What is Happening to Poland’s Judges?

Europe’s Concern: The Polish Struggle over its Courts
Since the Polish government was elected in 2016, it has made massive changes to the country’s judicial system: hundreds of judges have been forced to retire and more than 13 laws have been passed, regulating the appointment and the oversight of judges. Many Poles fear that the courts have lost their independence and are now controlled by the government. The European Commission (EC) also has doubts about the independence of Poland’s courts and is trying to stop or reverse the changes which led to this backsliding.

For the EU, this conflict will be decisive. If member states cannot have confidence that partner states are democratic and respect the rule of law, the deep cooperation within the EU framework loses its basis.

Why Does it Matter?

All EU member states must respect the rule of law and democracy (Article 2 EU Treaty). Because every member state participates in legislating for the entire EU (through the EU Council), a significant problem in one state affects every member and contaminates the whole process.
The EU relies on its member states to enforce EU laws, so it must ensure that there are independent courts in those states.
In specific cases, EU instruments only work if there is mutual trust that the courts in member states are independent. For example, an EU member state may extradite a criminal suspect to another EU member state under the European arrest warrant.
Without rule of law, democracy does not work. Courts protect the rights of the opposition or they deal with alleged irregularities in elections.

Who is involved? The Players

Frans Timmermans
The European Commission, which is entrusted with protecting EU law. It is the “Guardian of the Treaty”.
Mateusz Morawiecki
The Polish government, which is composed mainly of the Law and Justice Party /Prawo i sprawiedliwość (PiS), defends the changes it has made and continues to remake the courts.
Gianni Buquicchio
The Venice Commission of the Council of Europe, which is composed of constitutional experts from across Europe who assess legal changes in many European states.
Poles
Poles, who opposed the government’s changes, including many Polish politicians, lawyers, the opposition and concerned citizens who have gone to the streets. Other Poles support the government’s agenda. The issue has polarised the country.
EU member states
The EU member states, which are asked to now decide whether there is a risk that the rule of law is being undermined in Poland.

The Process

The European Commission asked the Polish government to undo the changes it made to legislation which, in the Commission’s opinion, weakened independent courts in Poland. The Venice Commission published critical opinions on these changes, but the Polish government did not make any major changes to alleviate the Commission’s concerns. Then the European Commission asked the other 27 EU member states if they agreed about whether there is “a risk of a clear breach by a member state of the values of Article 2” (in this case: the rule of law) on the basis of Article 7 of the Treaty.
The governments of the 27 member states (with the exception of Poland) must decide whether they agree with the Commission’s assessment. The Council has not yet set a date for that decision.

If 4/5 (= at least 22)
member states AGREE
If at least 22 members states agree with the Commission’s assessment, the Commission may then ask member states to decide unanimously that the rule of law in Poland has been breached. If all member states agree, the Council may suspend Poland’s right to vote in the EU Council, and possibly halt EU funds to Poland. However, it is unlikely that all member states would agree - the Hungarian government has already indicated that it would not support such a decision.
If they
COMPROMISE
A compromise with the Polish government could see the Commission halt or withdraw the Article 7 process in exchange for some steps by the Polish government. Most experts believe that the government would not undo any changes, in particular those which have led to the appointment of new judges.
If less than 22
members AGREE
If less than 22 member states agree with the Commission’s assessment, the process ends. If a significant number of Poland’s EU partners agreed with the assessment, it would still be a strong political statement.

While we focus on the more political process that involves the member states, there are legal processes that impact this question as well. The European Court of Justice decided that an Irish Court must not extradite any person to Poland if the Irish Court has serious concerns about the independence of Polish courts and if this could affect the rights of the person concerned. Poland’s Supreme Court asked the European Court of Justice to determine whether recent legal changes related to the Supreme Court were in line with EU law. And in December 2017 the Commission submitted a case to the European Court of Justice, arguing that the Polish law on ordinary courts infringes on EU law.

What is the Struggle about?

The European Commission has five major concerns about the rule of law in Poland. You can read the Commission’s 42 pages of explanation to which the Polish government responded with its view contained in 92 pages. The concerns by the European Commission are underpinned by several even lengthier legal analyses by the Venice Commission of the Council of Europe.
pages

Before reviewing the points of contention, it should be pointed out that ever since the Polish government was elected it adopted a flood of new laws on the judiciary. In two years the Polish government adopted 13 such laws that changed the entire judicial system. Sometimes the government’s changes to these laws addressed a concern by the European Commission while simultaneously creating new concerns. Many legislative changes were made quickly and without transparency. The Polish legal community strongly opposed many of these changes. This overview will not provide all the details, but it provides links for more information.

These changes have been highly controversial in Poland. Even though the public demands reforms, they don’t support laws introduced by PiS. Many demonstrations were held against them. Judges were vilified in the media. Several judges lost their positions. This is about the law, but it is also about politics.

It’s about Institutions, but it is also about People

The European Commission’s concerns are about changes to the structure of the judiciary in Poland and its independent status, in part because they entail a massive re-staffing of the courts, especially at the higher level. By lowering the retirement age and changing the rules by which the Minister of Justice may appoint the courts' presidents, the government has appointed chosen persons into many judicial positions.

Beyond the structural issues, this systematic re-staffing is a concern by itself. It is also not consistent with the three aims of the government’s White Paper (page 22), which does not indicate that the government seeks to exchange many judges.Indeed the changed Constitutional Tribunal is deciding cases at a much slower rate now, increasing the length of proceedings.

What reasons has the Polish Government provided then for all of these changes?

Government position What do critics say?
Low Trust in the Judiciary The government’s White Paper suggests that Poles do not trust judges. The statistics cited by the White Paper refer to the government’s time in power, suggesting that its actions are the problem rather than the solution.
The White Paper’s first sentences state: “Public trust in the Polish system of justice is at a very low level. According to a 2017 World Justice Project survey (conducted before the reforms were introduced), it was markedly lower than in the majority of developed countries, (…)” We contacted the World Justice Project who told us that the household surveys were held from 17 June 2016 to 3 July 2016. At this point the government was in office already for six months and the controversy about the Constitutional Tribunal was widely discussed. The additional ‘qualified respondents surveys’ that also inform the index were conducted even later (May 2017 to October 2017). The official White Paper starts with a false statement.
The Number of Judges in Poland The government’s White Paper suggests that Poland has a very high number of judges proportional to the population and compared with other EU partners (no source provided). Poland’s numbers are comparable to other states in Central Europe and Germany (Western Europe has more lay judges), see here (page 18). The reforms have not reduced the number of judges, but have changed judges entirely.
Length of Proceedings The White Paper states that the Polish judiciary takes too long to resolve cases. The statistics in the White Paper (page 11) show that length of proceedings in Poland rank among the lower average of EU countries. The current re-staffing of courts is likely to increase the length of proceedings.
The Presence of Communist Judges The government claims that there are still many judges which were appointed in the Communist era, but provides no statistical data (How many? Which courts? Their record?). It is believed that the number is low, given that the Communist era ended almost 30 years ago. At the moment the Law entered into force, seven out of 80 Supreme Court judges had entered the judiciary during the communist era. There were no such judges in the Constitutional Court. The usual avenue for dealing with the past would be criminal proceedings or lustration of specific individuals.
Imbalance of Power The White Paper suggests that judges are too powerful and independent and therefore unable to govern themselves. The White Paper states that during a three-year period, 50 cases of judicial misconduct were closed without penalty (for reasons like time limitations in the criminal code). The number of cases mentioned (some 16 cases per year for 10,000 judges) seems low. If time limitations are considered an impediment, they could be amended for future cases. Giving the executive and parliament strong powers over the judiciary creates an imbalance of power. The White Paper points out that many Poles think that judges are not sufficiently independent. Significantly increasing executive influence seems to be the wrong answer to that problem.
Apart from contradictions in the White Paper, there has been scepticism about the Polish government’s professed motivations. Government representatives have made statements that suggest that the real motivation is political control of the courts. Famously, the ruling party’s strong man, Jaroslaw Kaczyński, lamented that the government faces ‘legal impossibilism’ because policies or administrative acts can be challenged in courts and “there is a specific way of interpreting the law that effectively means that nothing is permitted”. He stated that the changes to the Constitutional Court were necessary “to ensure there are no legal blocks on government policies aimed at creating a fairer economy”. These statements stand in stark contrast to the justifications in the government’s White Paper.

The shape of the government’s reforms and the replacing of many judges suggests that the real motivations are found in Mr. Kaczyński’s statements. Likewise, the sequence of reforms suggests that political control of courts is the government’s main motivation. The ruling party immediately disabled and then took over the Constitutional Tribunal, preventing the Tribunal from ruling any following changes unconstitutional. The take-over of the Constitutional Tribunal was not related to official justifications cited in the White Paper (length of proceedings, communist past or judicial self-regulation).
Furthermore, the Venice Commission has been highly critical of the reforms. The Venice Commission is composed of constitutional experts appointed by governments from across Europe. It is an expert body with no political leaning and has in the past criticised legal reforms by left-wing and right-wing governments alike. It commented on the Polish reforms of the Supreme Court, ordinary courts and the National Judicial Council:

“(…) the Act and the Draft Acts, especially taken together and seen in the context of the 2016 Act on the Public Prosecutor’s Office, enable the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, and thereby pose a grave threat to the judicial independence as a key element of the rule of law.”

What specific measures
does the European Commission object to?

problem 1
The Constitutional Tribunal
problem 2
Supreme court
problem 3
National council for the judiciary
problem 4
Ordinary court organisation
problem 5
National school of judiciary
The Constitutional Tribunal
Relevance:
According to the Polish Constitution, the Constitutional Tribunal shall make sure that laws do not violate the Polish constitution and to decide conflicts between state bodies on the basis of the constitution.
“The aim of the legislation is to destroy the court, to disintegrate it, to create a kind of private council for our ‘beloved leader’.”
Andrzej Rzepliński >>
Andrej Rzepliński, the former president of the Constitutional Tribunal, publicly criticised the legislative changes introduced by PiS, considering that they violated the rule of law.
December 2016
The Facts:
When the former government realised that it would lose elections, it appointed five new judges to the 15-member Constitutional Tribunal. When the Law and Justice party (PiS) won the elections, it quickly changed the law, allowing the parliament to annul these appointments and appoint other judges. Parliament then appointed 5 new judges.
The case was brought to the Constitutional Tribunal, the competent court for this kind of question. The Tribunal ruled that the changes to the law were illegal and therefore invalid, but it also found that two of the five judges were illegally appointed by the previous governments (for specific reasons). Despite these judgements, the President of Poland did not swear in the three legally appointed judges, but instead swore in the five new judges, appointed by the PiS majority. In addition, parliament adopted another law that made huge changes to the functioning of the Constitutional Tribunal. The Constitutional Tribunal then ruled that these changes were not in line with the Constitution. First, the government did not publish these decisions and once it did, it argued that they had no legal validity.
Since then the government and its majority in parliament managed to control the Constitutional Tribunal. By June 2017 it had appointed 9 of the 15 judges. Under normal circumstances it would have taken until the end of its term in late 2019 to do so.
What does the European Commission say?
Overall the Commission is concerned that “the common pattern of all these legislative changes is that the executive or legislative powers have been systematically enabled to interfere significantly with the composition, the powers, the administration and the functioning of these authorities and bodies. The legislative changes and their combined effects put at serious risk the independence of the judiciary and the separation of powers in Poland which are key components of the rule of law.”

Specifically, on the Constitutional Tribunal, the Commission says that the President of Poland should have appointed the three “earlier” judges as indicated by the Constitutional Tribunal.
What does the Polish government say?
The government claims that the appointment of the five judges by the previous parliament was illegal and therefore the government’s appointment of five new judges is lawful.
Assessment
The government has the right to disagree with the Tribunal’s decision, but it has no right to ignore it. Looking at the extreme haste of appointments and adoption of a new law – without any public consultation – it is difficult to avoid the impression that the government and its parliamentary majority tried to swiftly take control of the Constitutional Tribunal without regard for constitutional law. In this way a crucial check of further changes to the judiciary was removed from the beginning of the government’s transition to power.
The new Law on the Supreme Court, in force since April 2018
Relevance:
The Supreme Court ensures oversight over common and military court judgments as a last resort of appeal against judgments of lower courts. It also rules on the validity of elections. The Law on the Supreme Court regulates the Court’s composition and jurisdiction, selection and appointment of judges, promotion and dismissal of judges, etc.
“My presence here is not about politics, I am here to protect the rule of law”
Malgorzata Gersdorf >>
Gersdorf (65 years old), the president of the Supreme Court, whose term expires in 2020, refuses to retire, because her term is enshrined in the Constitution which cannot be changed by ordinary laws. She went to work on the day when the law entered in force, accompanied by demonstrators who support her.
July 2018
The Facts:
The new law sets a new retirement age of 65 years for judges. After reaching this age, a judge may continue to hold office only at the President’s discretion. In early July 2018, around 40% of Supreme Court judges would have lost their positions under the new law, but some of them reject these changes as unconstitutional. The government intends to appoint new judges. Furthermore, in the case of the current President of the Supreme Court, it would also shorten her six-year term of office. The Constitution fixes the tenure (their time of service) of the Supreme Court Judges (Article 183) and it cannot be changed by an ordinary law.

The law also introduces two new chambers of the Supreme Court:

  • Chamber of Extraordinary Review and Public Matters, which has powers to overrule the final judgements of other chambers and decide on election disputes
  • Disciplinary Chamber dealing with disciplinary proceedings against judges, which will be independent from the Supreme Court with its own president and budget

Both new chambers will be composed of new judges who have never held office in the Supreme Court and who are appointed by the parliamentary majority.
What does the European Commission say?
The Commission fears that these changes – compulsory retirement of a significant number of judges, the possibility to immediately recompose the Court, and new disciplinary regime for judges – structurally undermine the independence of the Supreme Court and the rule of law. The Commission is also concerned about the separation of powers as new judges of the Supreme Court will be appointed by the President upon recommendation of the National Council for the Judiciary, which is dominated by members directly appointed by Parliament. The Commission recommends not to lower the retirement age for current judges, to remove the discretionary power of the President to prolong the mandate of the judges, and to remove the extraordinary appeal procedure that can be used to re-open cases which have been closed for years.
What does the Polish government say?
The Polish government does not see judicial independence at risk. The government welcomes “fresh blood” in the courts, claiming that after the collapse of communism in 1989 there was insufficient vetting of judges, leaving many judges implicated in communist crimes. The government argues that the retirement procedure reflects the principle of checks and balances and allows different branches of power (President) to decide independently if Supreme Court judges should continue to work beyond the retirement age.

With the new disciplinary procedures, the government claims it is reforming an ineffective system. In the government’s view, the Disciplinary Chamber does not challenge judiciary independence because Polish judges enjoy extensive immunity and cannot be charged with a crime without the consent of the court in which they hold the office.

The government has further limited the right to re-open closed cases only in extraordinary appeals, granting this power to the Ombudsperson and Minister of Justice.
Assessment
To ensure judicial independence, judges should be free from any political influence. They should not fear negative consequences to their career when they follow the law. The new rules allow parliament and the president to directly and indirectly influence the composition of the Supreme Court. The Polish government has the right to set the retirement age for judges, but the age limit should not be used to effectively dismiss judges and shorten their mandate as laid out in the Constitution. Legal certainty is also at risk under the new appeal procedure that allows old cases to be re-opened. If indeed communist-era judges are a problem, a lustration process could be launched.
The new Law on the National Council for the Judiciary, in force since March 2018
Relevance:
According to the Constitution, the National Council for the Judiciary (NCJ) is a key body to safeguard independence of judges. The NCJ has powers to nominate the candidates for new judges and give opinions regarding the promotion of judges, their assessment and disciplinary proceedings, and thus, can directly impact the independence of judges. Therefore, it is of crucial importance that the NCJ itself is independent and protected from undue influence from the parliament or government.
The Facts:
The NCJ is composed of 25 members. Before the new law, 15 members of the NCJ were judges elected by their peers; one was a representative of the President and one was a representative of the Minister of Justice, while six were parliamentary deputies and presidents of the Supreme Court and the Supreme Administrative Court ex officio.

The new law transfers the power to appoint the judges-members to parliament and provides grounds for premature termination of judges-members selected under the old rules. The candidates to be judges-members can be submitted by groups of 25 judges or by groups of at least 2000 citizens. In March 2018, parliament replaced 15 judges-members of the NCJ.
What does the European Commission say?
The premature termination of judges-members raises constitutional concerns. The new regime to appoint judges-members significantly increases the influence of parliament over the NCJ and adversely affects its independence. The Commission advises amending the Law on the NCJ, not terminating the mandate of judges-members, and ensuring that the new appointment regime continues to guarantee the election of judges-members by their peers.
What does the Polish government say?
The term of all NCJ members is irrevocable and thus, parliament has no mechanism to exercise any pressure on the decisions of the NCJ’s members once they have been elected. Furthermore, the new law provides that no less than 40% of the judges-members should be nominated out of the candidates presented by the parliamentary opposition. According to the government the new nomination procedure minimises the risk of self-interest, illegitimate self-protection, and public perception of judicial corporatism. The government also argues that the premature termination of judges-members does not impact the functioning of the NCJ in any significant way. And the Polish constitution does not specify who elects the judges-members; it only requires that 15 out of 25 members are judges. The new law on the NCJ meets this requirement.
Assessment
EU member states are free to organise their justice system. Where they have National Councils for the Judiciary, as in Poland, such Councils should be protected from singular political influence. One accepted way to ensure this protection is to guarantee that not less than half of the NCJ’s members are judges chosen by their peers and effectively counterbalanced by representation of the legislative or executive branches and/or civil society. Because 21 out of 25 members are nominated by the same branch of powers, by much of the ruling party, there is no balanced composition in the NCJ.
The new Law on Ordinary Courts Organisation, in force since August 2017
Relevance:
The Law on Ordinary Courts Organisation regulates ordinary courts’ composition, the selection and appointment of judges, the appointment of presidents of courts and their competences, the promotion and dismissal of judges, transfers of judges between courts’ divisions, courts’ administration and organisation, etc. All these aspects directly or indirectly influence the independence of judges.
The Facts:
The new law determines a new retirement age of 65 years for all judges. The Ministry of Justice can however decide that a judge can work beyond retirement age, if justified in the interests of the judiciary or other” important interests of the society”.

The new law grants the Minister of Justice the discretionary power to appoint court presidents and dismiss court presidents and vice-presidents. The NCJ can only block the decision of the Minister of Justice on dismissal by a 2/3 majority (as mentioned, 21 of the NCJ members have been appointed by the parliamentary majority). A court president manages the administration of the court, making decisions on the workload of judges, assignments, holidays, etc. Therefore, the law introduces a new disciplinary hierarchical pyramid: judges, courts presidents, and the Minister of Justice.
Furthermore, the Minister of Justice has disciplinary oversight over judges by appointing and instructing a special disciplinary officer to handle disciplinary cases.
What does the European Commission say?
The Commission is concerned that the new retirement age and new competences of the Minister of Justice violate the constitutional principle of independence of courts and might adversely affect the impartiality of judiciary. The right of the Minister of Justice to appoint a disciplinary officer influences the entire disciplinary procedure, which should be managed by the judiciary itself. The role of the Ministry furthermore challenges the principle of separation of powers. The new disciplinary regime also raises concerns regarding the requirement of due process because it allows for evidence, gathered in violation of the law, to be used in proceedings and for proceedings to be held even when the accused judge is absent.

Thus, the Commission advises that the Law on Ordinary Courts Organisation be amended or withdrawn. The Polish government is expected to remove the new retirement regime and abolish the discretionary powers of the Minister of Justice to prolong the mandate of judges and the appointment and dismissal of courts’ presidents.
What does the Polish government say?
The reforms do not introduce any mechanism that would allow the executive or legislative branch to affect judicial verdicts. New provisions strengthen the role of the Minster of Justice to improve judges’ position towards the court administration, which is managed by court presidents. The changes aim at making the administration of justice more effective and accessible to people.
The new provisions will allow the Minister of Justice to react to inefficiency. His competences are limited to administrative questions. The simplified procedure, which allows the Minister of Justice to dismiss presidents and vice-presidents without consulting the NCJ, has been changed and a 2/3 majority of the NCJ can block a dismissal.

Involvement of the Minister of Justice in the disciplinary proceedings of judges is to ensure that such proceedings will take place in cases where judges themselves would unduly refuse to initiate them. The role of the Minister of Justice is to be limited to preliminary, preparatory disciplinary proceedings; the main disciplinary proceedings will be conducted by disciplinary courts. The goal of a new retirement age is to remove judges who collaborated with the communist regime and empower younger judges.
Assessment
Judges are subject only to the law. A hierarchical subordination creates undue external influence and thus, threatens the impartiality and independence of judges. This hierarchy is introduced with new competences for the Minister of Justice in terms of disciplinary proceedings, dismissal of courts’ presidents and vice-presidents, and the Minister’s discretionary powers to prolong the office terms of judges. Indeed, the Minster of Justice cannot directly influence the decisions of a judge, but with new powers he can interfere administratively in the work of a judge. In practice, the decisions of the Minister on dismissals are unlikely to be blocked by 2/3 majority of the NCJ, given that the Minister of Justice is a member of the NCJ and that 21 members of the NCJ have been appointed by the government majority of the PiS party.

There are no clear criteria upon which the Minister decides on extension of the judges’ terms after retirement; it seem to be a subjective decision by the Minister. There is no appeal against such a decision. A new retirement age in certain cases will result in shortening the tenure of a judge, which is fixed by the constitution. Changing the retirement age is a blunt tool that may affect ex-communist judges as much as judges who resisted the communist regime. If the objective is to deal with specific judges who have a problematic record during communist-era, lustration provisions should be used in individual cases.
The new Law on the National School of Judiciary and Public Prosecution, in force since June 2017
Relevance:
The law regulates the organisation and administration of the National School of Judiciary and Public Prosecution. The school is prestigious and only graduates who passed a special exam can become a judge or a prosecutor.
The Facts:
The Minister of Justice has extensive competences to influence the organisation of the school and its educational programme. The Minster appoints all members of the school board supervising the content of education, seven out of nine members of the examination committee, and a school director. The Minister can veto appointments of lecturers.

The law re-introduces the position of so called trainee judges (judges on probation) as a default first step of a judiciary career. The Minister of Justice appoints the school graduates as trainee judges for a period of up to four years. The trainee judges are entrusted with the tasks of a judge and can work in any of Poland’s 321 district courts.

Later, the Minister of Justice can nominate trainee judges to a position as a judge.
What does the European Commission say?
The Commission pointed out that the position of trainee judges is not envisaged in the Constitution. It was introduced by an ordinary law and can be modified by ordinary law. Thus, trainee judges are not subject to the same constitutional guarantees protecting judicial independence as those applicable to judges. At the same time, trainee judges can decide cases in district courts as single judges. Without sufficient guarantees for the independence of trainee judges, the right to a fair trial is undermined. The Commission is concerned that the criteria to become a trainee judge and a judge differ. The Commission did not make concrete suggestions on how to amend the law, but instead advised to withdraw the law or amend it in accordance with the constitution and European standards on judicial independence.
What does the Polish government say?
The Polish government has not taken or announced any concrete measures to address the issues raised by the Commission. The government pointed out that the position of trainee judges is allowed under European standards, provided that proper safeguards are in place to guarantee the independence of a trainee judge. During the period of training, trainee judges cannot be dismissed by anyone. The government explains that candidates for permanent judges must meet the same criteria as candidates for trainee judges. The trainee judge position allows candidates to demonstrate that they have the abilities to adjudicate for a life tenure. The competences of the Minister of Justice to appoint trainee judges as judges/to the position of judge are solely ceremonial and the decision is based on a ranking list made upon examination. The quality of a trainee judge's work is evaluated not by the Minister of Justice, but by an auditing judge and the NCJ. Furthermore, a trainee judge may appeal the NCJ’s decision to the Supreme Court.
Assessment
In the context of recent amendments to the Supreme Court and the NCJ, the extensive control by the executive branch on the education and training of judges, structurally and systematically undermines the independence of judges in Poland. Though the position of trainee judges may be a mechanism to increase professionalism of judges, trainees do not enjoy constitutional guarantees because their status and role can be changed by ordinary law. They add a further element to weakening the independent judiciary.