All the challenges of Waldemar Żurek. Will the new justice minister find a plan B?

Unofficial reports that had been reaching the public for weeks about an imminent change in the Justice Minister's position have been confirmed. Prime Minister Donald Tusk has made the decision. Adam Bodnar is leaving the position of Justice Minister, and the position is being filled by Waldemar Żurek, a Kraków judge. He is an experienced adjudicator, a long-time member of the National Council of the Judiciary, and one of the record holders in terms of the number of disciplinary proceedings brought against him under Zbigniew Ziobro.

For years, Judge Żurek was one of the most vocal critics of the changes introduced by the United Right in the Polish judiciary. He also offered his unsparing assessments of Minister Adam Bodnar's actions, and importantly, these opinions were not always positive. In an interview with "Rzeczpospolita" in April, he argued that the pace of restoring the rule of law in Poland, and above all, the pace of addressing violations of the law under the Law and Justice party (PiS), should be faster.

However, following the Prime Minister's decision, Waldemar Żurek was forced to shed his judicial robe, transform from reviewer to reviewee, and assume responsibility for the future of the justice system. The need for comprehensive reform is urgent, and all parties to the dispute that is increasingly consuming the Polish judiciary are calling for it.

One of the most pressing challenges remains the need to systemically address the questionable status of over three thousand so-called neo-judges, those appointed with the participation of the National Council of the Judiciary after 2017. Adam Bodnar failed to achieve this goal, but it cannot be said that he didn't try. The Judiciary and Prosecution System Codification Commission, which he revived and headed by Professor Krystian Markiewicz, prepared two proposals to regulate the status of so-called neo-judges by reviewing their appointments. Based on one of these proposals, the ministry developed a draft, which, however, stalled within the ministry and was scheduled for review by the Venice Commission. Importantly, Judge Żurek positively assessed these proposals and announced his support.

However, the implementation of these changes will require Karol Nawrocki's signature, which is unlikely. "Minister Żurek should not abandon this project. The first step is to complete work on this bill as quickly as possible and present it to the president. This will be the starting point for further talks and perhaps some form of compromise – the obligation to implement the rulings of European courts rests with the government and the president. The question will also arise as to how these rulings can be directly applied, even without a law being passed. A law stabilizing the status of new judges may prove to be a better solution for most of them," says Judge Bartłomiej Przymusiński, president of the Iustitia judges' association.

He emphasizes that only if the president doesn't agree to the proposed changes will the Ministry of Justice have to look for Plan B. "The minister should also consider other ways to solve the problem. This is entirely possible. There are, for example, ideas for introducing a uniform status for judges (i.e., the principle that a judge is appointed as a judge of a court of first or second instance, but without specifying the court in which they will adjudicate – ed.). We are ready to discuss this matter," says Judge Przymusiński.

Interestingly, Waldemar Żurek has never been a fan of the introduction of the aforementioned uniform status. "However, let's remember that there is such a thing as the wisdom of the stage, and it may turn out that if there is no other way to resolve the impasse, he will change his mind," we hear from one of the judges.

Another unresolved issue that the new minister will inherit from Adam Bodnar is the operation of the National Council of the Judiciary (KRS). Despite the passage of a law a year ago that was intended to depoliticize this body and restore judicial election of some of its members, the KRS continues to operate in a questionable form. President Andrzej Duda blocked the changes by sending the adopted law to the Constitutional Tribunal, where it remains to this day.

"I believe it's worth revisiting this law and amending it so that the term of office of the so-called neo-KRS isn't shortened, but rather that a certain seniority requirement for candidates for KRS members is introduced. I believe this could be approved by President Karol Nawrocki. The term of office of the so-called neo-KRS, which ends in the spring, is conducive to this," says Judge Przymusiński.

In his opinion, Judge Żurek can effectively manage the Ministry of Justice. "If he defines his priorities and realizes that the minister has a duty to bring forward draft legislation, if he shakes up the structure of the ministry, which has seen some judges on secondment for many years, then I believe he will succeed," says the head of Iustitia.

Another undoubted challenge for the new minister will be to pull the Constitutional Tribunal out of its collapse and extreme politicization. In recent years, the Constitutional Tribunal, in concert with the president, has effectively blocked a number of reforms pushed by the ruling coalition. Furthermore, the adopted reform legislation has been stalled for months. Constitutional lawyers, however, argue that the immediate filling of judicial vacancies could partially heal the institution and prevent further erosion of its jurisprudence. And these are growing, as by the end of the year, the Constitutional Tribunal will have only nine judges out of 15 positions.

Judge Przymusiński also points in this direction. "The situation in the Constitutional Tribunal should finally be brought to order and the election of judges should be carried out. Properly staffing this body would allow for the constitutional review of statutory provisions. Unfortunately, we have become accustomed to functioning without the Tribunal; perhaps it's time to break the habit," the judge argues.

The separation of the Prosecutor General and the Minister of Justice, announced during the election campaign, has yet to materialize. The bill on this matter has not even been adopted by the government. Although it has already passed the Standing Committee of the Council of Ministers, nothing has happened with it for six months.

Another issue is that the bill itself is being criticized because it doesn't lead to full independence for the prosecutor's office. While it does provide for budgetary autonomy, which would prevent the prosecutor's office from being "starved" if it failed to act in accordance with the government's line of command, the method of electing the prosecutor general (by the Sejm, by an absolute majority, not a qualified majority) means that the ruling political party independently fills the office.

In addition, the new regulations do not remove the instruments introduced under Zbigniew Ziobro's administration, implemented by the so-called Muzzle Act, but they do introduce regulations that will allow for purging the current National Prosecutor's Office when it is transformed back into the General Prosecutor's Office.

"If the prosecutor's office is to be an institution of public trust, its independence, transparency, and resistance to political pressure must become a priority in the legislative process. It is essential to take real action during this term to break the long-standing stalemate that perpetuates the current, flawed model of prosecutorial operations in Poland," the Lex Super Omnia Association urges.

Is Waldemar Żurek capable of separating the offices of the Ministry of Justice and the State Treasury in a way that will limit politicians' influence on investigative activities? "I don't see that being possible. I don't think this is about any reform or separation, but rather about exacerbating the already tense atmosphere within the prosecutor's office and the justice system. Rather, it's about inflaming the conflict so that everyone is forced to choose a side," says prosecutor Piotr Turek of the District Prosecutor's Office in Kraków.

Meanwhile, pressure from the hard-line electorate to address the scandals of the previous government continues unabated. Proceedings are underway regarding irregularities at the Justice Fund (25 people have been charged, and six have already been indicted), the Government Agency for Strategic Reserves (concerning irregularities in the purchase of generators and masks), the Orlen case, the Collegium Humanum case, the visa scandal, and surveillance using the Pegasus system.

And the National Prosecutor's Office is operating at a half-hearted pace. Since the end of May, when Prosecutor Marek Wełna resigned after allegedly disagreeing with some of the claims made in a report on the prosecutor's office's activities during the PiS era, there has been no director of the economic crime department. His deputy cannot even take leave, because no one else has the appropriate decision-making authority. There is also a vacancy in the director of the organized crime and corruption department. Add to this the fact that, since the conflict over the dismissal of the previous Prosecutor General, Dariusz Barski, the three deputy prosecutors general have been essentially inactive, and we have a picture of an institution charged with enormous tasks, but where there is simply "no one to do it."

Additionally, the Internal Affairs Department of the National Prosecutor's Office, following a report from Judge Waldemar Żurek, is conducting an investigation into Maria Szczepaniec, a newly elected judge from the Supreme Court's Chamber of Extraordinary Control and Public Affairs, and the lay judge who adjudicated her case. The judge accuses them of committing an offense under Article 227 of the Penal Code, which provides for up to one year in prison for impersonating a public official.

"Even if Adam Bodnar liked the hierarchy of the prosecutor's office and the possibility of manual control, he'll like it even more now. I wonder when the first spine will break," we hear from one of the capital's prosecutors.

Somewhat aside from all these hotly contested political issues, fundamental issues remain concerning the efficiency of the justice system, currently operating with record slowness. The Ministry of Justice is working to digitize the judiciary, but this is a problem that cannot be solved by magic. Procedures, especially civil ones, require urgent reform (the draft amendments to the Code of Criminal Procedure have already been submitted to the Sejm). However, changes to the Code of Civil Procedure, including the reinstatement of adjudication by collegial panels, are linked to the need to address the problem of neo-judges. Furthermore, the new minister must decide whether he intends to reverse the changes to the Penal Code introduced by Zbigniew Ziobro. A corresponding draft was developed long ago by the Criminal Law Codification Commission, but the government has so far lacked the will and determination to submit it to the Sejm.