen as an element of the interference with the spokesman’s freedom of speech”. [para. 3.2] Wojtyczek would have held that it does not make sense to consider the question of whether the measures were “necessary in a democratic society” condition without first establishing that they actually pursue a legitimate aim. Wojtyczek disagreed with the majority’s reasoning which differentiated the level of protection for different categories of persons and according to the content of the speech, describing it as “problematic” and said that “Equality vis-à-vis freedom of speech is a fundamental Convention value”. [para. 3.4] Wojtyczek stated that the majority, “when addressing the key issue of causal link between speech and the impugned interference” had relied on the “the principle of formal truth” which could have been avoided had it addressed the issue under Article 8 (on the right to privacy) rather than Article 10.

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