The Declining State of the Judiciary in Poland

—Piotr Mikuli, Professor and Head of Chair in Comparative Constitutional Law, Jagiellonian University in Kraków, Poland

For several months now, the Polish government has been deliberating on the Article 7 TEU sanction procedure with the EU, but the ruling party does not seem to be tackling the problem seriously, playing a tricky game with the EU commission instead, probably in hopes of tiring it out. All of the proposed amendments to the controversial pieces of legislation concerning the judiciary system are a façade, and do not in any way reverse the state of their unconstitutionality.

After demolishing the Constitutional Tribunal in 2016,[1] further measures undermining the independence of the judiciary system were taken by the ruling Law and Justice party (PiS). In June 2017, PiS proposed three bills – two amending the laws regarding the National Council of the Judiciary (the NCJ)[2] and the Act on the courts of general jurisdiction, as well as one new bill on the Supreme Court. These were immediately passed by the parliament. Massive street protests erupted in defense of judicial independence.

The bills provided, among other things, a venue for a radical purge of the Supreme Court. The Minister of Justice was supposed to decide which judges could stay in the Court and which had to retire. The President of the Republic, Andrzej Duda, decided to veto two out of the three laws under pressure from public opinion, yet he nevertheless signed the one law concerning the courts of general jurisdiction—a law that endangered their independence. It very quickly became apparent that the veto was a political manoeuvre, since he proposed two very similar, controversial and in many ways also unconstitutional bills in September 2017. These two bills, regarding the Supreme Court and the National Council of the Judiciary, were passed on December 8, 2017, and began to take effect in this Spring.

The new statute of the Supreme Court lowers the retirement age for the all judges to 65, which means that around 40 per cent of judges currently serving could be removed from their office. Those who want to remain in the Supreme Court are forced to submit a special motion to the President of the Republic (in the case of lower courts, the Minister of Justice was supposed to make this decision in the original version). Decision regarding an extension of the judicial mandate in the Supreme Court remains at presidential discretion (furthermore, the government must give its consent for each case, as this competence of the President must be countersigned). Moreover, the new Supreme Court Act allows for two new chambers of the Supreme Court that can be created completely from scratch, which is especially dangerous as these two chambers are meant to be responsible for disciplinary proceedings and determining the validity of general elections. The Supreme Court Act also introduces the institution of the so-called extraordinary complaint,[3] which has been highly criticized by both the academia in Poland and the European Commission. The appeal permits the Supreme Court to question final rulings made in courts over the past 21 years, which without a doubt disturbs the principle of legal certainty.

In turn, according to the new amendment of the National Council of the Judiciary Act the methods of the judicial members’ election has been changed. The constitutional concept of the Council assumes that each power should be exclusively responsible for deciding who its representatives are in the Council, and judicial members of the NCJ were, therefore, previously elected by bodies of judicial self-government. Currently, the first chamber of parliament (the Sejm) elects them from amongst the candidates presented by groups of 25 judges or 2000 citizens. In practice, it turns out that the overwhelming majority of the judges elected to the Council have links to the Minister of Justice, Zbigniew Ziobro,[4] and that the names of the judges who supported the candidates have concealed what seems to be one of the most scandalous political issues in Poland in the last several months. Thus, due to the captured NCJ and other described mechanisms the politicians have gained direct influence on the procedures related to the appointment, promotion and discipline of judges.

The ruling party, facing many international problems and critics,[5] as well as being under pressure from upcoming decisions on EU budget, announced that it is open for discussion and ready to accept certain objections formulated by the EU commission. However, the governmental proposals are so superficial that, in my opinion, their propaganda effects are rather limited. The new amendments to the judicial statutes, passed by the parliament last month on the April 12 and signed by President Duda, envisage that the decision regarding the extension of the possibility to adjudicate in lowers courts by judges who have reached the age of 65 will belong to the NCJ instead of the Minister of Justice. Considering the above-mentioned method of its composition, these suggested changes may only cause an outburst of laughter.

The next “reform” proposed consists of an alleged restriction of the previously introduced power given to the Minister of Justice to fire court presidents. Presently, the Minister of Justice can dismiss court presidents after seeking the opinion of a specific court board, however, if the board’s opinion is negative the Minister can then refer the matter to the captured NCJ. In turn, new amendments proposed in May transfer the competencies to appoint trainee judges from the Minister of Justice to the President of the Republic. But in practice this change does not have much impact as the presidential decision must be also countersigned in this case, so these actions require the consent of the Prime Minister. The government also proposed the reshaping the extraordinary appeal, but in practice it does not eliminate the doubts raised and it even appears to complicate the subjective scope of this recourse.[6] The most odd measure is the one regarding the official publication of the three Constitutional Tribunal rulings passed in 2016, which was requested by the EU Commission.[7] In this case, the ruling party does not even pretend not to have any effect in practice, since in the relevant act it is emphasized that these are not judgments as such, but rather “settlements” issued with the violation of the law.

Despite the recent rumors that the EU commission, being tired from the long and exhausting negotiations, was eager to make a compromise with Poland, on May 14 the deputy head of the European Commission Frans Timmermans said the EU  would not withdraw the Article 7 procedure against Poland at this stage. It was really hardly believable that the Commission is not aware of the fact that the solutions proposed by the Polish government so far will certainly not secure the weakening rule of law in Poland. How important the independence of the court system is for the rights of an individual in trial is shown by the landmark Celmer case,[8] which is supposed to be finally decided soon on June 1 by the Luxemburg Court. The ECJ must consider upon the preliminary ruling procedure the question of the Irish High Court regarding whether or not the Polish judiciary system is still in conformity with European standards.[9] I am of the opinion that, even if the Luxemburg Court provides an evasive answer, the trust in the Polish judiciary system unfortunately will remain severely dented.

Suggested Citation: Piotr Mikuli, The Declining State of the Judiciary in Poland, Int’l J. Const. L. Blog, May 15, 2018, at: http://www.iconnectblog.com/2018/05/the-declining-state-of-the-judiciary-in-poland

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[1] See M. Matczak, ‘How to Demolish an Independent Judiciary with the Help of a Constitutional Court’, VerfBlog, 2017/6/23, https://verfassungsblog.de/how-to-demolish-an-independent-judiciary-with-the-help-of-a-constitutional-court/, DOI: https://dx.doi.org/10.17176/20170623-103309.

[2] P. Mikuli, ‘An Explicit Constitutional Change by Means of an Ordinary Statute? On a Bill Concerning the Reform of the National Council of the Judiciary in Poland’, Int’l J. Const. L. Blog, 2017/02/23, http://www.iconnectblog.com/2017/02/an-explicit-constitutional-change-by-means-of-an-ordinary-statute-on-a-bill-concerning-the-reform-of-the-national-council-of-the-judiciary-in-poland

[3] The complaint in the original wording of the statute could be lodged by the ombudsman and the Prosecutor General, as well as some other state organs (but not by a party in the proceedings), if it were necessary to ensure the rule of law and social justice when: a) the decision violates the principles or freedom and human and civil rights specified in the Constitution, b) the decision grossly violates the law by erroneous interpretation or misapplication thereof, c) where an obvious contradiction between important findings of the court and the collected evidence exists – if such decision couldn’t be revoked or changed utilizing other remedies.

[4] See M. Matczak, ‘The Rule of Law in Poland: A Sorry Spectacle’, VerfBlog, 2018/3/01, https://verfassungsblog.de/the-rule-of-law-in-poland-a-sorry-spectacle

[5] Some are also connected with the so called memory law, see M. Małecki, P. Mikuli ‘The New Polish ‘Memory Law’: A Short Critical Analysis; DPCE Online, [S.l.], v. 34, n. 1, 2018/04, http://www.dpceonline.it/index.php/dpceonline/article/view/509

[6] Mainly by the substitution of the premise ‘ensuring the rule of law and social justice’ into ‘ensuring the principle of the democratic state ruled by law implementing the principles of social justice’.

[7] See Commission Recommendation regarding the Rule of Law in Poland: Questions & Answers, http://europa.eu/rapid/press-release_MEMO-16-2644_en.htm

[8] https://www.irishtimes.com/news/crime-and-law/ecj-to-rule-speedily-on-european-arrest-warrant-case-1.3462667

[9] The court refused to extradite a suspected person to Poland within the European Arrest Warrant frames due to concerns about the independence of the Polish justice system. The presiding justice argued that the rule of law in Poland had been ‘systematically damaged’. See also https://www.theguardian.com/world/2018/mar/13/ireland-refuses-artur-celmer-extradition-poland-justice-reforms-ecj