CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 juin 2022

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margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .s8773B649 { width:25.2pt; display:inline-block } .sB81C5FD1 { width:141.42pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } FIRST SECTION CASE OF ŻUREK v. POLAND (Application no. 39650/18)   JUDGMENT   Art 6 § 1 (civil) • Access to court • Lack of judicial review of premature termination ex lege , after legislative reform, of a serving regional court judge’s mandate as member of the National Council of the Judiciary (NCJ) and its spokesperson • Findings in Grzęda v. Poland [GC] applied: Art 6 § 1 applicable and very essence of right of access to court impaired Art 10 • Freedom of expression • Measures taken against the applicant by the authorities for public statements made in his professional capacity as NCJ spokesperson concerning legislative reforms affecting the judiciary • Impugned measures to be seen in context of successive Polish reforms resulting in the weakening of judicial independence and having regard to the sequence of events in their entirety • General right to freedom of expression of judges to address matters as to the functioning of the justice system might be transformed into a corresponding duty to speak out in defence of the rule of law and judicial independence when those fundamental values are threatened • Criticism in context of debate of great public interest, not containing attacks against the judiciary • Statements calling for high degree of protection • Accumulation of measures could be characterised as a strategy aimed at intimidating (or even silencing) the applicant • Impugned measures with chilling effect on judges’ participation in public debate on legislative reforms affecting the judiciary and on its independence • Interference not “necessary in a democratic society”   STRASBOURG 16 June 2022 FINAL   10/10/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Żurek v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak, President,   Péter Paczolay,   Krzysztof Wojtyczek,   Erik Wennerström,   Raffaele Sabato,   Lorraine Schembri Orland,   Ioannis Ktistakis, judges, and Renata Degener, Section Registrar, Having regard to: the application (no.   39650/18) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Waldemar Żurek (“the applicant”), on 6 August 2018; the decision to give notice to the Polish Government (“the Government”) of the complaints under Article 6 § 1, Article 10 and Article 13; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the European Network of Councils for the Judiciary (“the ENCJ”), the Commissioner for Human Rights of the Republic of Poland, Amnesty International jointly with the International Commission of Jurists, the “Judges for Judges” Foundation (the Netherlands) jointly with Professor L. Pech, the Helsinki Foundation for Human Rights (Poland), the Judges’ Association Themis and the Polish Judges’ Association Iustitia, all having been granted leave to intervene by the President of the Section; the Chamber’s decision not to hold a hearing in the case; Having deliberated in private on 10 May 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant alleged that he had been denied access to a court to contest the premature and allegedly arbitrary termination of his term of office as a judicial member of the National Council of the Judiciary. He also complained of the measures taken by the authorities in connection with the views that he had expressed publicly in his professional capacity concerning legislative reforms affecting the judiciary. He relied on Article 6 §   1, Article   10 and Article 13 of the Convention. THE FACTS 2.     The applicant was born in 1970 and lives in Rzeplin. He was represented by Mr M. Pietrzak and Ms M. Mączka-Pacholak, lawyers practising in Warsaw. 3.     The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs. 4.     The facts of the case may be summarised as follows. Background and context of the case 5.     The broader domestic background to the present case was set out in the Grand Chamber judgment in the case of Grzęda v. Poland ([GC], no.   43572/18, §§ 14-28, 15 March 2022). Termination of the applicant’s term of office as a judicial member of the NCJ 6.     In 1997 the applicant passed a judicial exam and was subsequently appointed as judge of the Cracow-Śródmieście District Court. On 19 January 2005 he was appointed as judge of the Cracow Regional Court. The applicant was also selected to be the spokesperson of the Regional Court. 7.     In 2001 the applicant joined the Polish Judges’ Association Iustitia. For   some time, he served on its board and acted as its spokesperson. Since 2010 the applicant has been a member of the Judges’ Association Themis. 8.     On 15 March 2010 the applicant was elected by the Representatives of the General Assemblies of the Regional Court judges as a member of the National Council of the Judiciary ( Krajowa Rada Sądownictwa – “the NCJ”) for a four-year term. On 21 March 2010 he took up his duties in the NCJ. 9.     The NCJ is a constitutional organ tasked with safeguarding the independence of courts and judges (see Article 186 § 1 of the Constitution). One of its principal functions is to evaluate and nominate candidates for appointment to judicial office for every level and type of court. The   candidates proposed by the NCJ are submitted to the President of the Republic for appointment. The NCJ’s composition is prescribed in Article   187 § 1 of the Constitution. 10.     On 2 March 2014 the applicant was again elected 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. 11.     On 6 March 2014 the applicant was appointed by the NCJ as its spokesperson. In this capacity, he frequently commented in the media on topical issues concerning the judiciary and participated in numerous debates on legal matters in various media. The applicant took an active part in legislative work and participated in meetings of parliamentary committees, mainly the Justice and Human Rights Committee of the Sejm (the lower house of the Polish Parliament). 12.     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. 13.     In November 2015 the government took a number of factual and legal measures in respect of the Constitutional Court. In December 2015 the Sejm   elected three judges of the Constitutional Court (M.M., L.M. and H.C.) to seats that had been already filled (for a detailed account of the relevant facts, see Xero Flor w Polsce sp. z o.o. v. Poland , no. 4907/18, §§ 4-63, 7   May 2021). These measures were criticised by various legal bodies and institutions. The NCJ adopted opinions critically assessing successive bills on the Constitutional Court. The applicant, in his capacity as the NCJ’s spokesperson, actively participated in the public debate regarding the Constitutional Court. 14.     In January 2017 the Government announced plans for a large-scale judicial reform of the NCJ, the Supreme Court and the ordinary 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 make the election of NCJ members more democratic. 15.     In the first half of 2017 a billboard campaign “Just courts” ( Sprawiedliwe sądy ), presenting examples of alleged unethical or illegal activities of several judges, was launched 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. 16.     On 14 March 2017 the Government introduced in the Sejm a bill, drafted by the Ministry of Justice, to amend the Act of 12 May 2011 on the National Council of the Judiciary ( ustawa z 12 maja 2011 r. o   Krajowej Radzie Sądownictwa ; “the 2011 Act on the NCJ”). The bill proposed that the judicial members of the NCJ would be elected by the Sejm instead of by judicial assemblies and that the term of office of the sitting judicial members would be terminated. Two further bills concerning the Supreme Court and the Organisation of Ordinary Courts were introduced by deputies from the majority. 17.     The bill amending the Act on the NCJ was critically assessed by the NCJ, the Supreme Administrative Court, the National Bar Association, the Commissioner for Human Rights and the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Cooperation in Europe (OSCE), in their respective opinions of 30 and 31   January, 5 and 12 April and 5 May 2017. The opinions stated that the proposed amendments violated the Constitution in that they allowed the legislature to take control of the NCJ in contradiction with the principle of the separation of powers. According to the same opinions, the amendments would also result in the unconstitutional termination of the constitutionally prescribed four-year term of office of the judicial members of the NCJ. 18.     On 11 April 2017 the Prosecutor General, who is at the same time the Minister of Justice, according to the Act on the Public Prosecutor’s Office of 28   January 2016, which merged these two offices, lodged an application with the Constitutional Court, challenging the constitutionality of certain provisions of the 2011 Act on the NCJ. The Prosecutor General alleged that as regards the election of judges to the NCJ the impugned provisions treated different groups of judges unequally depending on the level of jurisdiction, resulting in unequal representation of judges on the NCJ. He further challenged the provisions regulating the term of office of the elected judicial members of the NCJ, claiming that to treat their terms of office as individual in nature was contrary to the Constitution. 19.     The Constitutional Court gave judgment on 20 June 2017 (no.   K   5/17), its bench being composed of Judges M.W., G.J., L.M., M.M. (the rapporteur) and J.P. 20.     In its general observations, the Constitutional Court noted that the NCJ was a constitutional body tasked with protecting the independence of courts and judges. It also noted that the NCJ was not a judicial authority, and thus the constitutional standards relevant for courts and tribunals were not applicable to the NCJ. Nor should the NCJ be regarded as part of judicial self ‑ governance. The hybrid composition of the Council made it an organ which ensured a balance and cooperation between the different powers of government. 21.     The Constitutional Court held that the provisions governing the procedure for electing members of the NCJ from among judges of the ordinary courts and of administrative courts [1] were incompatible with Article   187 § 1 (2) and § 4 in conjunction with Article 32 of the Constitution. The impugned provisions introduced an unjustified differentiation with regard to the election of judges to the NCJ from the respective levels of the ordinary and administrative courts and did not provide equal opportunities to stand for election to the NCJ. The Constitutional Court found that the impugned provisions treated unequally judges of district and regional courts in comparison with judges of courts of appeal, as well as judges of district courts in comparison with judges of the regional courts. The same was true for judges of the regional administrative courts in comparison with judges of the Supreme Administrative Court. 22.     Secondly, the Constitutional Court held that section 13(3) of the 2011 Act on the NCJ, interpreted in the sense that the term of office of members of the NCJ elected from among judges of ordinary courts was individual in character, was incompatible with Article 187 § 3 of the Constitution. It noted that there had been an established interpretation by the NCJ that the term of office of judges elected as members of the NCJ was to be individually calculated for each of those members. However, the Constitutional Court disagreed with that interpretation on the ground that it was contrary to the linguistic, systemic and functional interpretation of Article 187 § 3 of the Constitution. It noted that that provision used the phrase “term of office” in the singular and related it to the phrase “elected members of the NCJ” in the plural. Accordingly, this meant that all elected members of the NCJ had a concurrent or joint term of office and this applied equally to judges, deputies and senators. To individualise the term of office for judicial members of the NCJ would result in an unjustified differentiation in status between judicial members on the one hand, and deputies and senators, on the other, all being categories of elected member of the Council. The Constitutional Court found that the correct interpretation of Article 187 § 3 of the Constitution required that the term of office of all elected members of the NCJ be of a joint character. 23.     With regard to the election of judicial members of the NCJ, the Constitutional Court held, in so far as relevant: “The Constitutional Court in the current composition does not agree with the [Constitutional Court’s] position adopted in the judgment [of 18 July 2007,] no. K 25/07 that the Constitution specifies that [judicial] members of the NCJ shall be elected by judges. Article 187 § 1 (2) of the Constitution only stipulates that these persons [judicial   members of the NCJ] are elected from among judges. The Constitution did not specify who should elect those judges. Thus, it follows from the Constitution who can be elected as a member of the NCJ, but it is not specified how to elect judicial members of the Council. These matters were delegated to statutory regulation. There is no obstacle to the election of judges to the NCJ by judges. However, one cannot agree with the assertion that the right to elect [judicial members of the NCJ] is vested solely with assemblies of judges. While Article 187 § 1 (3) of the Constitution clearly indicates that deputies are elected to the NCJ by the Sejm and senators by the Senate, there are no constitutional guidelines in respect of judicial members of the NCJ. This means that the Constitution does not determine who may elect judges to the NCJ. For this reason, it should be noted that this question may be differently regulated within the limits of legislative discretion.” 24.     The Constitutional Court noted with regard to the principle of tenure that an elected judicial member of the NCJ was legally protected from removal; however, that protection was not absolute. It agreed with the position previously expressed by the Constitutional Court (judgment of 18   July 2007, no. K 25/07) that a breach of tenure could only be justified by extraordinary, constitutionally valid reasons. The Constitutional Court found that the Constitution did not lay down the principle of tenure for the NCJ. The fact that the majority of the NCJ’s members were elected for a four-year term of office did not result in the Council being a tenured body. The tenure was linked not with the body as such, but with certain categories of members composing it. However, the Constitutional Court noted that the guarantee of a four-year tenure for elected members of the NCJ was not absolute. The   Constitution, having regard to Article 187 § 4 thereof, allowed statutory exceptions to the four-year tenure. 25.     In July 2017 the enactment by Parliament of the three bills referred to above (see paragraph 16 above) sparked widespread public protests. On   31   July 2017 the President of the Republic vetoed the Act amending the Act on the NCJ and the Act on the Supreme Court. The Act of 12 July 2017 amending the Act on the Organisation of Ordinary Courts was signed and entered into force. This law conferred on the Minister of Justice competence to dismiss and appoint at his discretion presidents and vice-presidents of ordinary courts during the period of six months following the law’s entry into force. 26.     On 26 September 2017 the President of the Republic introduced in the Sejm his own bill amending the Act on the NCJ. 27.     In the explanatory report it was noted that the bill granted the public, as well as judges, the right to nominate candidates to sit on the Council. The   bill referred to the finding made in the Constitutional Court’s judgment of 20   June 2017 (no. K 5/17) that the issue of how judicial members of the NCJ were to be elected was left to statutory regulation. In accordance with the bill, the final election from among the nominated candidates was to be carried out by the Sejm by a qualified majority of three-fifths of the votes. If   election by qualified majority proved impossible, a supplementary election by means of a roll-call vote was to be carried out. 28.     One of the aims of the bill was to depart from the principle whereby the members of the Council selected from among judges had individual terms of office. The explanatory report noted that the Constitutional Court had found this approach (individual terms) to be contrary to the Polish Constitution in the judgment of 20 June 2017, no. K 5/17. The bill provided that the judicial members of the NCJ were to be elected for a joint term of office. It further proposed that the terms of office of the NCJ’s judicial members elected under the previous provisions be terminated. This was considered by the President to be proportionate to the systemic changes being pursued. The explanatory report noted that the major changes to the method for electing members of the NCJ were an expression of the “democratisation” of the election process and constituted a development of the principle of the rule of law. This “democratisation” was an important public interest and justified shortening the term of office of the NCJ members currently serving. 29.     The President’s bill was assessed negatively by the National Bar Association, the Supreme Court, the NCJ, the Commissioner for Human Rights and the National Council of Attorneys at Law in their respective opinions of 17, 23, 31 October and 12 November 2017. 30.     The Act of 8 December 2017 Amending the Act on the National Council of the Judiciary ( ustawa z dnia 8 grudnia 2017 o zmianie ustawy o   Krajowej Radzie Sądownictwa oraz niektórych innych ustaw – “the 2017 Amending Act”) was enacted by the Sejm and the Senate (the upper house of Parliament) on 8 and 15   December 2017 respectively. It was signed by the President of the Republic on 20 December 2017 and entered into force on 17   January 2018. 31.     The 2017 Amending Act transferred to the Sejm the competence to elect judicial members of the NCJ (section 9a(1)). It provided in section 9a(3) that the joint term of office of new members of the NCJ was to begin on the day following that of their election. Section 6 of the 2017 Amending Act provided that the terms of office of the judicial members of the NCJ elected on the basis of the previous provisions would continue until the day preceding the beginning of the term of office of the new members of the NCJ. 32.     Eighteen judges, out of about ten thousand, decided to stand for election to the new NCJ. None of the sitting members decided to stand. A   candidate for election to the new NCJ had to be supported either by a group of 2,000 citizens or by 25 fellow judges. 33.     On 6 March 2018 the Sejm elected, in a single vote, fifteen judges as new members of the NCJ by a three-fifths majority. On the same date, the applicant’s term of office as member of the NCJ was terminated ex lege pursuant to section 6 of the 2017 Amending Act. As a result of that measure the applicant ceased to act as the NCJ’s spokesperson. 34.     Thirteen of the new judicial members of the NCJ were district court judges (first level of the ordinary courts), one was a regional court judge (second level of the ordinary courts) and one was a regional administrative court judge. There were no representatives of the courts of appeal, the Supreme Court or the military courts. 35.     The applicant remains in office as a judge of the Cracow Regional Court. 36.     On 17 September 2018 the General Assembly of the European Network of Councils for the Judiciary (“the ENCJ”) suspended the NCJ’s membership of the Network. The decision was motivated by the General Assembly’s view that the new NCJ was no longer independent from the legislative and executive powers. On 28 October 2021 the General Assembly of the ENCJ expelled the NCJ from the Network. 37.     On 2 November 2018 the NCJ, in its new composition, lodged an application with the Constitutional Court challenging several provisions of the 2011 Act on the NCJ (as amended in December 2017), inter alia , section   9a governing the new manner of electing the judicial members of the Council and the nature of their term of office. On 14 February 2019 a group of senators lodged an identical application. The Constitutional Court decided to examine the two applications jointly as case no. K 12/18. The   Commissioner for Human Rights requested that the Constitutional Court discontinue the proceedings as inadmissible since the new NCJ was seeking to confirm the constitutionality of the law. 38.     On 25 March 2019 the Constitutional Court gave judgment in the case. The bench was composed of Judges J.P. (the president), G.J., Z.J., J.Pi. (the   rapporteur) and A.Z. Judge J.Pi. had been elected as judge of the Constitutional Court following the death of Judge L.M., one of the judges elected in December 2015 to a seat that had already been filled. The judgment was given after hearings held in camera on 14 and 25 March 2019. 39.     The Constitutional Court held that section 9a of the 2011 Act on the NCJ (as amended), granting to the Sejm the competence to elect judicial members of the NCJ and providing that the joint term of office of new members of the NCJ would begin on the day following the date of their election, was compatible with Articles 187 § 1 (2) and § 4 in conjunction with Articles 2, 10 § 1 and 173 as well as with Article 186 § 1 of the Constitution. It essentially relied on the reasoning of the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17). Selected public statements of the applicant in his capacity as NCJ spokesperson 40.     The applicant publicly commented in various fora on the government’s legislative proposals regarding the Constitutional Court, the NCJ, the Supreme Court and the ordinary courts. In 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. The relevant period began in December 2015, marked by grave irregularities in the election of judges to the Constitutional Court and ended on 6 March 2018, when the applicant’s term of office as a judicial member of the NCJ was terminated. In   the public debate, the applicant was, together with the First President of the Supreme Court, Ms Małgorzata Gersdorf and presidents of the two associations of judges (Themis and Iustitia), one of the main critics of the changes concerning the judiciary initiated by the government. 41.     On 6 May 2016, in relation to the proposed amendment to the Act on the NCJ, the applicant stated in an interview with the Rzeczpospolita newspaper: “The judges are to be appointed to the NCJ and not elected [by their peers] as at present. We will contest this project. The Constitution clearly speaks of full four years. However, the Minister argues that the terms of office end and begin unevenly, and he wants them to end and begin at the same time. If the Constitutional Court decides that the termination of positions [at the NCJ] is constitutional, I will recognise it. The NCJ must tackle the legislative and executive branches. ... The role of the NCJ is to give us [judges] guarantees that we will not be influenced by politicians. ... A strong Council which respects the Constitution is a thorn in every politician’s side.” 42.     On 3 June 2016 the applicant published an article on the Internet portal dziennik.pl entitled “Is this about taking over the Supreme Court?” in reply to an article “Second shock therapy. For courts” published earlier on the same portal. He stated, inter alia , as follows: “Unfortunately, in my opinion, it is no coincidence that a text which strongly criticises the NCJ, a constitutional body upholding the independence of courts and judges, appeared at the same time as the Government’s draft amendment to the Act on the NCJ was released. Unfortunately, this draft contains several solutions which are incompatible with the Constitution. Shortening the constitutional term of office of judicial members of the Council, the obligation to submit two candidates for judges to the President ... – these provisions are intended to weaken the Council. And as soon as possible. ... Justice reforms must be introduced in an evolutionary and well thought-out way. The   author apparently finds fault with the NCJ. Because there is a need for it. ... Maybe it’s preparation for ‘taking over’ the Supreme Court? It would be enough to adapt the Hungarian model and already half of [judges of] the Supreme Court will retire. Then, in order to fill it with your people, you need to have a docile NCJ full of people willing to be promoted. Perhaps this is what the present battle is really about? ... You cannot prepare a huge reform without discussing it with the judges of the higher courts, with a global view of the complexity of the system and the procedures. It is necessary to calculate and foresee the consequences. The ministerial team is doing all this without any consultations with the NCJ, forgetting that the judicial members on the current council were elected by an overwhelming majority of delegates from all courts, including district ones. And they have the legitimacy to be consulted on such important bills. And the Minister of Justice – a member of the NCJ – has not appeared at the Council’s meetings for a long time. When he was asked what the plans were, he replied: very fundamental. That is all. But that’s why he’s a member of the NCJ, which is a   platform for debate ... That is what the legislature intended. ...” 43.     On 13 September 2016 the applicant was interviewed by the portal natemat.pl . The text was entitled “The judges will not be defeated by power”. He stated, inter alia : “The authorities are using the problems of the judiciary as a pretext to dismantle the justice system – says Waldemar Żurek, spokesman for the NCJ. Q: First Law and Justice party, despite protests from Europe and the opposition, started to dismantle the Constitutional Court, now J. Kaczyński says it is necessary to deal with the Supreme Court. How do you assess these events? A: This is a campaign of the authorities against the judiciary. Recently, judges met at the Extraordinary Congress of Polish Judges. We hoped for the presence of representatives of the legislative and executive powers, but they did not accept the invitation. After the congress, the attacks on the judiciary by the authorities intensified. ... Q: The ruling party says judges are privileged. A: Judicial independence is not a privilege. It protects judges from [political] party pressures. It gives them independence, so they are not like weathercocks. It allows them to be guided solely by the law and not by the interests of one [political] party or another. Judicial immunity is a safeguard for the State when the legislative and executive branches break the law. And as far as judges are concerned, we are one of the few professions where disciplinary proceedings are public. Q: Law and Justice is dismantling the Constitutional Court, now it’s taking on the Supreme Court. When will it be the turn of the NCJ? A: There is a bill pending in the Sejm which dismantles the NCJ. It is supposed to terminate only the terms of office of judicial members of the NCJ. Surprisingly, this termination does not apply to the terms of office of politicians, who are also members of the Council. This is reminiscent of the Hungarian scenario in which Orbán changed the retirement age for judges so that they would leave office earlier.” 44.     The applicant presented the opinions of the NCJ on its official YouTube channel. On 31 January 2017 he commented on the NCJ’s opinion of 30 January 2017 on the Government’s bill amending the 2011 Act on the NCJ. He stated, inter alia , as follows: “Today I would like to tell you about the bills concerning the judiciary. The bills have been widely discussed, presented by the Minister of Justice in the media and submitted to the NCJ for its opinion. These are fundamental bills, which may lead to a change in the system, to a change in the system of the separation of powers. 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. First of all, the fact that the judges – this judicial part in the NCJ, because, as we know, the Council consists of politicians: senators, deputies to the Sejm , the Minister of Justice, the President’s representative, [and] a dozen or so judges elected by the judges. Here, in this bill, there is a fundamental change to this solution. Today it is politicians who will be able to elect all the judges – members of the National Council – and they have a fundamental influence on who becomes a judge in Poland, who is promoted to a higher level [of the judiciary]. The Council is also the guardian of judicial independence, the guardian of the independence of a given court. So if politicians take over the Council, because there will always be people in this group of judges who will listen to their orders, then the courts will become politicised. A judge who will have to reckon with pressure from a politician, if a special chamber is also set up at the Supreme Court that can remove him or her disciplinarily - well, unfortunately he or she will be subjected to serious pressure... The Minister also wants to extinguish the term of office of the judicial members of the NCJ. Despite the fact that the Constitution speaks of a four-year term, the Minister wants to do this by an ordinary law, so clearly [there will be] a direct violation of the Constitution. ...” 45.     On 2 March 2017 the Internet portal dziennik.pl published the article “Judge Waldemar Żurek: we are not afraid, we will not be intimidated or bought” which reported on the applicant’s statements in the television programme “Dot over the i”. “The application is purely PR-like. It is an artillery preparation to destroy the Supreme Court. ‘We have all seen it in the case of the Constitutional Court, and we can see it in the case of the NCJ’, the NCJ spokesman said in ‘Dot over the i’, commenting on the application of fifty Law and Justice deputies to the Constitutional Court to examine the resolution on appointing Małgorzata Gersdorf, the First President of the Supreme Court. In his view, the media favourable to the authorities would slander her personally and try to destroy her authority. Ms Gersdorf was on the side of the separation of powers, so she needs to be slandered. ... Waldemar Żurek in turn assured that despite this pressure the judicial community will not give up. You become a judge for difficult times, because it is easy to give even the most difficult judgments when there is no political pressure, when there is no violation of the Constitution. ‘We are just at the threshold of destroying the rule of law and the separation of powers’, he said. ‘I may be dismissed from my job, but I will not break my oath as a judge’, he concluded.” 46.     On 7 March 2017 the applicant was interviewed by the editor-in-chief of Newsweek Polska . “Q: You are no longer a spokesperson for the NCJ, but a spokesperson for saving the independence of Polish courts. A: I did not expect that every statement in defence of the law would be perceived as political. The NCJ spokesman reminds us that the role of a judge is to warn when something bad is happening, which is how he perceives the current situation around the judiciary. ... Q: Do you collect text messages? A: I started because I see how the Internet works. I get messages and it hurts me the most when they say: ‘you Stalinist bastard, secret police bastard or bandit in a robe’. My phone number is public. The institution’s spokesman must reach out to the media and the public. ...” 47.     On 21 June 2017 the applicant commented, on the TVN24 television news channel, about the judgment of the Constitutional Court of 20 June 2017 (see paragraphs 19-24 above): “The Constitutional Court has given a judgment on the provisions of the 2011 Act on the NCJ regarding the rules for the election of judges to the NCJ, declaring them unconstitutional. The ruling of the Constitutional Court will allow the politicians of the Law and Justice Party to introduce changes in the judiciary leading, among others, to the termination of the terms of office of judges – current members of the NCJ. – First, we have to ask whether it was really a judgment – said Waldemar Żurek when asked to comment on the judgment. The doctrine of law says that if a constitutional body includes a person who is not entitled to adjudicate, then we are dealing with a non-existent judgment – he stressed. Waldemar Żurek was also asked about changes in the judiciary introduced by the Law and Justice party. – I do not want to use the word ‘reform’, because in my opinion it is a deconstruction of the legal system. It will lead to the politicisation of the courts, to a complete take-over of the courts by politics. We have not yet had such a situation since we regained independence – he said.” Audit by the CBA of the applicant’s financial declarations 48.     The applicant submitted that the authorities had become interested in him since his increased involvement, in his capacity as the NCJ’s spokesperson, in the debate concerning judicial reforms and related threats to the independence of the judiciary. 49.     The Government stated that in 2016 the unit of the Central Anti ‑ corruption Bureau ( Centralne Biuro Antykorupcyjne – “the CBA”) responsible for auditing financial declarations submitted by judges had carried out a systematic examination of those declarations. As a result of that examination, a number of judges, including the applicant, had been subjected to advanced scrutiny due to irregularities in their declarations. The CBA initiated an inspection of the applicant’s assets and financial declarations ( oświadczenia majątkowe ). 50.     It appears that on an unspecified date in November 2016 the CBA’s Department of Oversight Procedures requested the President of the Cracow Court of Appeal to provide copies of the applicant’s financial declarations for the period 2010-2015 as well as information about the length of his service and posts occupied by him. The requested information was provided to the CBA on 1 December 2016. 51.     In a letter of 15 December 2016 the President of the Cracow Court of Appeal informed the applicant about the CBA’s request. 52.     In connection with the above-mentioned letter, on 23 December 2016 the applicant requested the CBA to inform him whether the audit procedure carried out by the Bureau was of a routine nature or related to any proceedings concerning him. He wished to know the legal and factual basis for the CBA’s actions, noting that he was a sitting judge and member of the NCJ, a   constitutional body. 53.     In a letter of an unspecified date in January or February 2017, the Deputy Director of the CBA’s Department of Oversight Procedures requested the President of the Cracow Regional Court to promptly transmit the applicant’s financial declaration for the year 2016. He referred in that letter to “the routine activities of the CBA’s Department of Oversight Procedures and analytical actions” in respect of the applicant. 54.     On 16 February 2017 the applicant asked that Department for information as to when the CBA had begun its above-mentioned activities. He further requested information on who had ordered the CBA’s activities in his case, whether there were any internal procedures setting time-limits for termination of such activities and when the activities concerning him were expected to end. 55.     The applicant has submitted copies of media reports from 12   April 2017 in which the CBA’s spokesperson stated that since the end of November of 2016 it had been analysing his financial declarations and that as a result of this the CBA’s officers had commenced an audit of his declarations. 56.     On 18 April 2017 the applicant’s lawyer, in connection with earlier telephone communications, informed the Warsaw Branch of the CBA by letter and facsimile that the applicant was ready to appear before it when summoned. However, due to his professional obligations he would not be available before 27 April 2017. Should the CBA consider his appearance necessary, the applicant’s lawyer requested that a formal summons indicating the legal basis and the procedure to be followed be addressed to him. 57.     On 19 April 2017 the CBA officers entered the NCJ’s premises in order to serve on the applicant a decision authorising the audit of his financial declarations. The decision dated 13 April 2017 stated that three CBA officers were authorised by the Head of the CBA to carry out the audit of the applicant’s financial declarations on the basis of section 13(1)(2) of the Act on the CBA. The audit concerned the accuracy and veracity of his financial declarations made in the years 2012-2017. The audit was to commence on 19   April 2017 and end three months later. It appears that it was subsequently prolonged until January 2018. 58.     At the same time the tax authorities began a fiscal audit in respect of the applicant, the CBA extended its audit to his wife and the prosecution service questioned the applicant’s parents. The applicant submitted that the audit of his wife’s financial situation had been carried out at the time when she was in advanced pregnancy, thus having a negative effect on her health and causing her serious stress. The applicant’s elderly parents had been distressed in connection with their questioning. 59.     On 11 May 2017 the President of the NCJ addressed letters to the Prime Minister and the Chairman of the Sejm Committee on Secret Services requesting an explanation as to the appropriateness of the actions taken by the CBA officers on 19 April 2017 at the NCJ’s seat. Those letters remained unanswered. 60.     In connection with the media reports concerning the auditing of the applicant’s financial declaration, on 2 May 2017 the Panoptykon Foundation asked the CBA to disclose, inter alia , how many such audits were carried out in 2017 and the practice as to the place of service of authorisations to carry out such audits, pursuant to the Act on Access to Public Information. On   16   May 2017 the CBA replied that in 2017 it had carried out 37 audits of the accuracy of financial declarations. As regards the question about the practice, the CBA stated that they had not kept statistics regarding the place of service of the authorisation; however, it indicated that audits often commenced at the place of work or service of the person concerned. 61.     On 9 August 2017 the applicant’s lawyer notified the CBA’s Department of Oversight Procedures that the applicant had still not received a reply to his letter of 16 February 2017. Furthermore, on a few occasions the applicant was summoned to the CBA in order to provide explanations despite the fact that he had informed it about his holidays and his professional obligations as a judge and member of the NCJ. Lastly, the applicant expressed serious doubts as to whether the CBA’s officers had appropriately exercised their statutory competences in view of the failure to provide him with the requested information, the performance of procedural acts without taking account of his availability and numerous statements to the media on the subject-matter of the pending proceedings. 62.     On 29 December 2017 the applicant and his wife were notified by the CBA, pursuant to section 23(9) of the CBA Act, that the Warsaw Regional Court had authorised the CBA to obtain information and data concerning them from nearly 300 banks and financial institutions in Poland. 63.     It appears that at the end of 2017 the CBA officers visited the applicant’s accountant in her office, asking for