Barbara Piwnik: Recommending Judge Żurek will exacerbate divisions in the community

How do you assess the recommendation of Judge Waldemar Żurek for the position of Minister of Justice?

Barbara Piwnik: Hmm... I'm struggling to find the right words to answer this question. That's because the situation in the justice system, to put it mildly, isn't good. Fundamental issues that are important to citizens haven't been resolved. The long-awaited separation of the roles of Minister of Justice and Prosecutor General hasn't been implemented, and the latter role carries enormous expectations. Indeed, when I took office, I also served as Prosecutor General, but I was a criminal judge. Waldemar Żurek, on the other hand, is a civil servant, so I think the challenges associated with fulfilling this role will be so numerous that it's hard to even imagine them today.

The judge's actions over the past few years, his various public statements, have been significant, with their confrontational tone. We are at a point where we need a calm, substantive discussion focused on the most important issues – not from the perspective of judges, but of citizens – namely, order and legal security. I'm afraid there won't be a chance for that in the near future.

Three weeks ago, the Supreme Court's first president enigmatically announced she would present a plan to resolve this impasse. The idea, she asserts, is based on a proposal put forward by some of the so-called senior Supreme Court judges and is intended to be an attempt at a conciliatory solution. Meanwhile, it turns out, the partner in these talks will be the minister, known for his uncompromising approach and tough stance towards the so-called new judges.

Exactly, but what does "hard line" mean? A judge is bound by a set of ethical principles for practicing their profession. It contains a number of profound, wise thoughts regulating how a judge should function. Generally speaking, they imply that a judge is allowed less. I encourage you to read these principles and analyze the statements of judges, including the judge who will become Minister of Justice. A judge's behavior must not create even the appearance of disrespect for the law. Furthermore, a judge should care for the authority of their office, the good of the court in which they work, the good of the justice system, and the constitutional position of the judiciary. In other words, they should exercise restraint, avoiding behavior that could bring disrepute to the judge's dignity or undermine trust in their impartiality. The internet forgets nothing. Therefore, this dividing of judges, all these announcements of some kind of reckoning, which are not supported by the adopted, already applicable law, is not what I expect from a judge who is changing his professional position and will assume the office of Minister of Justice.

And what do you expect?

Actions that would calm the situation and resolve the problems within the framework of applicable law. Since no statutory changes have yet been passed that would allow for a clear resolution of the status of judges appointed on the recommendation of the National Council of the Judiciary after 2018, this does not change the fact that the problem must be resolved within the framework of the law, not based on personal preferences or lack thereof. Or on any negative experiences and emotions from previous years. This cannot be allowed. And that is why I fear what the reality of the coming weeks will be.

Now, upon assuming the position of Minister of Justice and Prosecutor General, Judge Waldemar Żurek will be required to resign from his judicial office. Consequently, the rules of judicial ethics will no longer apply to him, and, as we know, politicians have more freedom.

It is true that the judge will have to resign from office, but do you know what issue this will entail in the future?

Does this mean that his possible return to his previously held position depends on the consent of the National Council of the Judiciary and requires reappointment by the president?

Exactly. And it's not like such a request for reappointment is automatically approved by the National Council of the Judiciary. The President can also, yes, reappoint him, but he will still have to meet the requirements for serving as a judge. Therefore, the actions he will take as minister, let's call them radical, may even gain applause. However, if they are questioned under applicable law, they could, at some point in the future, stand in the way of his return to adjudication.

So it could be a one-way ticket?

Perhaps, although everything will depend on the confluence of various circumstances and interests, and, of course, how the candidate for Minister of Justice will perform his role. Once he's appointed, because for now we're still only talking about a recommendation. This candidacy will soon spark a heated debate within the judicial community, if it hasn't already. Unfortunately, the judge, now a candidate for minister, has clearly expressed his sympathies, or lack thereof, in the past. We all remember, for example, the notification to the prosecutor's office in which Judge Żurek accused the so-called neo-judges of impersonating a Supreme Court judge and exceeding their authority. Unfortunately, it's no secret that there are significant divisions within the community, and it may turn out that recommending Waldemar Żurek not only won't calm the situation but will actually exacerbate the hostility among judges toward each other.

This is very bad, because it is truly in the interest of all of us, the citizens, that the judiciary be separate and in balance with the other branches of government. It cannot take over the role of the legislative branch, demanding the adoption of bills prepared by judicial associations, etc., because that is not the role of the judiciary. Courts must guarantee independence and impartiality; citizens must be certain that they are adjudicated by people who possess all the qualities necessary to hold the office of judge. And the other two branches of government cannot influence the judiciary.

Do you think that the adoption of a new act on the National Council of the Judiciary is a condition for improving the situation in the justice system?

This is a topic for a separate discussion. The situation is complicated. On the one hand, the constitutionality of this body is being questioned, and on the other, the politicians who serve on it somehow legitimize it. As a result, the average person no longer truly understands what this is all about. However, I don't share the view that the National Council of the Judiciary needs to be repaired first, because in my opinion, we should start by regulating the status of so-called new judges.

After all, whatever method we choose for electing the judicial members of this body—whether judges themselves elect them in general elections, or judicial groups recommend individual candidates from whom the Sejm would then make the selection—it must first be clear who is and who is not a judge. This implies the question of who has the right to elect and be elected. Unless we regulate the situation of judges, it will be impossible to create a good law on the National Council of the Judiciary, one that is acceptable to all parties.

Let's start by settling once and for all what's causing the divisions, and then move on. But I don't see things moving in that direction. Too bad.