Attorney General Zbigniew Ziobro asked the Court of Justice of the European Union to review Marek Safjan’s participation in a Polish case about preventing the extradition of a child abroad, as reported by the national prosecutor’s office to PAP.
The Prosecutor General argues that Judge Marek Safjan’s public remarks criticizing changes to Poland’s judiciary and the functioning of democracy raise doubts about the judge’s impartiality in this matter.
– PK confirmed the justification of this request.
The transfer of children
The matter was brought to the EU Court by questions from the Warsaw Court of Appeal. It concerns the transfer of two children to Ireland and the compatibility of Polish Civil Procedure Code provisions with European regulations.
PK noted that Judge Safjan is examining legal remedies that allow the Public Prosecution to request enforcement by operation of law of a final decision on removing a person under parental authority or guardianship who resides in Poland.
So far, Judge Safjan has publicly stated that, as an active participant in the public debate on changes to the Polish judiciary, he would exclude himself as a judge of the Court of Justice of the EU from ruling on cases involving Poland, though he did not do so in this instance.
PK described this stance as part of the ongoing discussion around judicial reforms.
Ziobro’s filing also notes that although Judge Safjan’s second term as ECJ judge ended on 6 October 2021, the advisory body that evaluates candidate judges for the tribunal, known as Committee 255, approved a proposed judge who would replace Safjan. The submission questions the quality of that process.
The motives behind that decision remain unclear, as Committee 255 operates with limited transparency—hearings are held privately and candidate opinions are not made public. In Ziobro’s view, these circumstances feed speculation that Committee 255 aims to extend Safjan’s term, especially given his frequent criticisms of changes in Poland’s judiciary.
PK indicated that under EU law, Judge Safjan remains in his role until a successor is chosen.
Ziobro argued that the European Court of Human Rights has emphasized the importance of an independent and impartial tribunal established by law, particularly when the term of office expires. The ECtHR practice, he noted, aligns with EU jurisprudence that an incorrect court composition can block a case and undermine proceedings. This underpins the request to review Safjan’s participation.
The case before the CJEU stems from amendments to the Civil Procedure Code that took effect last year on June 24. The changes introduced a mandatory suspension of enforcement of final orders returning a child to a foreign country if an appeal in cassation is underway before a competent authority. The Attorney General, the Ombudsman for Children, and the Ombudsman may lodge such cassation appeals.
Under these rules, enforcement of a child’s return is paused at the request of the cassation body. The deadline to request such a pause is two weeks from the amendment’s entry into force. From the date the decision becomes final, authorities have two months to file a cassation appeal, prolonging the suspension of enforcement until the cassation procedure is complete. A cassation submission can delay the enforcement of the return decision as long as the Supreme Court review continues.
The amendments also provide that lodging an extraordinary complaint regarding the removal of a person under parental or guardianship rights under the 1980 Hague Convention also suspends enforcement by operation of law until this complaint is terminated.
Disputes about the rules
Some provisions of the amendments sparked legislative disputes. The Senate passed changes that removed the part dealing with extraordinary complaints. The solution could extend the execution of removal orders, something not necessarily aligned with the child’s best interests, according to the Senate’s explanation. The Prime Minister’s Chancellery, Michał Wójcik, countered that the Senate had struck a blow to Polish children, and the Sejm subsequently rejected the Senate amendments.
A Warsaw appellate court last autumn asked the ECJ about the conformity of these provisions with European law. The justification emphasized that the amendment enables public authorities to block the enforcement of a final judgment for months when speed is crucial to protecting a child’s best interests. The motivation also noted that even if the Supreme Court’s Civil Chamber declines cassation consideration, the same bodies may again suspend enforcement by using an extraordinary complaint.
At the same time, the Court of Appeal requested urgent consideration from the CJEU.
In late January, Didier Reynders, the EU Justice Commissioner, announced a formal step in the anti infringement process against Poland. The notice claimed that Poland had misapplied the EU Regulation on recognizing and enforcing judgments in Matrimonial and Parental Responsibilities matters and that many such judgments are not enforced in Poland.
Early February saw the Polish Justice Minister and the GUT head reflect on past cases where a mother and child faced abuse and oppression, with the mother returning to Poland with her child. Ziobro argued that the EU is increasing its demands on Poland. He described the EU actions as intrusive, asserting they extend into Polish child protection matters.
Source: wPolityce