Poland: Judicial Reform & Independence
This article expands a previous article “The European Commission’s attack on the reform of the justice system in Poland: summary, chronology and challenges” available here. These articles from Patryk Regalski, Guest Author, aim to expose and explain the conflict between the European Commission and Poland.
The most explosive sticking point between the European institutions and Poland today concerns the justice reforms voted in 2017 by the parliamentary majority led by the Law and Justice Party (PiS) of Jarosław Kaczyński. Three major laws were indeed adopted by the Polish parliament during the previous legislature (2015-19), when the coalition United Right, consisting of the PiS and of two small conservative parties, had an absolute majority in the Sejm [Polish Parliament] and the Senate: the law of 12 July 2017 reforming the ordinary courts, the law of 8 December 2017 reforming the National Judicial Council (Krajowa Rada Sądownictwa, KRS), and the law of 8 December 2017 on the Supreme Court (Sąd Najwyższy, SN). The Polish Supreme Court is in fact a court of cassation, the control of the conformity of laws with the Constitution being carried out by the Constitutional Court (Trybunał Konstytucyjny, TK). The laws on the KRS and SN of December 2017 were adopted on the basis of two bills presented by President Andrzej Duda, who had vetoed the version proposed by parliament in July 2017. It was just after the adoption of these last two laws that the European Commission asked the European Council on 20 December 2017 to initiate the sanction procedure against Poland under Article 7 of the Treaty on European Union. Then, in October 2019, the European Commission, faced with the impossibility of obtaining a sufficient majority in the Council to “determine the existence of a serious and persistent breach by [Poland] of the values referred to in Article 2”, brought an action before the European Court of Justice against the reform of the Polish Supreme Court, which created two new chambers, including a disciplinary chamber.
Why such reforms?
The PiS programme published in 2014 paid particular attention to the need for in-depth reform of the Polish judicial system 25 years after the fall of communism. On the one hand, the PiS programme promised the restoration of a certain degree of democratic control over a third power which was accused of being subject to no external control, whereas it was itself responsible for controlling the other two powers. The PiS programme therefore contained a passage that read as follows:
“The judicial institution cannot be ‘a State within the State’. Without prejudice to the fundamental constitutional guarantees of independence and impartiality, citizens cannot be deprived of influence on the functioning of the ‘third power’. The ‘third power’ must serve society, the people, and not itself. There must be effective control mechanisms to prevent links in the judiciary from becoming detached from their role as servants of the society and to correct errors.”
On the other hand, the judicial system was criticised for being incapable of dealing itself with its own shortcomings and the problems affecting in particular the behaviour of certain judges (incompetence, corporatism, corruption, informal submission to political power which had appeared in certain cases, etc.) which had been affecting it since the democratic transition of 1989-90. The PiS programme for the 2015 elections therefore promised “zero tolerance for pathologies in the judiciary”, while also stating that “the judiciary must be a sphere of action of the State completely free of corruption, nepotism and business ties”.
These two criticisms of the judicial system were at the root of a deep mistrust of the population, accentuated by certain scandals. The PiS programme for the 2015 elections also stated: “The courts in Poland are going through a deep crisis. They are malfunctioning, they are losing the trust of society, and are seriously threatened by corruption and nepotism, and also by ‘silent’ political dependence, as some cases have shown, such as the case of the ‘judge picking up the phone’ in Gdańsk.”
Reform of the National Judicial Council (KRS)
The Polish KRS is the constitutional body responsible for monitoring the independence of the courts and the impartiality of judges. It may refer a matter to the Constitutional Tribunal if it considers that a law infringes on the independence and impartiality of the judiciary. It proposes the appointment of judges to the President. Its composition is specified by the Polish Constitution: the First President of the Supreme Court, the Minister of Justice, the President of the Higher Administrative Court (NSA), one member appointed by the President of the Republic, four members chosen by the Sejm among the deputies, two members appointed by the Senate among the senators, and fifteen members appointed among the judges of the Supreme Court, ordinary courts, administrative courts and military courts. The term of office of KRS members is four years. As to the competence of the KRS, its mode of operation and the manner of appointment of its members, the Polish Constitution prescribes that it is up to the legislator to decide.
A new “democratic” way of appointing members of the KRS
The main change brought by the 2017 Act, compared to the previous situation, concerns the method of appointment of the members of the KRS. The 15 judges who are members of the KRS were previously co-opted by their peers. They are now elected by the Sejm, by a 3/5 majority, from candidates proposed by a minimum of 25 judges or 2,000 citizens. However, if an initial vote does not result in the appointment of the 15 judges by a qualified majority, then a vote is held in which each deputy appoints his or her preferred candidate; the 15 candidates with the highest number of votes are then appointed to the KRS. According to critics of the law, this method of appointment may allow the parliamentary majority to appoint the 15 judges who are members of the KRS. This was certainly the case after the adoption of the reform since a significant part of the parliamentary opposition chose to boycott the vote.
It has been said that the appointment of the 15 KRS member judges (out of a total of 25 members) effectively subjected the institution responsible for ensuring the independence and impartiality of judges to the current legislative majority. As a result, some Polish judges, hostile to the PiS reforms, also questioned the validity of the appointments of other judges made by President Andrzej Duda on the proposal of the reformed KRS (from 2018). According to some critics of the reform, if the 1997 constitution states that 15 members of the KRS are to be chosen from among the judges, this implies that they must be chosen by other judges. However, the constitution does stipulate that “The organisation, scope of action and mode of operation of the National Judicial Council and the method of appointment of its members shall be defined by law” (Article 187.4), without providing further details. The choice of the manner of appointment of these 15 judges was therefore indeed entrusted to the legislator in Poland, which is not a unique situation in Europe. This is the case in Spain, for example, where the constitution leaves the same latitude to the legislator, who has decided that the appointment of the 12 judges or magistrates to the General Council of the Judiciary (Consejo General del Poder Judicial) falls under the responsibility of parliament.
The replacement of the 15 judges who are members of the KRS
Part of the Polish opposition and the European institutions have also criticised the new law for allowing the PiS to replace the 15 KRS judges in one fell swoop before the end of their term of office. However, in a judgment of 20 June 2017, the Polish Constitutional Court ruled that the 15 KRS member judges should, in the light of the Constitution, be appointed simultaneously for a simultaneous four-year term, and not individually for separate terms, as was the case under the previously applicable KRS Act. Therefore, in order to comply with this provision, the term of office of at least some of the members of the KRS had to be shortened. Furthermore, while the 1997 Polish Constitution stipulates that “judges are irremovable” (Article 180.1), the KRS is not a judicial institution. The Polish Constitution also places a restriction on the principle of immovability of judges: “in the event of a change in the organisation of the courts or a change in the geographical boundaries of the courts, it is permissible to transfer a judge to another court or to place them in a state of inactivity with full remuneration” (Article 180.5).
The reform of the KRS is one of the main criticisms made to Poland
The Venice Commission, a consultative body of the Council of Europe, in an opinion delivered on 11 December 2017, took the opposite view, namely that a council for the judiciary should, in order to meet European standards, have a majority of members appointed by the judges themselves. This opinion targeted Poland, whereas several Council of Europe countries have never met these standards.
Similarly, in September 2018, the European Network of Councils for the Judiciary (ENCJN) suspended the participation of the KRS in the ENCJN on the grounds that it no longer met the criteria of independence from the executive and legislative branches, which is a condition for membership of the ENCJN. However, it is surprising that the RECJ did not adopt the same sanction in respect of its Spanish members of the General Council of the Judiciary, as they are also appointed by Parliament.
Through this conflict, what is at stake is the question of the relations between the democratically elected power and the judiciary. The “rule of law” which the Polish Government is accused of violating is none other than the domination of the judiciary over democratic power. The judicial power inherited from communism, and in charge in the European bodies, is deeply hostile to the fundamental political choices of the democratically elected power in Poland. The whole point of the Polish reform is to rebalance the relationship between these two powers, to give the people a share of their sovereignty and political power a margin of manoeuvre.
 Article 7, par. 1, of the Treaty on European Union.
 In 2012, during the scandal of the fraudulent bankruptcy of the parabanking institution Amber Gold, a provocation organised by a journalist posing as the personal secretary of the head of the Prime Minister's chancellery Donald Tusk showed that the president of the Gdańsk court had appointed ‘persons of trust’ to judge this case in which the main defendant was also the employer of the Prime Minister’s son. “You don't have to worry, if I may say it that way,” replied Judge Ryszard Milewski, thinking he was speaking to an aide of the Prime Minister. The recording of the conversation was later published by Gazeta Polska Codziennie, a newspaper close to the PiS, then in the opposition.