Dismantling Checks and Balances (II): Judges and Prosecutors
Dismantling Checks and Balances (II): Judges and Prosecutors
Abstract and Keywords
After transforming the Constitutional Tribunal (CT) into an active ally of the government, the Law and Justice (Prawo i Sprawiedliwość (PiS)) party in Poland embarked upon the comprehensive subjection of the entire judicial system to the executive, and in particular to the president of the Republic and the minister of justice/prosecutor general (MJ/PG). This chapter discusses how, for this purpose, the National Council of Judiciary (Krajowa Rada Sądownictwa (KRS)) was packed with the party faithful thanks to a changed system for selecting members of the KRS (they are now directly elected by Parliament, rather than by judges). It also deals with how the effect of the new law on the Supreme Court was a brand new court composition with a pro-PiS majority: this was created by combining early retirement for incumbent judges and increasing the number of seats on the Court. The chief justice’s constitutionally guaranteed term of office has been extinguished. It also looks at another statute, on the common courts, that has strengthened the power of the MJ to control court presidents, and hold judges accountable for their verdicts through a new disciplinary procedure. Finally, the chapter looks at how the prosecutorial system (prokuratura) was merged with that of the MJ, with the MJ becoming the ex officio PG, producing a deeply politicized system of public prosecution.
In a lecture delivered in Karlsruhe, on 21 July 2018, by the invitation of her German counterpart, Chief Justice of the Polish Supreme Court Małgorzata Gerdorf gave the best summary of what has happened to the Polish system of justice since the Law and Justice (Prawo i Sprawiedliwość (PiS)) party came to power. The central and most dramatic passage is worth citing at length:
Damage is regrettably extensive and there seems to be no hope for remedy in the near future. The independence of the Polish constitutional court has been destroyed, its judiciary panels manipulated in response to expectations of the governing party. The Minister of Justice is also Prosecutor General. He now holds all instruments allowing real impact on all judicial proceedings, under criminal law in particular. Court presidents report to him; to add insult to injury, he has staffed over one-half of the National Council of the Judiciary with people without constitutional mandates, who now owe him everything. The party machine can crown or destroy anyone and everyone at the whim and will of those in rule. The Supreme Court has undergone a cleansing masked by a retrospect change to the retirement age. The content of vital judiciary-related legislation changes incessantly, within a few days as of the motion date, with no consultations or opinion seeking exercise.1
This chapter offers a detailed account of the developments which have been described in a nutshell in this passage from Gersdorf’s lecture.
The ‘Regular’ Judiciary Under Assault
After the Constitutional Tribunal (CT), the second main target of the populist assault has been the ‘regular’ judiciary. While it was relatively easy to handle a fifteen-person body like the CT, there are some ten thousand judges in Poland. And while it was generally accepted under the ‘old’ CT that the CT had a near-monopoly on constitutional adjudication,2 the elimination of the CT as a device of constitutional review triggered a debate about dispersed, or decentralized, constitutional review (p.97) performed by all courts, US-style. This debate was prefigured by some jurisprudential discussions in Poland after the fall of communism, but conventional wisdom prevailed, under which the conditions of transition necessitated a centralized system of abstract review performed by a robust and activist constitutional court. When the latter has, however, been dismantled and turned into an aide of the government, judges and scholars have returned to the idea of a decentralized and concrete review.
There are some constitutional grounds for such a practice. For one thing, the Constitution proclaims the direct application of the Constitution (Art. 8)—which means that if, in the view of a judge, a sub-constitutional provision clashes with the Constitution, the former should be disregarded and the latter applied directly. For another thing, the Constitution states that judges are ‘subordinate to the Constitution and statutes’ (Art. 178(1)), which clearly refutes the anachronistic view that only statutes are directly binding upon the judiciary. Further, the established and popular practice of ‘concrete’ review by the CT—conducted at the initiative of a judge who has doubts as to the constitutionality of a statute and stays the proceedings until the CT provides an authoritative response to the question—means that judges are acquainted with the idea that responsibility for applying only those statutory provisions that are consistent with the Constitution rests with them. In recent years there have been some examples of a judicial set-aside of statutory rules on the basis of constitutional provisions and values. On the basis of the principle of the direct application of the Constitution, the Court of Appeal in Wroclaw determined that the use of the ‘fruits of a poisonous tree’, as permitted by the code of criminal procedure, is unconstitutional because it violates the constitutional principles of dignity and privacy. According to the Court, the statutory regulation on ‘poisoned tree’ evidence was not binding in this particular case, and so defendants might be finally acquitted.3 More ominously for the PiS elite, more and more scholars and judges expressed their admiration for the idea of decentralized review, as it is compatible with the Constitution and necessitated by the disempowerment of the CT. The spectre of regular judges conducting a review of PiS laws in the process of concrete adjudication provided a special incentive for PiS to fundamentally transform the common courts, including the Supreme Court (SC); however, this was not the only reason.
Regular courts were recalcitrant and not amenable to handing down ‘correct’ judgments in politically sensitive matters, such as the sentencing of the already-mentioned Mariusz Kamiński for abuse of duties as minister in charge of special services, or a court ordering the prosecutor to reopen a case involving the alleged violation of rules of parliamentary procedure by the PIS majority during the lower chamber of Parliament (Sejm) vote on the annual budget Act in 2016.4 In addition, the SC and many lower courts openly sided with the ‘old’ CT during the crisis of 2016. For instance, on 27 April 2016 the General Assembly of the SC adopted a resolution stating that the judgments of the CT are binding even if they are not (p.98) published. (Taking its cue from the SC’s view, several local self-government entities also declared that they would apply the unpublished judgments of the tribunal.) All in all, the PiS ruling elite concluded that the courts may become—or already have become—a countervailing power, which may check and control the legislation and politics of the hegemon. Hence, PiS proposed a comprehensive package of judicial ‘reforms’.
In a sequence of events characteristic of other ‘reforms’, PiS’s legislative proposals were preceded by a well-orchestrated propaganda campaign against judges. All of a sudden, pro-PiS media and in particular public TV channels began publicizing particular cases of alleged corruption or petty offences committed by judges. In one infamous instance, a judge was shown to have stolen a sausage from a grocery store: subsequently it turned out that the judge in question had long been removed from the profession and that she suffered a nervous disability at the time of committing the theft. This was followed by a government-funded smear campaign against judges (big billboards in public spaces), accompanied by top politicians attacking the judiciary. Prime Minister Beata Szydło referred to the judiciary as a ‘judicial guild’ (or ‘caste’) and said that ‘everyone knows someone who was hurt by the judiciary system’.5 The minister of justice (MJ) said that the case law of the SC is directly linked to the communist times.6 This was the prelude to a legislative package.
As will become apparent from a survey of the package in this chapter, none of the ‘reforms’ was addressed against the judicial system’s main failure depicted by PiS propaganda as the principal reason for reforms: that is, excessive delays in the proceedings, often raising a sense of unfairness. This is a universal problem for courts around the world. Interestingly, none of the devices proposed by PiS was related to the promptness of the judicial process, and, on the contrary, some of them will definitely lengthen proceedings and inflict possibly hundreds of thousands of new cases upon the courts (this is the case, for instance, for the so-called extraordinary complaint – see ‘The Law on the National Council of the Judiciary (KRS)’ of this chapter). All these ‘reforms’ have a simple common denominator: they have been designed to change the cadres of the judicial system, and establish stronger control by the political branches, mainly the ministry of justice, president, and both PiS-dominated chambers of parliament over the judicial system personnel. In other words, the ‘reforms’ mean massive purges. This is consistent with Jarosław Kaczyński’s dominant idea that all the wrongness of the old system related to the people who served in it: replace the people with better ones and you will change the system. And ‘better’ means more controllable by the dominant party, more loyal, more in tune with the programme of PiS.
This logic led to three statutes that together make up a comprehensive legislative package on the judiciary. One of these laws was enacted immediately (the statute on common courts of 27 July 2017), while the other two (on the National Council of the Judiciary (Krajowa Rada Sądownictwa (KRS)), of 8 December 2017 and on the SC, also of 8 December 2017), were only enacted after President Duda vetoed (p.99) initial bills on 31 July 2017 and collaborated in the preparation of the final bills. It is no credit to the president that the vetoes were most probably influenced by mass protests against the new laws held in two hundred Polish cities: rather, the bills that he drafted himself were (as will be shown below) just as unconstitutional as the laws he vetoed. (According to Andrzej Rzepliński, the two vetoes were influenced by the persuasion of top church officials who wanted to avoid the escalation of mass protests.)7 Rather than ‘listening to the people’, vetoes were just disingenuous measures to outmanoeuvre democratic activists and at the same time strengthen the position of the president in the electorate without relaxing the umbilical cord connecting him with PiS. They cannot therefore be seen as ‘successes’ of the opposition, as some observers would like to see them.8 Rather, as one astute observer of the Polish political scene suggests, ‘[t]he vetoes marked not a change of heart, but a tactical retreat’.9
Notwithstanding a massive propaganda assault on the courts that preceded the legislative package, and in particular the dominant argument that the legitimacy of courts in society is very low, more detailed studies show that the social perceptions are more positive than the government paints it. For instance, a survey about courts conducted by pollster CBOS in 2017 shows that there is only a slight prevalence of negative views (50 per cent) over positive views (45 per cent) among individuals who have actually had personal experience with the court system—and importantly, less than one-fifth (18 per cent) of respondents based their judgment on their own personal experience, while hefty 54 per cent based theirs on media reports.10 In the same poll, 24 per cent expressed a ‘negative attitude to Polish judges’, with a large plurality (45 per cent) declaring a ‘neither positive nor negative’ attitude to judges.11 Surveys about corruption show the Polish judiciary in a relatively good position (an indicator of 0.86, with 1.00 being an ideal result), compared to the much worse position of the legislature (0.52).12 In addition, ‘hard’ statistics, that is, those based not on perceptions but on actual data from court archives, show that the length of proceedings puts Poland in the middle of EU standards.13 Hence, the evidence used in the propaganda assault upon judges to justify the ‘reforms’ was highly selective and inconclusive, and certainly not related to actual changes included in the legislative package (which, for instance, would do nothing to shorten court proceedings).
The Law on the National Council of the Judiciary (KRS)
The first of the three laws in the judiciary package concerned the KRS, a constitutionally designated body with a key role in judicial nominations. It has the power to nominate all candidates for judicial positions in the nation, and propose them to the president of the Republic (Art. 179 of the Constitution). It is a matter of controversy under constitutional law as to whether the president may reject the KRS (p.100) nominations. Since the 1997 Constitution entered into force and until 2008, presidents invariably accepted KRS proposals under Article 179 of the Constitution and did not claim any competence to influence or reject KRS motions. 2008 brought about a new practice, when in a decision on 3 January 2008, President Lech Kaczyński for the first time rejected the KRS nominations without a legal basis and for political reasons. This case established a precedent and started a long judicial saga that, inter alia, involved the CT’s and the Supreme Administrative Court’s decisions on the lack of judicial competence to control the prerogatives of the president.14
The KRS also has some additional powers regarding the judiciary, namely to safeguard the independence of courts and judges;15 apply to the CT regarding the constitutionality of normative acts on courts and judges;16 adopt a code of ethics governing the judicial profession; express an opinion on drafts of normative acts concerning the judiciary; select a disciplinary prosecutor for judges; and express an opinion in the case of the dismissal of the president of a court.17
From the very beginning of its campaign against the judiciary, PiS considered the judicial component of the KRS to be the main obstacle to its reform. According to the Constitution, the KRS consists of fifteen judges. The remaining members are the chief justices of the SC and Supreme Administrative Court, the MJ, a representative of the president, four MPs ‘elected by the Sejm’, and two senators ‘elected by the Senate’. The Constitution does not explicitly provide that the judges on the KRS are to be elected by the judiciary—it only says that fifteen members are ‘chosen from amongst the judges’ (Art. 187)—but so far it has always been understood that they are elected by the judiciary itself, and, accordingly, the statute on the KRS established a complex mode of elections for the different types and branches of the judiciary. Importantly, the ‘new’ CT judgment of 20 June 2017 that found the statute unconstitutional (and in which some quasi-judges participated) did not object to the very principle that the judges are elected by judges, but only objected to different methods of inter-judiciary elections at different levels of the courts (see Chapter 3).
As said, the principle that the judicial component of the KRS is a representative of the judiciary and must therefore be elected by judges has not been challenged until now. It is also considered to be a European norm. As the Consultative Council of European Judges (CCJE), a body affiliated with the Council of Europe, said in its recent report:
[T]he Committee of Ministers of the Council of Europe took the position that not less than half the members of Councils for the Judiciary should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.18
The same was emphasized by the Venice Commission (VC), which adopted the view that ‘a substantial element or a majority of the members of the Judicial Council (p.101) should be elected by the Judiciary itself’.19 In addition to the principled argument for maintaining the constitutional custom of letting judges elect the judicial component of the KRS, there is also a textual argument from the Polish Constitution: with regard to MPs sitting on the KRS, the Constitution explicitly provides that they are ‘elected by the Sejm’ (and, similarly, with regard to the Senators, that they are ‘elected by the Senate’), so if the Constitution-makers wanted to allow or mandate the election of judges-members of the KRS by the Sejm, they would have said so openly.
In addition, one may observe that the principle that the judges themselves elect the judicial component of the KRS precedes the current Constitution: it was first adopted in December 1989 by the first statute on the KRS in post-communist Poland establishing this institution. This model of the KRS, which goes back to the agreement of the Round Table in early 1989, was later embraced as self-evident by the Constitution of 1997.
This principle of judges electing judges was eventually rejected by PiS in its bill on the KRS, and also by President Duda in his own bill proposed after vetoing the original PiS bill. Both PiS and Duda wanted the fifteen judges on the KRS to be elected by the legislature rather than by the judges themselves, as was the case until 2018. The only disagreement was about the majority needed for their election: PiS proposed a simple majority while Duda proposed a three-fifths majority (i.e. more than PiS currently enjoys), on the basis that it would let the opposition have some influence upon the composition of the KRS. In the end, the law voted on by the Sejm on 8 December 2017 and the Senate on 15 December 2017, and signed by the president on 20 December 2017, envisaged that the fifteen judges in the KRS would be elected by the Sejm by a three-fifths majority, but that if this mode does not result in a full list of fifteen, the remaining members would be elected by a simple majority. This gives the ruling party a decisive say in the composition of the KRS, and indirectly, in the nominations of judges; in effect, it is a return to the proposals initially vetoed by the president. The candidates may be proposed by groups of citizens (minimum 2,000) or groups of twenty-five judges. Then on that basis, each of the parliamentary party caucuses can nominate up to nine candidates, after which a parliamentary committee selects fifteen candidates to be presented to the Sejm.
Taking into account the ex-officio members of the KRS as well as representatives of the president, Sejm, and Senate, this means that politicians elect twenty-three out of twenty-five members of the KRS. A remark by the VC, addressed to an earlier draft, applies well to the law eventually adopted: the mechanism of assuring compromise in the vote for members ‘would not be effective if in the second round candidates supported only by the ruling party may be elected by a simple majority of votes’.20 As the elections of members of a ‘new’ KRS in 2018 have shown, the parliamentary majority now enjoys full, unmediated, and unconstrained power of appointment to the institution that appoints all Polish judges, and the KRS has thus (p.102) been turned into ‘a subservient body to rubberstamp nominations by the Minister [of Justice]’,21 to use the words of Andrzej Rzepliński, ex-president of the CT.
The law also envisaged the pre-term removal of all judges sitting as members of the KRS at the time the law entered into force, despite their constitutionally guaranteed term of office (of four years). President Duda never questioned the unconstitutional termination of the constitutional term of office when he vetoed the initial bill, and this arrangement has been maintained in the statute. In the original PiS version—adopted by Parliament on 12 July 2017 but vetoed by the president on 31 July—the KRS was to be divided into two chambers: a ‘judicial’ and a ‘political’ one. There was a requirement of consensus by both chambers for any binding decision, which would give politicians an extra power of veto against KRS decisions on, for instance, judicial nominations. But even abandoning this idea, the ruling party’s politicians and judges elected by PiS together obtained a comfortable majority on the KRS. The VC stated the obvious: the combination of a new parliamentary method of electing judges to the KRS with the termination of the currently serving members’ terms of office ‘is going to weaken the independence of the Council with regard to the majority in Parliament’.22 In fact, it is an understatement. In conjunction with the new Act on the SC and on the ordinary courts, it amounts to the full capture of the council of judiciary by the ruling party.
The law on the KRS caused a great deal of controversy within the judicial profession, especially with regard to the judicial candidates for membership in the KRS, with ensuing polarization between the large majority of judges critical of the ‘reforms’ and a small minority loyal to the authorities. Professors Adam Strzembosz and Andrzej Zoll, two doyens of the Polish judiciary and legal scholarship, issued a statement in March 2018 in which they boldly affirmed that the new KRS is unconstitutional, and therefore that ‘its decisions by their nature will be invalid’. As a result, the judicial appointments determined by the new KRS will need to be reviewed in the future for their validity.23 Later, in a press interview one of the signatories, Professor Zoll (an ex-president of the CT and an ex-Ombudsman) added that judges-members of the new KRS will one day have to face disciplinary proceedings on the basis that ‘they had agreed to be candidates in elections conducted by the Sejm even though it is not the legislature that should elect them to the [KRS]’; he also expressed a belief ‘that such [disciplinary] proceedings will be held after the alternation in power’.24 As the president of the association of judges (Iustitia) said, only about three to four per cent of all judges supported the legislative changes.25 The dominant view was that the elections to KRS should be boycotted, and the Iustitia even adopted a resolution that any judge agreeing to be a candidate for the KRS would be excluded from the association. The Iustitia promptly acted upon this rule, for instance excluding Ms Dagmara Pawełczyk-Woicka, a newly appointed president of the regional court in Cracow and a KRS candidate (later to be elected a member of the KRS).
(p.103) In the end, only eighteen judges agreed to be candidates, and the newspapers quickly discovered that a large majority of them were judges ‘delegated’ to the ministry (hence subordinate to the MJ) and also new presidents of courts, recently nominated by Minister Ziobro (hence, his beneficiaries). To make matters worse, contrary to the constitutional requirement of the KRS representing courts of all levels, there were no judges representing the SC or the Supreme Administrative Court and no judge from a court of appeal or a military court on the list of eighteen candidates. The whole process of generating candidates was shrouded in secrecy, and the names of supporters were never publicly announced, which confirms the degree of embarrassment and shame that the candidates (and their supporters) must have felt. In this way, one of the main official rationales for the changes, namely to make the appointment process more democratic, has been discarded. What is worse, by making the lists of those who supported and seconded the candidates secret, it is impossible to verify whether each of the candidates indeed had the required number of supporting judges. In particular, it is impossible to say whether the judges elected to the KRS enjoy the support of their peers because no judicial self-government has in any way had an impact upon recommendations for KRS candidates. And after having constituted the new KRS, the KRS itself opposed a motion to reveal the names of supporting judges (the parliamentary motion by the opposition), with some judges-members of the new KRS claiming that it would enable a ‘witch hunt’ in the courts.26
In the end, fifteen members of the KRS were elected on 7 March 2018, and echoing the list of candidates, a large majority of the judges elected were either direct beneficiaries or recent subordinates of Minister Ziobro, thus undermining the very rationale for having the KRS in the first place, which is to protect independence of the judiciary.27 The composition is badly skewed toward lower ranks of the courts. In addition to PiS, only a de facto satellite party of PiS called Kukiz-15 decided to propose candidates (PiS proposed nine and Kukiz six, in an act of collusion aimed at avoiding any ‘surprises’ in the election) with all other opposition parties boycotting the election. Thanks to the boycott, no second round of elections was necessary, and all fifteen were elected with a super-majority.
Immediately after the election, the media featured profiles of the new members, highlighting their unimpressive qualifications and, at the same time, connections to the minister. By way of example: prior to his election to the KRS, Judge Paweł Styrna was appointed a deputy president of the district court (second instance) in Cracow, but had been unsuccessful five times in his applications for promotion, based on the large number of judgments delivered being quashed on appeal. Out of seventy judgments delivered in 2017 by another judge, Mr Marek Jaskulski, reasons for the judgment were produced after the statutory deadline in sixty-four cases, and nineteen of his judgments were quashed or changed on appeal.28 These are judges who are supposed to evaluate the skills and character of candidates for judicial positions.
(p.104) On the day of the election of the new KRS, the incumbent ex officio President of KRS, Chief Justice of the SC Małgorzata Gersdorf resigned from her function in the KRS. There had been some hope among PiS critics that Professor Gersdorf—an ex officio convenor of the inaugural meeting of the KRS—would refuse to convene it on the basis of the new law on the KRS’s unconstitutionality, and because of uncertainties surrounding the names of the supporters of candidates. In the end, after some public agonizing, she decided to convene it, arguing (incorrectly, in my view) that not to do so would amount to an act of civil disobedience, an act that it is improper for a chief justice of the SC to perform. The first meeting took place on 27 April 2018, and it was opened by a short statement from Professor Gersdorf who declared that she had no doubts as to the unconstitutionality of a premature shortening of the terms of previous KRS members and of the election of new members—after which she left the meeting. This gesture did not impress the KRS members who proceeded to select its board and chair, Judge Leszek Mazur. Journalists quickly found out that he is the brother of Judge Witold Mazur who was recently appointed by Minister Ziobro to the position of president of the Court of Appeal in Katowice.29 Similarly, the new spokesperson of the KRS, Judge Maciej Mitera, is a recently appointed (since January 2018) president of the regional Court in Warsaw, having served before as a judge ‘delegated’ to the ministry.
The dilemma experienced by judges in the face of a ‘new’ KRS was not limited to deciding whether to nominate for membership of the KRS, but also whether to apply to the KRS for the office of a judge or for a promotion to a higher court—that is, activate the most essential task of the KRS. Significantly, soon after the constitution of the new KRS, quite a number of judges who had applied to the old KRS for promotions withdrew their applications, probably (‘probably’ because the withdrawals contained no reason for such action)30 on the basis that they did not want to be evaluated by a body carrying the stigma of unconstitutionality. For instance, in one of the first meetings of the new KRS, on 13 June 2018, no fewer than twenty-one old applications were declared to have been withdrawn and the procedure for evaluating these applications extinguished. The dilemma was well captured by one of the judges:
This is a devilish alternative. I can understand the judges who say: let us hold off on it, we shall not appear before this KRS, but on the other hand, many of these judges deserve a promotion. I do not know what they should do.31
One of the high-profile judges in Warsaw, Mr Wojciech Łączewski, said: ‘In full knowledge that the statute on the KRS is unconstitutional but there is no possibility of challenging it because the CT is a fiction these days, I do not intend to apply for promotion.’32 This approach has been supported by some legal scholars. Professor Marcin Matczak opined: ‘The lack of application [for promotion] will be a clear sign that Polish judges do not accept the unconstitutionality [of the KRS].’33
(p.105) The first months of the ‘new’ KRS have shown it to be a fully reliable assistant to the government. In its zeal, it even went beyond its sphere of competence, for instance by adopting a collective opinion about the draft law prepared by the opposition, which would legalize civil unions between same-sex partners. The ideological message was certainly consistent with the government’s official position, but the strange thing was that the KRS has no general competence to provide opinions on legislative drafts in general, only those regarding the judiciary—this bill had nothing to do with judges. When it came to adopting official positions on laws regarding the judiciary, the KRS fully supported the government’s law on the SC in its opinion of 13 July 2018.
In its core activity related to the appointment of judges, the KRS fully supported governmental actions aimed at quickly removing unwanted judges from the SC, including Gersdorf CJ (KRS unconditionally endorsed the government’s line that Gersdorf’s term of office expired in July 2016, despite clear constitutional provisions otherwise), and replacing them with the new ones, submissive to the government. The KRS agreed to fast-track the process of evaluating applications. Contrary to its early announcements that it would meet in September 2018 to consider its recommendations to the president, it unexpectedly decided to meet in late August, and run a parody of the procedure for interviewing candidates. Each candidate was given about ten to twenty minutes for the interview, and the final list of recommendations seemed to everyone to have been pre-approved. In August, the KRS recommended forty persons for appointment, mainly to the two new chambers. Many of the persons recommended are closely linked to the Minister of Justice/Prosecutor General Zbigniew Ziobro or to other PiS politicians, including Mr Kuchciński, the speaker of the Sejm. Waves of KRS recommendations continued in August and September, with the president appointing each subsequent batch of nominees.
In the process of nominations and appointment, an interesting legal matter occurred: the Supreme Administrative Court (SAC), until that time not known for its courage in slowing down the dismantling of the rule of law, suspended the implementation of six nominations by the KRS.34 The suspensions were adopted in response to the motions by unsuccessful candidates who questioned the legality of the entire procedure, by (rightly) claiming that it violated their constitutional right to equal and fair access to public positions as well as their right to fair trial. The SAC ordered on interim measures, demanding suspension of all these nominations until the SAC judgment on merit. The obvious implication was that the president should abstain from appointing the recommended candidates to these positions, but he refused to do so, claiming that, not being a party to the administrative procedure, he is not bound by the judgment on interim measures. In this way he has shown his utter disregard for court decisions—including those by a court which had been so far extremely cautious and unwilling to enter into political controversies.
(p.106) By way of conclusion to this part, it should be said that not only in its design, but also as evidenced by the first couple of months of activity, the KRS (suspended on 17 September 2018 from the European Network of Councils for the Judiciary, based on the assessment that it was no longer the guardian of independence of the judiciary),35 has been transformed from an institution constraining the executive and the legislature in defence of judicial independence into a faithful, unwavering enabler of the government in its feud with recalcitrant judges. And this observation was not lost on judges: in a recent survey among common court judges, ninety-one per cent of judges said that the KRS is ‘more dependent upon political pressure than under the former Minister of Justice’.36
The Law on the Supreme Court
The initial bill by PiS envisaged a scorched-earth tactic regarding the SC: extinguishment ex lege of the terms of office of all judges, with the MJ having the right but no duty to reappoint particular judges upon their request, and appointment of all remaining judges by a ‘new’ KRS. This seemingly outraged the president who vetoed the bill. Whether the outrage was a propaganda trick or a sincere expression of a sense of humiliation by the president, the Presidential bill transferred the power of consent to continue in a judicial position from the minister to the president himself. Further, only those who reached the newly lowered retirement age of sixty-five would have to step down unless their terms were extended with presidential approval. This solution was adopted in the law eventually enacted.
The new retirement age meant that 37 per cent of judges of the SC—and of course, this included the most experienced ones—found themselves in retirement zone, or were compelled to make a humiliating declaration to the president, who maintains discretionary power on the matter: he may refuse the request by a judge to continue beyond sixty-five years of age without giving any reasons. In itself, reducing the age of retirement and effectively shortening the term of office during the term itself may be considered unconstitutional, as has been found with regard to a similar situation in Hungary by the Hungarian Constitutional Court37 and by the Court of Justice of the European Union (CJEU),38 though in Poland effective constitutional challenge is no longer available.
Under pressure from the European Commission, the Sejm introduced cosmetic changes to the regime of retirement in May 2018: now when deciding whether to accede to an SC judge’s request for extension, the president has to seek the opinion of the KRS. Considering that by this time the composition of the KRS had been totally subjected to political will of the majority party, the change does not make any difference and does not diminish the executive’s control over the retirement situation of SC judges. In addition, the opinions by the KRS on that matter are not binding on the president.
(p.107) Out of seventy-three judges of the SC, twenty-seven judges reached the age limit of sixty-five by the time the new law entered into force. Eleven of them retired willingly and sixteen judges expressed a will to continue in office, but there was a significant division within this group: only nine submitted declarations required by the new law, accompanied by medical certificates. Four within this group were subsequently negatively assessed by the KRS while five were accepted. The remaining seven adopted a different strategy: they merely made declarations that, in accordance with the Constitution, which guarantees judicial irrevocability (Art. 180 (1)), they intend to complete their service until the age of seventy. They did not present the declaration in the form of applications to the president (nor did they present the medical certificates required by the new statute) but as declarations lodged with the office of the chief justice of the SC. One of those judges, Stanisław Zabłocki (head of the Criminal Law Chamber), explained later that his declaration is not an application to the president or to the KRS, but merely articulates his ‘readiness to perform the function of a judge of the SC in accordance with the principle of the irrevocability of judges’.39 On 12 September 2018, the president ‘informed’ all of them about their retirement (just like the four who had made declarations in accordance with the new law, but were nevertheless negatively assessed). So the bottom line is that out of twenty-seven SC judges (including the chief justice) who reached the lowered retirement age of sixty-five, only five will continue in their office.
The chief justice is one of the twenty-seven SC judges who reached the age of sixty-five, but her case is special and requires a more detailed description. The extinguishment of the term of office subject to presidential permission upon request is said to also apply to Chief Justice Małgorzata Gersdorf (who turned sixty-five in 2018), notwithstanding the fact that her term of office as chief justice is constitutionally defined as six years (Art. 183(3)), and should therefore run until 30 April 2020. As President Duda explained in a TV interview, the retirement age (brought about by a statute) takes precedence over the constitutional term of office.40 When asked by the journalist conducting the interview whether he himself should worry that, if the opposition party comes to power, they may want to use this precedent and shorten his own term of office, Duda responded that he has a long way to go before reaching the age of sixty-five, clearly failing to grasp the nature of the problem.
This is one of the most striking instances of changing the Constitution by statute. As one commentator noted:
If a parliamentary majority … may, by enacting a statute, at any time ‘recall’ the Chief Justice of SC and in this way influence the functioning of the most important court in our judicial system, no other judge or court in Poland may feel ‘safe’. It produces a serious risk of creating so-called chilling effect among judges … which evidently threatens judicial independence …41
(p.108) The zeal with which PiS attacked Małgorzata Gersdorf, and seemed prepared to violate the express term of office of the chief justice can be explained not only by a personal animosity to herself—known as a strong critic of PiS—but must also have something to do with the fact that the chief justice is, ex officio, the president of the Tribunal of State,42 a special body charged with dispensing constitutional liability for acts committed by top officials in connection with their official duties.
Before the cut-off date of 3 July 2018 (which, according to the MJ and the president, was the last day in office for those judges aged over sixty-five who had not requested an extension) she announced that she intended to complete her term, which ran until 2020, and that she was not going to request permission from the president because it is an unconstitutional condition, both as it creates a restriction on an explicit constitutional term of office of six years, and also subjects the fate of a judge to the discretionary will of the executive branch. The chief justice obtained massive support from her own colleagues: on 28 June 2018, almost at the eleventh hour before the statute-dictated purge, the General Assembly of Judges of the SC declared unanimously (with sixty-three judges participating in the meeting) that she must remain the chief justice until 30 April 2020. The resolution is just one-sentence long and is worth citing:
We, the justices of the Supreme Court … mindful of the oaths of office we made and allegiant to the Constitution of the Republic of Poland, which is the supreme law of the Republic of Poland, state that Justice of the Supreme Court, Professor Małgorzata Gersdorf … shall remain – according to Article 183 section 3 of the Constitution … directly applied under Article 8 section 2 of the Constitution … – the First President of the Supreme Court, heading of [sic] the institution in which we perform our service to the public, by 30 April 2020.43
The second resolution adopted at that meeting states that the provisions of the new statute, which would remove
a large number of judges from the SC … constitutes an obvious violation by the legislature of one of the fundamental guarantees of the independence of the judiciary and will soon significantly disrupt the normal functioning of the Supreme Court. Justices who began their service on the Supreme Court before the Act of 8 December 2017 on the Supreme Court came into force, should continue such service until the age of 70 without any additional conditions.44
The crisis came to its climax, with a good deal of theatrics, on 3 July 2018, which according to the statute was the last day of service for all over sixty-five-year-old judges who failed to make their application to the president for prolongation. On that day, PiS and the president declared that they believed Professor Gersdorf to have completed her term of office, while Gersdorf herself, supported (p.109) by her colleagues on the SC, maintained that she would continue to serve as chief justice. A rather puzzling thing happened on that day: both Professor Gersdorf and President Duda nominated (ostensibly, separately and independently of each other) Judge Józef Iwulski, the most senior judge on the SC (and the president of Labour Law Chamber) as a ‘deputy, during periods of her absence’ (in the language of Professor Gersdorf) or as an ‘acting Chief Justice’ (in the words of President Duda). The difference in nomenclature is significant: under Article 14(2)) of the existing law on the SC, in the part not abrogated by the new law, chief justice may appoint another judge to be her deputy at a time of her absence. In turn, President Duda could have cited the provision related to transitional arrangements under the new (PiS-enacted) law, which mandates the president to appoint an acting chief justice (Art. 111 (4) of the new statute on the SC) for a period before a permanent chief justice is nominated (i.e. before the SC has the requisite number of judges for such a vote). Clearly, however, he could not find any judge on the SC willing to undertake this task, so he simply referred to the same provision that Gersdorf did, but with a clear proviso that Gersdorf’s mission is terminated, so Iwulski was not her deputy but rather an interim successor. Nonetheless the old statute under which Gersdorf nominated her deputy provides no role for the president at all; rather, it is a routine provision about an official (here, a chief justice) appointing a replacement for a limited period of illness or other absence from office. There were no legal grounds for Duda to jump on the bandwagon already set up by Gersdorf, and to say that Judge Iwulski enjoys full confidence of the president.
For President Duda, nominating Judge Iwulski was fraught with legal inconsistencies: Iwulski is older than Gersdorf (he was sixty-six years old on that day), hence he belongs to the group of judges in the retirement zone, and he did not make an application to the president in the procedure provided by the new law, but (as many other ‘intransigent’ judges did) made a declaration of his will to continue, with direct reference to the Constitution. In addition, Judge Iwulski was one of the signatories of two resolutions of the SC of 28 June 2018, already mentioned, including the one declaring full support for Gersdorf as the continuing chief justice. This means that President Duda accepted the continuation in office of a judge who, under Duda’s own law, had his term of office terminated because he had reached retirement age and did not ask the president for the right to continue in office! By using Article 14 of the old law (on standing in for the current chief justice) rather than Art. 111(2) of the new law (on interim successor, i.e. acting chief justice), the president, perhaps unwillingly, accepted that Małgorzata Gersdorf was still chief justice. And to make matters even worse, Duda failed to hand Professor Gersdorf any written declaration regarding her stepping down, even though the law (Art. 39 of the statute on the SC) requires that such a declaration be issued by the president (with an implication that it needs to be countersigned by the prime minister because it does not belong to the constitutional list of the president’s own prerogatives) regarding any SC judge stepping down from (p.110) his/her active duty. It was speculated that this incoherent action by the president was made in order to stop the procedure of infringement against Poland in the CJEU; that is, if Professor Gersdorf was still a chief justice (though her functions are performed by her deputy), what is the point of an infringement action? But this argument is clearly inconsistent with the president’s frequently repeated official conviction that Gersdorf terminated her mission on 3 July 2018.
The following day, 4 July 2018, Judge Gersdorf, surrounded by her colleagues and applauded by hundreds of demonstrators, returned to the SC building, thus symbolically showing her disregard for official statements about the expiry of her term of office. As of the writing of this book, the stand-off continues: Gersdorf claims (including in her conversation with the author of this book, on 26 September 2018 in Warsaw) that she considers herself to be chief justice, and intends to perform this function until 2020, while the government, the president, and the KRS declare that she is a retired judge and has no right to occupy the office of chief justice.
There is one other significant change in the new law on the SC compared to the status quo: under the new statute, the president of the Republic would choose the chief justice of the SC from five candidates (currently: only two) presented by the General Assembly of the SC. This obviously increases the control of the president over the SC, reduces the impact of the SC upon the election of its own chief justice, and opens up the possibility that a judge chosen by the president will only enjoy minimal support from the judges of the SC: if judges have to nominate three candidates, it is likely that candidate number three, considering the number of votes obtained, would have made it to the list with very meagre support.45 The election of a new chief justice, according to the new statute, was initially tied to the condition of filling 110 judicial positions on the SC, which may have taken quite a lot of time, and it meant that the acting chief justice, directly appointed by the president, could have led the SC for as long as the president and PiS wanted because there were no deadlines for the appointment of all 110 judges. What seemed like a clever gambit from the point of view of PiS turned out to be counterproductive, because no one on the old SC would agree to perform the role of acting CJ, succeeding Professor Gersdorf whose term of office was unconstitutionally terminated according to the same SC. In itself, it is a tribute to the integrity of the ‘old’ judges, and their loyalty to the chief justice and to the institution. When the rulers realized this, they rushed through a new amendment to the ‘new’ statute in July 2018 (by which time this was the fifth amendment to the statute), and radically lowered the bar for the number of judges of the SC required to propose candidates to the president. It was decided that two-thirds of the composition of the SC (i.e. eighty judges) may, in a general assembly, adopt a list of five candidates to be presented to the president. It means that they went from one extreme to another in order to tailor the law to suit their (p.111) political needs. PiS politicians made it clear that they made this change in order to prevent the judiciary from blocking the procedure by sending a large number of applications to the KRS, and thus overwhelming it with paperwork.46
At the same time, the July 2018 amendments relaxed the criteria of eligibility to the judgeship of the SC, and also neutralized the effects of an appeal from a negative decision by the KRS regarding an appointment to the SC: from now on, such an appeal to the Supreme Administrative Court will not block the appointment of another candidate to a given seat on the SC, which effectively renders the appeal meaningless.47 In a Kafkaesque arrangement, if the KRS chooses to deem an application inadmissible on ‘formal grounds’, no appeal from such a determination is possible at all, including challenging the KRS’s characterization of inadmissibility as based on formal grounds. Such an administrative decision is then final with no avenue for judicial review of the decision. These hastily adopted changes make it much simpler for PiS to quickly appoint new judges to the SC; all the more so since the criteria of eligibility have been greatly expanded, making it possible for public prosecutors, advocates, and notaries public to apply for seats on the SC, if they are over forty years old and have at least ten years’ professional experience.
In addition, the law envisaged a huge increase in the number of judges on the SC (from 93 to at least 120). Combined with the forced stepping-down of a large number of judges over sixty-five, according to conservative assessments, this created vacancies of about 60 per cent of all judgeships on the SC, to be appointed by the president on the recommendations of the ‘new’ KRS. In this ingenious way, the law produced a brand new composition in the top court, peopled largely by judges selected by the parliamentary majority, with PiS handing itself a decisive control over the SC.
In June 2018, after subsequent amendments to the law on the SC, President Duda formally advertised an initial forty-four positions on the SC, predominantly to new chambers, staffed entirely by new judges. Over two hundred lawyers initially applied but some withdrew their applications, largely under pressure from their professional associations, so in the end 182 candidates applied, of which there were 70 judges of lower courts, 31 barristers/advocates, 38 commercial lawyers, 22 legal academics and 12 public prosecutors. There was a consensus in the legal profession that candidates generally were of a very low quality, often unknown in their professional settings. This was made possible by the lowering of formal qualifications of eligibility, but also by the composition of the KRS (see the section of this chapter, ‘The Law on the National Council of Judiciary (KRS)’), the non-transparent and perfunctory character of ‘interviews’ (lasting about fifteen minutes per candidate), and the general perception that the outcome had been pre-decided by PiS politicians (it was general knowledge that some candidates were ‘blacklisted’ by PiS, and that one PiS MP—a member of the KRS—circulated a list of ‘incorrect’ candidates).48 The list of candidates positively recommended by the KRS contained a number of persons very closely linked to Minister Ziobro, and (p.112) included some persons who had disciplinary proceedings against them. Asked by the media for the reasons why such judges were recommended, the Vice-President of the KRS Wiesław Johann admitted that ‘errors may be committed’ when one acts in haste, but defended the list of recommendations as mostly good, and hoped that President Duda would sift out inadequate candidates.
The action by the KRS was accompanied by an accelerated purge managed by the president. At the time of the writing, President Duda has issued only five positive responses regarding permission to continue in office and nine negative ones, following the KRS recommendations. To give an example of a judge purged by the KRS and Duda, one may look at the figure of Wojciech Katner. Judge of the Civil Law Chamber of the SC since 2009, Katner is a senior professor at the University of Łódź, author of nine monographs, two textbooks, and some one hundred and twenty articles in academic journals. On 12 July 2018 the KRS submitted a negative recommendation to the president regarding whether Katner should judge beyond the age of sixty-five on the basis that (quoting from the justification provided) ‘agreeing to continuation of his position is contrary to the interest of the system of justice, to important public interest, and in particular with rational use of human resources of the Supreme Court and the needs arising out of the caseload in the Civil Law Chamber of the Supreme Court’.49 This rationale simply cites, verbatim, the provision of the law on the SC describing the grounds on which the recommendation by the KRS and the decisions by the president should be made, regarding permission to continue in office.50 The disingenuousness of the rationale provided is manifested by the fact that (quite apart from professional skills and experience of Judge Katner), as the media reported around that time, in the Civil Law Chamber there are actually twenty active judges (and thirty-five judicial positions), and that the backlog has increased as a result of understaffing. As president of that Chamber, Judge Dariusz Zawistowski said, the number of cases of cassation awaiting judicial resolution has risen from about thirty to over a hundred.51
So much for the cadres of the SC. Structurally, the new law brings about some important developments, in particular the creation of two new chambers, peopled by new judges (hence, appointed fully through the newly politicized procedure), including a twenty-judge chamber on ‘extraordinary review and public affairs’ tasked with, inter alia, determining the legality of election results (note the connection between the ruling party having the dominant say in the composition of this chamber, via a ‘new’ KRS, and its interest in adjudicating electoral disputes). As the Venice Commission observes, the result of this design will be that ‘judges appointed by a [KRS] dominated by the current political majority would decide on issues of particular importance, including the regularity of elections, which is to be decided by the Extraordinary Chamber’.52 The second new chamber, dealing with disciplinary proceedings against judges (and other legal professions), is a device to focus public opinion on judicial accountability. It has been widely publicized that the budget of the SC envisages a 40 per cent bonus for judges serving on that (p.113) chamber, but no rationale for such an immense privilege has been ever produced, and the only reason one may think of is creating incentives for candidates to apply to a body viewed with disgust by a large number of lawyers. The chamber has a separate budget, and all budgetary changes made by the president of the SC will require consent from the president of this new chamber. What is more, the budget is huge: roughly one half of the entire SC budget, even though it will only have sixteen judges out of the projected 120 in the entire SC.53 The president of the chamber, in addition to its enormous budgetary powers, will also possess the powers of the chief justice of the SC vis-à-vis his/her judges: they will be subordinate only to him/her, rather than to the chief justice. It all shows that the new disciplinary chamber will constitute, for all practical purposes, a separate court within a court.
Associations of judges—such as Iustitia and Themis—appealed to judges to boycott the call for nominations to the new chamber (just as they had earlier appealed to boycott the new KRS), but PiS had anticipated this problem and had included a provision that public prosecutors with at least ten years’ experience of office are eligible to become judges of the SC in the new law on the SC. Thanks to this new rule, PiS may recruit new SC judges (in particular, to the disciplinary chamber) among prosecutors subordinate to the MJ. As prominent legal commentator Ewa Siedlecka notes:
The proposal [to become a judge of SC] is very tempting [for prosecutors]: much less work than they have now, and a salary which is 40 percent higher than that of the other judges of the SC … In this manner, prosecutors who are habituated to hierarchical subordination and compliance with their superiors’ commands will become disciplinary judges [of the SC].54
In addition, both new chambers will have panels including lay judges, elected by the Senate (a panel will consist of two professionals and one lay judge). The only eligibility criterion is a high school certificate, age between forty and sixty, and non-employment in a state institution as well as non-membership in a political party. This mode of recruiting lay judges assures, again, the dominant influence of PiS, which has a comfortable majority in the Senate. There is no other explanation for including lay judges in the SC, for the first time in its history, which is inconsistent with the role of the SC as a court ‘of law’ and not ‘of facts’, dealing normally with extremely complex legal issues. The procedure of recruiting lay judges has so far been a big fiasco: by the final application deadline of 24 May 2018, only nineteen candidates had applied for thirty-six seats. After initial hearings in the Senate (boycotted by the opposition), only thirteen have been vetted as meeting the formal criteria.
In his new version of the law on the SC, President Duda granted himself considerable powers of control over the SC, including 1) the right to appoint the chief justice (the prerogative already held by the president, but now extended because he will be able to choose from five rather than two candidates presented to him (p.114) by the assembly of judges of the SC), 2) the discretion to reappoint a chief justice for a second term, 3) conferral of the internal rules of functioning upon the SC, and 4), as already mentioned, the power to grant an extension of the term of office to judges who have reached the age of sixty-five. The vetoes and the resultant presidential amendments to the law were therefore entirely self-serving and concerned reallocation of executive powers of control over the SC from the MJ to the president.
A clearly populist innovation, proposed by the president and incorporated into statute, is the new appellate instrument—the ‘extraordinary complaint’—in addition to the three stages of appellate measures already existing in Polish law. This type of appeal may be lodged against every final judgment over the last twenty years (with very few exceptions, such as judgments concerning divorce) during the transitional period of three years, and over the previous five years after the transitional period. A minor change to the regime on extraordinary complaint was introduced in May 2018, in the hope that it will placate the European Commission: the list of officials entitled to initiate the procedure has been narrowed from eight to two, namely the prosecutor general (PG) and the Ombudsman. But this only applies to judgments handed down before the law’s entry into force; as far as future judgments are concerned, the list of authorized initiators is much longer.55 In effect, it means that almost any legally binding judgment dating back to the time of the introduction of the new Constitution of 1997 can be reopened, and will be considered again by judges of the SC appointed by the ruling party (via its control over the KRS), with participation of lay judges appointed by the Senate with the votes of the majority party. Critics note that, in addition to being redundant (there are already some instruments of special appeal in Polish law, such as cassation), the new procedure will possibly flood courts with hundreds of thousands of cases, resulting in delays in judicial proceedings much worse than the current ones, which figure in governmental propaganda as the main rationale for the ‘reforms’. The new instrument was presented by the president as meeting justice in the popular sense, but in reality it will greatly undermine the sense of judicial stability, res judicata, and in consequence, the rule of law.
The new law on the SC created severe moral dilemmas for the older judges who faced a choice: either make a request to the president for an ‘extension’ beyond a newly lowered retirement age or accept the inevitable and step down. As with so many times in Polish history, arguments of high principle were mixed with pragmatic considerations, with no self-evidently good choices. On the one hand, it was argued that the duty of a judge is towards the citizens, and that judges placed in the highest court should continue to perform their role as long as the circumstances allow. A ‘boycott’, some argued, would be immoral and would be tantamount to surrendering professional duty in exchange for a high pension while not having high stress connected with performing judicial duties. If the president refuses an extension, so be it, and let him carry the odium of the decision, the argument (p.115) went.56 On the other side of the argument, it was maintained that judges should not humiliate themselves and subject themselves to the president’s will, while knowing full well that the president’s prerogative had been established in a statute that is unconstitutional.57 As a judge of a district court puts it, empathizing with his colleagues in the top court, ‘The matter is not all that simple because one has to choose between a more honourable solution, which is to retire, and a more pragmatic one, which is to remain in active service. The latter solution would be chosen not for one’s own benefit but in order to save the current acquis of the Supreme Court’.58 Discontent among judges reached such a level of intensity that the SC itself, in an unusual resolution of its General Assembly, found it necessary to declare (on 16 January 2018) that any decision of a judge regarding retirement or application to the president for a right to continue in office should be ‘respected’.59 In the same resolution, the SC stated, however, that the statutes on the SC and on the KRS, adopted by the parliament and signed by the president, are ‘in many respects contrary to the binding norms of the Constitution of the Republic of Poland and violate the principles of tripartite division of powers, independence of courts, judicial independence and irrevocability of judges’.60
The law on the KRS and that on the SC have to be considered jointly: their cumulative effect is that the judges elected by judges-members of the KRS, who are in turn elected by the politicians, will occupy a large number of seats on the SC (perhaps around 60 per cent), including all seats on the new special super chambers of the SC. This gives the parliamentary majority and the president (who obtains large discretionary powers over the composition of the SC, enhanced power over the selection of the chief justice, and the power to adopt the rules of procedure of the SC) great new controls over the apex court of the Polish judicial system.
The Law on the Organization of Common Courts
The statute of 27 July 2017, the only one in the package that was signed by the president without vetoing it first, gave the MJ/ PG additional great powers in respect of the national judicial system, in addition to the already expansive powers that the minister enjoyed. Before the new law entered into force, the minister had the power to assign new judges to individual courts; establish divisions of courts; establish or abolish courts; determine territorial jurisdiction areas; authorize transfers of judges to other courts or secondments to other state institutions; request disciplinary proceedings against a judge, as well as lodge an appeal against the decisions of a disciplinary court, etc. The new law put the court system under the effective control of the MJ to an even higher degree, in particular by giving the MJ/PG the power to appoint and dismiss the presidents of all courts within six months of the law’s passage. The MJ could exercise this power to extinguish their previously set terms, without the need to give any reasons and without having to take (p.116) into account the opinion of the general assembly of judges of the affected court. Under the earlier law, the MJ had to obtain the approval of the general assembly of judges of the relevant court, or in a case when such approval was denied, of the KRS; if the latter also refused a candidate, the minister had no authority to appoint him/her. In practice, it meant that presidents of courts were appointed upon the recommendation of judges themselves.
The new law ended this judicial control over presidents of courts, and the Minister of Justice Mr Zbigniew Ziobro has enthusiastically made use of this new opportunity, replacing some one-fifth of all the senior management of all courts (158 out of 730 court presidents and vice-presidents).61 The bare statistics do not reflect the depth of the changes, which is better revealed by their structure: presidents in ten out of eleven appellate courts were replaced, and one should bear in mind that the appellate courts exercise administrative control over district courts. Even the form of discharge was undignified: the decisions were very often sent to courts by fax or delivered by couriers, and the process lasted until the final hours of 12 February 2018, which marked the end of the transitional period.
According to some commentators, due to the depth of the purges this law turned out to be the most important of the three reforms, even if it attracted the least attention.62 The breadth of purges took many judges by surprise. After the period of discharges without grounds by the minister ended, Iustitia, the association of judges, declared: ‘We express our thanks to all [court] presidents who were discharged, and we remind all new court presidents that their promotion is based on provisions which are contrary to the Constitution’.63
After a transitional period of six months, the MJ has maintained the power to dismiss court presidents under vague standards of ‘serious or persistent failure to comply with the official duties’ or ‘other reasons which render remaining in office incompatible with the sound dispensation of justice’, that is, on easily manipulable grounds to suit the minister’s wishes. Under a cosmetic amendment brought about in April 2018, however, the MJ can only do so with the approval of the court’s college (kolegium) and of the KRS. The change is generally positive, but considering the composition of the ‘new’ KRS, is not much of a change in reality, given that it comes after a massive purge in top court positions, unconstrained by any requirement to consult with the KRS. In addition, court ‘colleges’ have been redesigned to enhance the role of the MJ: so far they have consisted only of judges elected by their colleagues, but now they include judges appointed by the MJ to the position of president and the most senior vice-presidents of the courts, hence judges dependent on the MJ.64 In addition, by July 2018, amendments to the law on common courts greatly reduced the competences of the colleges. For instance, the power they had so far to consider complaints by judges regarding the court president’s decisions concerning allocation of tasks have been transferred to the newly politicized KRS. In addition, the quorum requirement for college decisions was abandoned so that from now on, a college consisting of the president and vice-president (p.117) of a court can take a valid decision. Overall, the changes in the top positions of the courts were badly received by judges: in a recent survey only 12 per cent of judges said that they have a higher confidence in their new court presidents, while 45 per cent trusted the old presidents more.65 New court presidents have therefore been perceived as meeting the minister’s, rather than their colleagues’, preferences.
Control over the appointment of court presidents is a very important power if one realizes that, in Poland, court presidents have tight control over judges in their courts and play an important role in the case-management process. In particular, they assign judges to divisions and set out their duties, which gives them the power to ensure that ‘unreliable’ judges will not deal with politically sensitive issues, such as in criminal law. They also assign and replace judges hearing a case, and may alter the composition of a judging panel. How this change operates in practice, was revealed immediately after the new statutory regulation entered into force. Judge Waldemar Żurek, generally considered to be one of judges most hated by PiS (and a former spokesperson for the old KRS), has had his responsibilities in the Cracow District Court radically modified against his wishes by a new court president, Ms Dagmara Pawełczyk-Woicka, recently appointed by Minister Ziobro. He was transferred from an appellate chamber of the court to a first-instance chamber, which is a de facto demotion for a judge. As one legal commentator observed, this is just a symptom of a more general trend: regular judges will have to appeal to a ‘body they do not trust’ (the new KRS) against these types of decisions by their superiors: ‘What will they do if it turns out that the sole purpose of a transfer of a judge to a different court department is to remove them from a case which, for some reason, politicians consider important?’66
Żurek’s case is not the only one to show that the minister-appointed presidents of courts have understood the political tasks expected of them very well, and that they have complied with the minister’s wishes. As an example, one particular case is meaningful: a judge of a district court in the north-eastern town of Suwałki was subjected to judicial disciplinary proceedings by a newly appointed president of his court in a politically sensitive matter. The case concerned a peaceful demonstration by members of the Committee of Defense of Democracy (Komitet Obrony Demokracji (KOD)) during an event that formed part of a supplementary election campaign in March 2016 for Ms Anna Maria Anders, a PiS senatorial candidate (eventually, successfully elected to the Senate from the Suwałki district). One of the protesters was charged with an alleged physical assault against a minor during a skirmish, and Judge Dominik Czeszkiewicz was in charge of the court proceedings, which began on January 2018. The PiS put the pressure on for a speedy and exemplary punishment, and the prosecutors were unhappy about an alleged delay in setting the date for a trial by the judge (to be exact, eight days later than the prosecutors demanded). Eventually Judge Czeszkiewicz acquitted the defendant for lack of evidence, but the decision was quashed by the court of second instance, and remanded for reconsideration by the district court. (In the end, on 23 May 2018, (p.118) the court punished the defendants but abstained from execution of punishment—an arguably bizarre judgment.) The newly appointed (by Minister Ziobro, under the new statute) court president Jacek Sowul (incidentally, the same judge who had quashed the first instance sentence) initiated a disciplinary case against Judge Czeszkiewicz, for an alleged procedural error in setting the trial date with undue delay. The matter became a cause célèbre in Poland, and showed clearly that the new presidents of courts are willing to comply with the minister’s political expectations.
There were other cases of that type.67 Retired judge Małgorzata Kluziak, who agreed to act as counsel for Czeszkiewicz in the disciplinary trial against him, said: ‘There have not been situations so far whereby the minister has influence on the appointment of the presidents [of courts], who then can decide whether to lodge disciplinary actions in proceedings against judges’. She added, addressing a journalist: ‘You should realize that in this disciplinary proceeding the prosecutor is a disciplinary plenipotent elected by judges, but at every stage of disciplinary proceedings the spokesperson can be replaced by the Minister of Justice if he considers that the general direction of proceedings clash with his own expectations’.68 In the end a disciplinary judge discontinued the disciplinary procedure at the end of May 2018.69
The new law introduced a new disciplinary hierarchy among court presidents, with the MJ on top. Each higher court’s president may issue a critical notice about the president of a court lower in rank in his/her area, with the minister having the power to uphold or dismiss such a ‘notice’. Furthermore, the MJ himself can issue such critical remarks. In both cases, the MJ has the power to reduce the allowance linked to the post of president. Furthermore, all presidents of courts of appeal must submit to the MJ annual reports, with the minister entrusted with ‘grading’ the reports, and depending on the grade, the minister may reduce or increase the court president’s allowance. As the VC observed, as a result, ‘all court presidents become a part of a pyramid, with the [MJ] on top. The Minister performs the function of the highest disciplinary authority in the “chain of command” composed of court presidents’.70 The minister’s power to interfere with court presidents’ salaries based on his evaluation of their work, without the participation of the judiciary in the process, is a blatant interference with judicial independence.
There have also been acts of harassment and persecution carried out by the executive and the prosecutor’s office, which have specifically targeted the most outspoken judges protesting against the reforms. A true bête noire of the minister and his entourage turned out to be the already mentioned Judge Waldemar Żurek, of Cracow, who was also a spokesperson of the KRS (in its previous iteration) and the spokesperson of the Cracow Regional Court. The newly appointed president of the latter court immediately dismissed Żurek from his function as a spokesman, but the assembly of representatives of judges of that court undertook a robust defence of their dismissed colleague. In a strongly worded resolution, they listed a number of intimidating actions undertaken by the prosecutor’s office and by the Central (p.119) Anti-corruption Bureau (Centralne Biuro Antykorupcyjne (CBA)) against the outspoken judge: these actions included the CBA questioning of Żurek’s neighbours and his tax adviser, the interrogation of the judge’s elderly parents and his wife, and the reopening of an old and long-closed case against Żurek concerning his financial disclosure declarations, etc.71 Clearly, the aim was to produce evidence to discredit the judge.
The same resolution by Cracow judges provides a rare insight into a number of actions carried out by the PG against recalcitrant judges, and these actions go beyond the ad personam attacks on Judge Żurek. As the judges declare, several of their colleagues both in Cracow and elsewhere in Poland have seen criminal or disciplinary proceedings launched against them by the prosecutor’s office on the basis of the substance of their judgments. For instance, two judges of the court in Szczecin (Judges Agnieszka Poświata and Małgorzata Czerwińska) had a criminal case brought against them by the prosecutor’s office because they had denied the prosecutor’s motion for the provisional arrest of former members of the board of a chemical plant. Another case cited in the resolution is a criminal case pending against a Cracow judge, Agnieszka Pilarczyk, in connection with her conduct as a judge in a case of an alleged medical error concerning the late father of Minister of Justice Ziobro. Similarly, in September 2016, Deputy Minister of Justice Patryk Jaki initiated a disciplinary procedure against Judge Alicja Fronczyk of the Warsaw Regional Court, in connection with her conduct in a civil case against himself.72 This is worth highlighting: rather than restricting themselves to normal appellate procedures, prosecutors and members of the executive branch now resort to disciplinary or even criminal actions against judges who hand down judgments disliked by the MJ/PG.
The use of formal disciplinary proceedings against judges as a reprisal for judicial decisions has accelerated over time, creating a strong chilling effect upon judicial functions, and de facto establishing the political control of judges. For instance, on 20 September 2018, the deputy disciplinary prosecutor questioned Ewa Maciejewska, a judge of the Regional Court in Łódź, for over two hours after Judge Maciejewska decided to refer a question to the CJEU as to whether the new disciplinary proceedings were compatible with EU law.73 After the questioning, Judge Maciejewska said that it ‘verged on the breach of a judge’s professional privilege’, and that ‘the way it was carried out confirmed her concerns over the political pressure on judges’.74 In a similar action on 14 August 2018, the deputy disciplinary prosecutor summoned Judge Igor Tuleya of the Regional Court in Warsaw in relation to his judgment in a case involving opposition MPs who had filed a complaint about their exclusion from a parliamentary session in December 2017.75 Judge Tuleya is among the judges most hated by the executive: he is a vocal critic of the reforms, and just like Judge Maciejewska, he had also submitted a request for a preliminary ruling from the CJEU, asking whether the legislation removing guarantees of impartiality in disciplinary proceedings against judges is consistent with EU (p.120) law, and in particular with Article 19 of the Treaty on European Union, regarding the member states’ obligation to ensure remedies sufficient to ensure effective legal protection. (For more on preliminary questions to CJEU from Polish judges, see Chapter 8.)
These actions were partly made possible by the radical changes to disciplinary proceedings against judges. The changes enabled the minister to affect such procedures and thus influence the judges’ conduct. Before the change, only a judge could be a disciplinary plenipotent (rzecznik dyscyplinarny, i.e. an equivalent of a prosecutor in disciplinary proceedings) in disciplinary cases against other judges, and the minister was only competent to make non-binding recommendations as to the need to initiate such a procedure in a given case. The new law76 made it possible for public prosecutors—that is, officials directly subordinate to the MJ/PG—to perform that role. They will now be formally obliged to initiate a case whenever the minister demands it, even if the case was initially discontinued. The minister now has the power to appoint a ‘disciplinary plenipotent’ and his/her deputies; he needs to ask the KRS for advice but the advice is non-binding, and in any event, the KRS is now fully compliant with the will of PiS. This, in addition to the fact that the minister has acquired the power to nominate judges to disciplinary courts means that the minister ‘appoints the person who presents the accusation in disciplinary cases, and also judges who decide such cases’.77 The appointment of several judges by the MJ to the position of ‘disciplinary judge’ without their knowledge and consent78 quickly resulted in numerous protests by the judges concerned, who only found out about their appointment ex post facto, and who also found out, to their bewilderment, that the new law does not provide for any right of appeal against such an unwanted appointment.
There are many other disturbing aspects of the newly revised procedure for disciplinary proceedings against judges, including a provision that will make it possible to carry out a disciplinary case even in the justified absence of the judge concerned and his/her counsel,79 which is a blatant violation of the right to defence. Equally inconsistent with the right to defence is a provision that a request by a judge to have a legal representative appointed by a disciplinary panel due to the defendant’s illness does not stay proceedings, which in practice means that the procedure may be concluded before the legal representative takes up his/her functions.80 There is also the possibility of using evidence obtained without judicial control and even in violation of the law, including evidence obtained as a result of operational control of telephone conversations.81 All in all, the executive branch has obtained huge powers to indict judges in disciplinary proceedings. As one prominent Polish judge said: ‘All disciplinary proceedings [against judges] will be de facto managed by one person, i.e. the Minister of Justice … With the provisions constructed in this way, it is clear that when political will is present, a judge can be indicted instantly, and removed from office.’82 Finally, disciplinary appeals are to be considered by a new chamber of the SC which, as already explained, has been (p.121) entirely composed of new judges elected by the ‘new’ KRS, the majority of whom are persons close to the MJ. The president of the new chamber will be appointed by the president of the Republic. Appeals will be considered by judges accompanied by lay judges, elected by the Senate, dominated by PiS.
The new law also lowers the retirement age for judges from seventy to sixty-five, but the MJ has acquired the power to extend the term of office beyond retirement age, with the law not specifying the length of time for which such an extension may be granted, thus allowing for a discretionary power to refuse an extension or to only grant a short-term extension, making the judge vulnerable to pressure.83 As one can see, this is a mirror image of the president’s prerogative vis-à-vis SC judges. After the new law entered into force, several known cases have arisen where the MJ has refused judges’ applications for renewal beyond the new retirement age, without giving any reasons.84 The subtitle of a newspaper article, ‘Judges at the mercy of the Minister of Justice’, summarizes the state of affairs in the ‘transitional’ period.85 By 20 December 2017, only two months after the new law entered into force, twenty-nine judges received a negative response to their request to continue at work, with no reasons provided. According to Deputy Minister for Justice Łukasz Piebiak, with responsibility for judiciary issues in his portfolio, about a third of all judges requesting an extension are likely to receive a negative decision from the minister.86 In April 2018, however, under pressure from the EU Commission, a change was introduced: the new retirement age became uniform for men and women at the age of sixty-five (initially, it was sixty for women). Each judge approaching that age may make a declaration of their intention to continue in the job, and these declarations will be considered by the KRS, which has obtained the power of making final and binding decisions on the matter.
The lowered retirement age created a high number of judicial vacancies to be filled by the newly politicized KRS. Over the two years directly preceding the new law, the MJ deliberately failed to propose new judges in proceedings before the KRS under its previous institutional design, the result of which was that some six hundred to seven hundred judicial positions were kept vacant. When added to the several hundred judges currently working in the ministry of justice (as ‘delegated judges’), this amounts to about one thousand judicial positions (10 per cent of all judges) waiting to be appointed now that the executive has obtained effective control over the KRS. The vacancies were advertised, wholesale, after the new law’s entry into force. To begin with, in January 2018 the minister advertised over four hundred positions to be filled according to the new rules by a ‘new’ KRS.87 In the meantime, however, an absurd situation arose: while the officially avowed reason for judicial reforms was to increase the effectiveness and efficiency of judicial proceedings, the effect of transferring a large number of judges to the newly established conditions of retirement and refusing their requests to continue, hugely exacerbated the shortage of judges.
(p.122) This brings us to the issue of the executive branch’s control over judges at the commencement of their careers. The dominant profile of new judges (in addition to the barristers and law professors who are also eligible) is that they are alumnae of the National School of the Judiciary and Public Prosecution in Krakow. Set up in 2009, the school is under the full control of the MJ who appoints its director and the board of supervisors, and can veto the appointment of any lecturer. Appointed by Minister Ziobro in 2016, the current director is his former deputy minister. The MJ appoints graduates to the position of junior judge and, after a few years in that position, they may apply to become full judges. The MJ at this point has a power of veto, and if he does not exercise it, the application is subject to recommendation by the KRS before it goes to the president of Poland for a final decision. Two authors who recently discussed the path of a judicial career in Poland summarize it in this way: ‘[T]he minister of justice has power over his education, over his appointment as a junior judge, over his court presidents who manage his work; the minister can punish him and has a lot of influence in disciplinary cases. The Minister is a member of the [KRS] and a parliamentarian of the governing majority, which chooses the majority of the [KRS]’.88
Despite the avowed rationale for the ‘reform’ of courts, none of the changes translates into visible improvement in the effectiveness of the courts, especially as far as the length of proceedings is concerned. The only evident outcome is the ‘revolution in cadres’ and the further subordination of judges to the MJ. The alleged revolution in assigning judges to particular cases, which is supposed to be managed by random allocation, is a big unknown because the algorithm that controls the assignment has never been revealed, and many judges express scepticism as to whether it indeed prevents individual control by presidents of the courts.89 One thing that is known is that the algorithm also has some other basic defects—for instance, it does not distinguish between complex, time-consuming, and easy cases.90 In any event, the idea of random allocation has been largely undermined by an amendment of July 2018 that provides for the right of a court president (practically speaking, the minister’s confidant) to change the composition of a panel determined by random allocation, at any moment up to the first session of a trial. So court presidents, not a lottery, have the final say on the composition of panels to decide each specific case.
The only thing that is clear and certain is that, from now on, both admission to the judiciary and progress of judicial careers depends on politicians. The consequences for judicial impartiality and independence are already visible. One significant example is a case concerning a traffic accident. On 10 February 2017 the armoured car carrying Prime Minister Beata Szydło collided with a small passenger car. The event immediately hit the headlines, largely due to awkward propaganda attempts by the government aimed at blaming the driver of the other car, probably on the basis of a theory that, if the prime minister’s driver was at fault, it would somehow badly affect her reputation. Normally, this kind of case would be a (p.123) routine, minor issue to be decided by the lowest court. It turned out, however, that a judge of the local court in Oświęcim (where the accident happened) asked to have the case transferred to a higher court, based on the case’s alleged legal complexity. This rationale was clearly disingenuous and the only explanation for the bizarre decision was that the local judge was simply worried about his judicial career prospects if he handed down a judgment contrary to the government’s expectations.
Perhaps this kind of judicial opportunism may happen everywhere. What mattered here, however, was that the local judge’s concerns were perfectly justified, considering the politicization of decisions about the status of judges in Poland. As an experienced judge from the Regional Court in Łódź observed: ‘So far, judges could have been concerned about criminals, media pressure, and their colleagues’ opinions. Now they are concerned about what politicians will think of them. This is the price of making the judiciary dependent upon the legislative and executive branches.’91
In summary, as a result of legislative changes, politicians of the ruling party have acquired immense control over the judiciary. Politicians make decisions on 1) the composition of the KRS, and hence indirectly about who may be appointed to a judgeship (this is determined by a parliamentary majority); 2) the appointment and discharge of presidents and vice-presidents of all courts (MJ); 3) which judge is ‘delegated’ to the ministry of justice (MJ); 4) which judge is delegated to particular courts (MJ); 5) who may continue as judge after reaching the retirement age (president or MJ); 6) which courts may be established or extinguished (MJ); 7) who may be elected as lay judges in the SC (this is decided by the Senate); 8) what the budget is of any particular court (MJ); 9) who sits on the panels for disciplinary suits against judges (MJ); and 10) how many judges there should be on the SC, the division of the number of judgeships between its particular chambers, and the internal organization of the SC (president). These are considerable powers, decisively upsetting the idea of the separation of powers and mutual checks and balances. It also renders absurd talk about strengthening judicial independence. And, despite the avowed rationale for the changes, namely (in addition to its effectiveness) to improve public respect for the judiciary, the effect has been the complete opposite: surveys show that the ratio of those who do not believe that the courts are fully independent has grown, from 2017 to 2018 (that is, in the period of reforms) by a huge 9 per cent, from 38 to 45 per cent of respondents.92 This perception is certainly shared, even more consensually, by the judges themselves. According to a recent survey, some 90 per cent of judges believe that after the reforms of 2016–18, Polish courts are ‘more politicized’ than before; about 30 per cent of judges have heard about specific instances of political pressure upon judges, while 15 per cent have experienced such a pressure themselves.93
The three judiciary-related statutes enacted by the PiS majority contain many very questionable features, as listed, but their truly nefarious effect is produced by accumulation. The new laws create a system in which the threat to the (p.124) independence of the judiciary in one provision in one statute is amplified by another provision of the same or another statute. For instance: the lowering of the age of retirement in the statute on the SC combined with the new composition of the KRS allows for a large influx of politically dependent and vulnerable judges to the SC; the creation of two new chambers of the SC entrusted with politically sensitive matters (including election results) is compounded by the participation of lay judges in those cases, elected by a simple majority of the Senate. A possible measure for controlling the executive in one act is disarmed by a measure in another act; for instance, the power of the KRS to control the ministerial dismissal of a court’s president is weakened by the political composition of the KRS and the requirement of two-thirds majority of votes for such a decision, which is highly unlikely to be obtained.
A cumulative effect also arises from the interaction of the judicial package with other statutes, including the new law on the public prosecutor’s office. This act will now be discussed.
The Law on the Public Prosecutor’s Office (prokuratura)
The major function of the new law on the prokuratura of 28 January 201694 was to merge the hitherto separate positions of the MJ and PG, and to endow the newly merged position with enhanced, substantial prerogatives. The 2016 law put an end to the principle of the independence of public prosecutors, which was the declared aim of the earlier law of 2009.95 In contrast, the new law, tailored specifically to the ambitions of Minister of Justice Zbigniew Ziobro, was defended on the basis of the need for effective management and centralized subordination within the overall system of public prosecution. The system of the public prosecutor’s office was incorporated into the executive branch and explicitly politicized, with its head being a member of the government.
The new competences of the PG/MJ mean that he can now intervene in prosecutorial investigations at any stage, and give orders regarding specific cases. He can transfer cases from one prosecutor to another, change and annul a decision of any subordinate public prosecutor, inspect documents collected during the course of any preparatory proceedings, reveal details of non-final investigations to public authorities and to ‘other persons’ (including media), etc. As a journalist summarizes:
Zbigniew Ziobro has prepared a law which allows him to do anything which might have been illegal or legally doubtful under the previous PiS rule [in 2005–7]. He may show the files to whomever he wants. He may publicly reveal selected pieces of the files. He may control every prosecution and is immune to charges of influencing and affecting the independence of prosecutors. … As prosecutor general, he may change every decision of every prosecutor. He also has informal (p.125) means of pressure by which he may compel any prosecutor to do whatever the PG wants him or her to do.96
As an example of such informal pressure, there is the new, legal possibility of delegating any prosecutor to another office, at a lower hierarchical level and far from the prosecutor’s place of residence for up to twelve months of the year (which means, de facto, permanently). Several prosecutors (no fewer than 200, according to Lex Supra Omnia, the association of prosecutors) who appear to be unwilling to sheepishly follow any requirement issued by the PG have been subject to such involuntary transfers.97
This is a degree of interference by the MJ unknown to any other European system. As the VC observes, ‘Even if there are a few systems [in Europe] where the Minister of Justice can give instructions, the Polish system stands out because of the competence of the Public Prosecutor General to act personally in each individual case of prosecution … ’.98 In connection with the law on common courts, already discussed, and in particular in light of the MJ’s increased powers over court presidents (who have a strong influence on the composition of panels in their courts), the merging of offices means that a party to the proceedings (qua a public prosecutor subordinated to the PG) will at the same time have huge control over judges (qua the minister). Further, having obtained, in the new law on the SC, a right to initiate a procedure of ‘extraordinary review’ (qua the PG), the same person will have a strong say over who sits in the new, super chamber of the SC that will consider these complaints (qua the minister, a member of the ruling coalition with a decisive say on the composition of the new SC chamber, and also an ex officio member of the KRS). In sum, the PG, who is an active politician as a result of the merger with the office of minister, has total authority regarding the prosecutorial system. Arguably, this is a power unparalleled in public prosecutorial institutions in democratic states elsewhere.
Incidentally, to an outside observer, a clause allowing the PG to reveal operational information to public authorities and other persons may sound puzzling—who are ‘the other persons’ whom the PG may wish to inform on cases processed by public prosecutors? The puzzle disappears if one notes that Zbigniew Ziobro, who was also MJ under the first PiS government in 2005–7, allegedly discussed specific, politically sensitive cases with the leader of PiS, Jarosław Kaczyński, who had no legal right at the time to be informed about ongoing investigations. Now this right has been acknowledged in the statute, private discussions between the PG and his political superior will no longer carry the stigma of illegality.
The merger of the offices of PG and MJ is also in direct contravention of the Constitution, which forbids public prosecutors (inter alia) from also being MPs, in order to attempt to prevent the overt politicization of the office. But the PG, qua MJ, is a political official and an MP. Defenders of the new law claim that PG is not a prosecutor within the meaning of Art. 103(2) of the Constitution,99 but this is a (p.126) disingenuous defence. For one thing, the new law occasionally refers to the PG as a public prosecutor (e.g. in Art. 1(1)); for another, the whole point of the merger was to improve the efficiency of the prosecutor’s office by including it in the executive branch. If the PG is not a prosecutor, the rationale for the merger largely collapses.
In the two years since the law’s entry into force, changes within the prosecutor’s offices have been comprehensive and deep. The structure has been turned into a military-like system, with submissive prosecutors promoted to higher offices (without any competitive process and in a purely discretionary way, contrary to the practice before 2016) and rewarded with huge financial gains, while recalcitrant ones are punished with demotion (in the official language, ‘delegation’) to lower positions and often to offices far away from their place of residence.100 In order to facilitate these changes, the names of particular levels of the prosecutorial institutions have been changed (e.g. the central level Prokuratura Generalna has been replaced by Prokuratura Krajowa) even if the structure remains the same. This has allowed Zbigniew Ziobro to appoint, reappoint or dismiss whomever he likes in the entire system. The structural change was in many cases fictional, for the real purpose was the ‘verification’ of cadres, that is, purges. For instance, twenty-two persons from the top office (Prokuratura Generalna, renamed Krajowa) were demoted to a lower position, and ninety-one others from ‘appellate public prosecutors offices’ (prokuratura apelacyjna, renamed regionalna) met the same fate. One-third of all prosecutors in these offices have been subject to fictional ‘liquidation’.101 Normally, demoting a prosecutor to a lower position is a disciplinary penalty requiring a special procedure, but a simple trick with reorganization allowed Ziobro to punish some prosecutors and reward others, depending on who is obedient enough, without any procedural constraints. Prosecutors who were willing to open investigations on matters inconvenient to the government—for instance, regarding the non-publication of CT judgments—saw those cases removed from them and reassigned to other prosecutors, who were willing to follow the party line.102 As a result, the media occasionally reported bizarre decisions. A prosecutor who decided to discontinue an investigation into violence against a group of women who protested against a nationalistic march that took place on 11 November 2017, affirmed that the purpose of the violent men was not to cause harm to the protesting women but merely to ‘demonstrate displeasure’ about their messages.103 The prosecutor, Magdalena Kołodziej, was promoted to a higher rank.
At the same time, the post-reform period has clearly shown that the changes have been counterproductive from the point of view of the avowed purpose of the changes: to improve the efficiency of law and order institutions. The length of time spent on prosecutorial pre-trial investigations conducted by prosecutors has, on the whole, increased rather than shortened:104 the system has become much more centralized and politically malleable, but is less efficient in its core functions. This, in fact, is the story of both the prokuratura and the court system: reforms have meant purges, and little else.
(1.) Lecture by Małgorzata Gersdorf, ‘Speech to Mark the Occasion of the Conference Organised by the Federal Court of Germany (Bundesgerichtshof): Polish Rule of Law: Missed Opportunities? (Sąd Najwyższy, 20 July 2018) [PDF] <http://www.sn.pl/aktualnosci/SiteAssets/Lists/Wydarzenia/NewForm/Wyst%C4%85pienie%20PPSN%20w%20Karlsruhe%20-%20wersja%20ang.pdf> (accessed 22 July 2018), 4.
(2.) See Wojciech Sadurski, Rights before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe, 2nd edn (Springer 2014) 40–3.
(3.) The Court of Appeal in the Wrocław judgement of 25 April 2017, case no. II AKa 213/17.
(4.) District Court in the Warsaw decision of 18 December 2017, VIII Kp 1335/17.
(5.) See CCJE Prov5, ‘Report on Judicial Independence and Impartiality in the Council of Europe Member States in 2017’ (Strasbourg, 3 November 2017), para. 324.
(7.) Andrzej Rzepliński, Sędzia gorszego sortu (Prószyński 2018) 107.
(8.) See e.g. Yascha Mounk, The People vs. Democracy (Harvard University Press 2018) 187.
(9.) Christian Davies, ‘Hostile Takeover: How Law and Justice Captured Poland’s Courts’ (Freedom House, Nations in Transit Brief, May 2018), 5.
(10.) Komunikat z badań, ‘Społeczne oceny wymiaru sprawiedliwości’ (Centrum Badania Opinii Publicznej, March 2017) [PDF] <https://www.cbos.pl/SPISKOM.POL/2017/K_031_17.PDF> (accessed 11 July 2018), 4–5.
(13.) European Commission, The 2017 EU Justice Scoreboard, COM(2017) 167 final, 7–8.
(14.) See the Constitutional Tribunal judgment SK 37/08 of 19 June 2012; the National Administrative Court judgment I OSK 1891/12 of 9 October 2012; for discussion see Michał Ziółkowski, ‘Prerogatywa Prezydenta RP do powoływania sędziów (uwagi o art. 144 ust. 3 pkt 17 i art. 179 Konstytucji)’ (2013/1) Przegląd Sejmowy 59, 66–76.
(15.) Article 186(1) of the Constitution.
(16.) Article 186(2) of the Constitution.
(17.) Article 3 of the statute of 12 May 2011 on the National Council of the Judiciary.
(18.) The Opinion of the CCJE Bureau of 12 October 2017 on the draft legislation on the Polish National Council of the Judiciary presented by the president of Poland (CCJE-BU(2017)9Rev) para. 14.
(19.) Report of the Judicial Appointments and the Report on the Independence of the Judicial System, quoted in the opinion on the draft act amending the act on the National Council of Judiciary, on the draft act amending the act on the Supreme Court, proposed by the president of Poland, and on the act on the organization of ordinary courts No. 904/2017, adopted by the Venice Commission at its 113th Plenary Session (8–9 December 2017) para. 17.
(20.) Ibid. para. 22.
(23.) ‘Oświadczenie prof. Strzembosza i prof. Zolla ws. nowego składu KRS’, Onet.pl (Warsaw, 8 March 2018) <https://wiadomosci.onet.pl/kraj/oswiadczenie-prof-strzembosza-i-prof-zolla-ws-nowego-skladu-krs/t22wjb4> (accessed 22 July 2018).
(24.) Wojciech Tumidalski, ‘Zniszczone trudno naprawić’, Rzeczpospolita (Warsaw, 13 March 2018) 1 (interview with Andrzej Zoll).
(25.) Małgorzata Kryszkiewicz, ‘Mentalność służebną mieli sędziowie w czasach PRL’, Dziennik Gazeta Prawna (Warsaw, 8 February 2018) 6.
(26.) Agata Łukaszewicz, ‘KRS przeciw polowaniu na czarownice’, Rzeczpospolita (Warsaw, 11 May 2018) 15.
(27.) This point was forcefully raised by a judge of the regional court in Łódź, Tomasz Krawczyk. See Tomasz Krawczyk, ‘Co zapowiadają złe początki Rady’, Rzeczpospolita (Warsaw, 13 March 2018) 2.
(28.) JSZ, ‘Protegowani Ziobry i nieudacznicy. I oni mają pilnować sędziów?’, Fakt, online edition (Warsaw, 7 March 2018) https://www.fakt.pl/wydarzenia/polityka/sejm-wybral-w-glosowaniu-15-sedziow-krs/2q2z8fw (accessed 1 February 2019).
(29.) Łukasz Woźnicki, ‘KRS wybrana przez PiS już działa’, Gazeta Wyborcza (Warsaw, 28 April 2018) 5.
(30.) Agata Łukaszewicz, ‘Kandydaci wycofują się z konkursów na sędziów’, Rzeczpospolita (Warsaw, 14 June 2018) 12.
(31.) Łukasz Woźnicki, ‘KRS ma problem’, Gazeta Wyborcza (Warsaw, 14 June 2018) 6, quoting Judge Jarosław Gwizdak of the Regional Court in Katowice Zachód.
(34.) The SAC decisions of 25 September 2018, case no. II GW 21/18, no. II GW 24/18, and of 27 September 2018, case no. II GW 26/18.
(36.) ‘Stan niezależnego sądownictwa w Polsce: Raport z badań i analiz’, Stowarzyszenie Sędziów Polskich Iustitia (Warsaw, October 2018).
(37.) Decision 33/2012 (VII. 17) of 16 July 2012.
(38.) Case C-286/12, European Commission v. Hungary.
(39.) Cited in Łukasz Woźnicki, ‘Wyrok na sędziów odroczony’, Gazeta Wyborcza (Warsaw, 26 June 2018) 5.
(40.) Remarks by President Andrzej Duda in a TV interview (26 November 2017, on TVN24).
(41.) Mateusz Leźnicki, ‘Konstytucja czy karykatura?’, Rzeczpospolita (Warsaw, 8 February 2018) 20.
(42.) Article 199(2) of the Constitution.
(43.) Resolution of the General Assembly of the Justice of the Supreme Court of Poland on the term of the First President of the Supreme Court, 28 June 2018, on file with the author.
(44.) Resolution of the General Assembly of the Justice of the Supreme Court of Poland on the removal of Supreme Court Justices, 28 June 2018, on file with the author.
(46.) See interview with a PiS MP Mr Stanisław Piotrowicz, ‘Prawo uprzedzi obstrukcję’, Nasz Dziennik (Warsaw, 20 July 2018) 2.
(47.) See Paweł Wroński, ‘PiS przegłosował ustawy sądowe w Sejmie otoczonym jak twierdza’, Gazeta Wyborcza (Warsaw, 20 July 2018) online edition.
(48.) For such an opinion, see e.g. Tomasz Krawczyk, ‘Z tej mąki będzie zakalec’, Rzeczpospolita (Warsaw, 23 August 2018) 17. (The author is a judge in Łódź.)
(50.) Article 2 (2) (b) of the statute of 10 May 2018.
(51.) ‘Duda blokuje nominacje’, Gazeta Wyborcza (Warsaw, 6 September 2018) 5.
(53.) Małgorzata Kryszkiewicz, ‘Izba dyscyplinarna rośnie w siłę’, Dziennik Gazeta Prawna (Warsaw, 5 April 2018) 6.
(54.) Ewa Siedlecka, ‘Grillowanie sędziów’, Polityka (Warsaw, 16 May 2018) 20.
(55.) See (unsigned article) ‘Skarga nadzwyczajna zawężona’, Rzeczpospolita (Warsaw, 11 May 2018) 14.
(56.) This was a view expressed by an ex-member of the KRS and a chairman of the NGO INPRIS (Instytut Prawa i Społeczeństwa), Mr Łukasz Bojarski, in Łukasz Bojarski, ‘Sędziowie, liczymy na Was’, Dziennik Gazeta Prawna (Warsaw, 23 January 2018) 2.
(57.) For an account of this attitude, see e.g. Wojciech Tumidalski, ‘Kiedy zejść ze sceny’, Rzeczpospolita (Warsaw, 9 January 2018) 2.
(58.) Mariusz Królikowski, ‘Być albo nie być, czyli trudne wybory sędziów’, Rzeczpospolita (Warsaw, 9 January 2018) 3. The author is a judge in the District Court in Płock, and chair of the Płock branch of the Association of Polish Judges Iustitia.
(59.) Resolution of the General Assembly of Judges of the Supreme Court, 16 January 2018, para. 6.
(60.) Ibid. para. 1.
(61.) More specifically, seventy-five presidents and seventy-three vice-presidents of common courts, two presidents and eight vice-presidents of military courts.
(62.) Tomasz Pietryga, ‘Czystki bez precedensu’, Rzeczpospolita (Warsaw, 8 February 2018) 2.
(63.) Łukasz Woźnicki, ‘ “Dożynki” w sądach. Ostatnią dymisję przyniósł goniec’, Gazeta Wyborcza (Warsaw, 14 February 2018) 3.
(64.) Małgorzata Kryszkiewicz, ‘Kolegia sądów do wygaszenia – tak uznało prezydium KRS’, Dziennik Gazeta Prawna (Warsaw, 14 June 2018) 6.
(66.) Małgorzata Kryszkiewicz, ‘Gra toczy się o niezawisłość’, Dziennik Gazeta Prawna (Warsaw, 2 August 2018) 6.
(67.) For a description of this and another, similar case, see Ewa Ivanova, ‘Grillowanie sędziów’, Gazeta Wyborcza (Warsaw, 31 January 2018) 1. See also ‘Stan niezależnego sądownictwa w Polsce: Raport z badań i analiz’, Stowarzyszenie Sędziów Polskich Iustitia (Warsaw, October 2018), for a number of other instances of disciplinary actions (or threats of such actions) against judges, usually by Minister Ziobro.
(68.) TV interview with Judge Kluziak, ‘Nie spotkałam się z tak dyskusyjnymi zarzutami dyscyplinarnymi’, <https://www.tvn24.pl/wiadomosci-z-kraju%2C3/sedzia-kluziak-nie-spotkalam-sie-z-tak-dyskusyjnymi-zarzutami-dyscyplinarnymi%2C837702.html> (accessed 17 May 2018).
(69.) ‘Sędzia Czeszkiewicz nie zawinił. Winni są prokurator i przewodniczący wydziału’ (Gazeta Prawna Online, 29 May 2018) <http://prawo.gazetaprawna.pl/artykuly/1126921%2Csprawa-sedziego-czeszkiewicza-winny-prokurator> (accessed 15 June 2018).
(71.) Resolution of the Assembly of Representatives of Judges of the regional Court in Cracow of 26 February 2018, unpublished document on file with the author.
(73.) Amnesty International, ‘Update: “Reform” of the judiciary in Poland’, 9 October 2018 1 (on file with the author).
(76.) The amendment of 8 December 2017 to the statute on common courts; the amendment entered into force at the beginning of April 2018.
(77.) See interview with Judge of the SC and former Chairman of KRS Dariusz Zawistowski, in Tomasz Kwaśniewski, ‘Sędziowie się ważą’, Gazeta Wyborcza, section Duży Format (Warsaw, 12 February 2018) 14, 16.
(78.) See Małgorzata Kryszkiewicz, ‘Sędziowie nie chcą sądzić kolegów’, Dziennik Gazeta Prawna (Warsaw, 12 June 2018) 7.
(79.) Article 115, a, para. 3, of the new statute on common courts.
(80.) For a critique of a new disciplinary procedure along these lines, see interview with Chief Justice of the SC Małgorzata Gersdorf, ‘Pędzimy ku przepaści’, Gazeta Wyborcza, section Duży Format (Warsaw, 2 July 2018) 8.
(81.) Article 115(c) of the new statute on common courts.
(82.) The quoted opinion is by Mr Krystian Markiewicz, President of the Association of Judges (Iustitia), see Małgorzata Kryszkiewicz, ‘Postępowania dyscyplinarne sędziów w rękach polityków’, Dziennik Gazeta Prawna (Warsaw, 20 March 2018) 7.
(84.) See Agata Łukaszewicz, ‘Minister często mówi sędziom „nie” ’, Rzeczpospolita (Warsaw, 10 January 2018) 15.
(85.) Małgorzata Kryszkiewicz, ‘To nie jest kraj dla starszych sędziów: Sędziowie na łasce ministra sprawiedliwości’ Dziennik Gazeta Prawna (Warsaw, 17 January 2018) 5.
(87.) Małgorzata Kryszkiewicz, ‘Konkursy odblokowane’, Dziennik Gazeta Prawna (Warsaw, 22 February 2018) 5.
(88.) Piotr Buras and Gerald Knaus, ‘Where the Law Ends: The Collapse of the Rule of Law in Poland – and What to do’, Report by Stefan Batory Foundation and European Stability Initiative (Berlin-Warsaw, 28 May 2018) 14.
(89.) Piotr Mgłosiek, ‘Sąd Najwyższy, ale jaki?’, Dziennik Gazeta Prawna (Warsaw, 30 March 2018) 5. The author is a judge of the Regional Court in Wrocław.
(90.) Ewa Ivanova, ‘Sądolotek Ziobry do poprawki’, Gazeta Wyborcza (Warsaw, 24 May 2018) 3.
(91.) Tomasz Krawczyk, ‘Wokanda: uniki ze strachu przed władzą’, Rzeczpospolita (Warsaw, 25 May 2018) at 20. Mr Krawczyk is a judge of the District Court in Łódź.
(92.) Małgorzata Kryszkiewicz, ‘Pogłębia się kryzys w postrzeganiu sędziowskiej niezawisłości’, Dziennik Gazeta Prawna (Warsaw, 30 May 2018) at 6.
(94.) Adopted by the Sejm on 28 January 2016, by the Senate on 30 January 2016, signed by the president 12 February 2016, and entered into force on 4 March 2016.
(95.) It is true that prior to 2009, and based on the previous law on the public prosecutor’s office of 1985, both offices were merged and, in that sense, the period of 2009–16 of institutional separation can be seen as a non-typical episode. It would be ironic, however, for a strongly anti-communist leadership to refer to the law originating under communism as a model. Further, the earlier merger was at a time when the PG’s competences were much narrower than under the law of 2016, for instance, regarding the instructions that the PG can issue to every prosecutor on any particular case.
(96.) Przemysław Pokrycki, ‘Prokuratura umiera w ciszy’, Polityka, online edition (Warsaw, 25 May 2018).
(98.) Opinion on the act on the public prosecutor’s office as amended adopted by the Venice Commission at its 113th plenary session (Venice, 8–9 December 2017), Strasbourg, 11 December 2017, opinion 892/2017 para. 42, footnote omitted.
(99.) Ibid. para. 31.
(100.) See the report by the Lex Super Omnia association of prosecutors published 7 June 2018 (in Polish), ‘ “Dobra zmiana” w prokuraturze’, <lexso.or.pl> (accessed 17 June 2018). All information in this paragraph is based on this report; the facts have never been denied or challenged by the authorities.
(101.) Ibid. 22.
(102.) Eva Ivanova, ‘Prokuratura pod butem’, Czarna Księga, Gazeta Wyborcza (Warsaw, 17 October 2018) 12, 13.
(104.) As evidenced by the number of ‘protracted investigations’ (defined as investigations the length of which is over six months and under one year): in 2015, there were 6,351 such cases; in 2016, 7,419; and in 2017, 9,073. For cases in which investigations have lasted over five years, the respective numbers were 106, 173, and 209; see report of Lex Super Omnia (n. 100) 10.