Attorney General Zbigniew Ziobro has submitted a request to the CJEU to review the appropriateness of Marek Safjan’s participation in the jury panel on Polish regulations preventing extradition of a child abroad, the national prosecutor’s office informed PAP.
According to the Prosecutor General, Judge Marek Safjan’s public statements describing his negative attitude towards changes in the judiciary and even the functioning of democracy in Poland raise justified doubts about the judge’s impartiality in this case
– PK informed of the justification of this request.
The transfer of children
This is a case initiated by questions to the Court of Justice of the EU brought by the Warsaw Court of Appeal on the basis of the transfer of two children to Ireland and regarding the conformity of the provisions of the Polish Code of Civil Procedure with European Regulations.
As PK noted in this regard – Judge Safjan “is reviewing legal remedies that, among other things, allow PG to apply to the court for the enforcement by operation of law of a final decision on the removal of a person under parental authority or under guardianship residing in the territory of Poland”.
So far, Judge Marek Safjan has indicated in public statements that, as an active participant in the public debate on changes in the Polish judiciary, he excludes himself as a judge of the Court of Justice of the EU from adjudicating cases concerning Poland, which however, he did not this time.
noted PK.
In addition, Ziobro indicated in his application that although Judge Safjan’s second term as ECJ judge expired on 6 October 2021, the committee that advises on candidates for new judges of the Tribunal – the so-called Committee 255 – approved the side’s proposed judge candidate, who should replace judge Safjan, is not good.
The motives for this decision are unknown, as the committee’s activities are not transparent – hearings are held behind closed doors and opinions on candidates are not made public. In the opinion of Zbigniew Ziobro, these circumstances justify the belief that the actions of Committee 255 are intended and aimed at indefinitely extending the term of office of Judge Safjan, who has repeatedly spoken negatively about changes in the Polish judiciary.
PK said. She added that under EU law, Judge Safjan will rule until his successor is chosen.
As noted in this regard, Ziobro has argued in the application that the European Court of Human Rights has ruled in a number of judgments on the importance of the expiry of the term of office for the exercise of the right to a hearing of the case by an independent and impartial tribunal established by law.
The jurisprudence of the CJEU, based on the acquis of the ECtHR, shows that an incorrect composition of the court constitutes an absolute procedural obstacle, resulting in the invalidity of the procedure. Hence also the request of the GUT to check the correctness of Judge Marek Safjan’s participation in court
– informed.
The source of this case before the CJEU is the amendment of the provisions of the Code of Civil Procedure, which entered into force on 24 June last year. First, it introduced a mandatory suspension of ex officio enforcement of a final court decision ordering the return of a child to another country if the child is subject to an appeal in cassation before a competent authority. The Attorney General, the Ombudsman for Children and the Ombudsman have the possibility to lodge such an appeal in cassation.
Under these provisions, the enforcement of the decision on the return of the child is suspended at the request of the body lodging the cassation appeal. The deadline for submitting such a request shall not exceed two weeks from the date of entry into force of this Decision. Subsequently, from the date on which the decision becomes final, the competent authorities have two months to file a cassation complaint leading to a further suspension of the enforcement of the decision. Lodging a cassation prolongs the suspension of the enforcement of the decision on the return of the child until the end of the cassation procedure at the Supreme Court.
In addition, the amendment provides that the lodging of an extraordinary complaint concerning the removal of a person subject to parental or guardianship under the 1980 Hague Convention also “suspends by operation of law the enforcement of the decision on the removal of a person”. person under parental or authority to terminate this complaint.
Disputes about the rules
Some provisions of this amendment have led to disputes during the legislative work. The Senate passed amendments that deleted the part of the amendment dealing with extraordinary complaints.
In addition, the solution may extend the execution of the decision on the removal of a person under parental authority or guardianship, which is not justified in terms of the child’s best interests
the Senate explained. The Minister of the Prime Minister’s Chancellery, Michał Wójcik, then replied that “the Senate dealt a blow to Polish children”. The Sejm rejected the Senate’s amendments.
Based on such a case, the Warsaw SA last fall. asked the ECJ about the conformity of these provisions with European law. The justification for the question stated that the amendment “enables the designated public authorities to block the execution of a final judgment for several months in cases where the speed of execution is crucial for the protection of the best interests of the child.”
As added in this motivation “even if the Supreme Court in the Civil Chamber refuses or rejects the cassation appeal for consideration, so that the order becomes enforceable again (…), the same public bodies will again suspend the execution of the decision. (…) by exercising their right to file an extraordinary complaint”.
At the same time, the Court of Appeal asked the CJEU to deal with the case as a matter of urgency.
Meanwhile, in late January Didier Reynders, the EU’s Justice Commissioner, sent a letter to the Minister of European Affairs, Szymon Szynkowski vel Sęk, formally launching the so-called anti-infringement procedure against Poland. The letter stated that our country had incorrectly implemented and applied the EU Regulation on the Recognition and Enforcement of Judgments of Courts of Other Countries in Matrimonial and Parental Responsibility Matters. The EC emphasizes that many judgments in such cases are not enforced in Poland.
The Minister of Justice and GUT, Zbigniew Ziobro, noted in early February that not long ago “when a woman and a child were victims of abuse and maltreatment, persecution, various forms of oppression and the mother saved herself by returning to her homeland, to Poland with her child, these children were automatically taken away from Polish mothers and handed over to foreign fathers, often against obvious facts.” According to him, the EU is escalating its demands on our country.
This time he extends his dirty paws – as far as their intentions are concerned – to Polish children
he said.
gah/PAP
Source: wPolityce