WARSAW — Brussels must remain firm with Poland, regarding Warsaw’s assault on judicial independence and the rule of law.
The damage caused by the recent judicial overhaul will not be undone by the cosmetic changes recently proposed by Poland in order to reach a compromise with the European Union. They do nothing to address the key problems: the government’s ability to remove up to 40 percent of the Supreme Court’s judges — including the court’s first president — and the justice minister’s power to discipline judges.
The independence of Poland’s Supreme Court — and its entire judicial system — is at stake. Polish civic society, opposition politicians and independent judges are doing what they can to resist. But the EU must intervene in their defense, before it is too late.
Judges at risk
The overhaul of Poland’s judiciary should not be evaluated in isolation. It’s important to take into account the political and social context.
The legislation concerning the judiciary was passed by parliament, but it was not subject to proper, deep democratic discourse. Voices of opposition parties, independent state institutions, civil society and iconic figures of the Polish judiciary were limited — or silenced altogether.
Recent actions by Polish Justice Minister Zbigniew Ziobro show the risks judges face when they act against the desires of the government.
The Polish government is concentrating power in its hands, subordinating public media, the secret services and the prosecutor’s office. The independence of the judiciary has already been badly damaged. Due to changes implemented in last two years the Constitutional Court has lost its ability to effectively control legislation of political importance.
Recent actions by Polish Justice Minister Zbigniew Ziobro show the risks judges face when they act against the desires of the government.
Last month, Ziobro announced that judges should face disciplinary measures for applying the Polish constitution directly in their judgments. Instead, they should ask the Constitutional Tribunal for its opinion. The alternative, he said, would be legal anarchy.
Ziobro was speaking in reaction to a verdict by the Regional Administrative Court in Gdansk, which had revoked changes to street names made by the regional governor in accordance with a law that calls for the removal of references to communist-era figures. The court — relying directly on the constitution — had ruled that street names were the competence of local governments and that changes could not be made without first consulting them.
Ziobro’s words were carefully chosen. He is also the prosecutor general, so he has many tools with which he can discipline judges. He has made it clear that those brave enough to make independent decisions could face disciplinary action or other professional problems.
Laws in effect
The way the judicial overhaul has been implemented so far shows that the overall goal is political: the replacement of judges in key positions with people whom the minister of justice trusts.
Under the Law on Organization of Common Courts, which entered into force in September 2017, Ziobro had a six-month window in which he could dismiss presidents of courts and appoint new ones, without consultation. Despite protests by some judges, almost 150 court presidents and vice presidents were replaced.
A law governing the National Council of the Judiciary — an organ governing judicial appointments and promotions — entered into force in January. The council is composed of 25 members, including 15 judges and six members of parliament. The new law changed the way 15 members were appointed. They are no longer elected by their peers, other judges. Instead, they are selected by the Sejm, the lower chamber of the parliament.
In March, the Sejm elected all 15 new members. The major opposition parties decided not to participate in the election, arguing it violated the constitution.
The council, with its new composition, has yet to be convened. The new law says that it should be called by the president of the Supreme Court, Małgorzata Gersdorf. But she has refused to participate in this procedure, citing constitutional doubts about the council’s composition.
The result has been a legal and political stalemate — one that will probably be resolved soon, if not peacefully, then by another quick, forceful legislative amendment.
Packing the Supreme Court
The Law on the Supreme Court entered into force on April 3. The government says the law is intended to increase the efficiency of the Supreme Court. It provides the court with a new structure, introduces a special disciplinary chamber and the possibility of bringing extraordinary complaints in cases involving human rights violations.
The law’s critics, however, say its aim is purely political: to cram the court with new judges and to restrict its independence from the executive power.
Polish Justice Minister Zbigniew Ziobro | Pawel Supernak/EPA
The law lowers the mandatory retirement age for Supreme Court judges from 70 to 65. That means that Gersdorf, who turned 65 last year, will be removed from office, even though her constitutional term ends in 2020.
The same issue affects up to 40 percent of other judges. The law allows them to ask the Polish president to extend their terms for three years. But for many of them even making such a request would constitute a violation of their judicial independence.
In addition to causing these retirements, the law increases the number of judges on the court from 83 to at least 120. This will provide the government the ability to enact a complete takeover of the court.
The law also creates a new Chamber of Extraordinary Control and Public Affairs. This will be created from scratch, with new appointees only. The chamber will have the power to adjudicate on issues like validity of elections, energy law and television and radio concessions for private broadcasters.
It will also review any extraordinary appeal against any judgment made during the last 20 years, if a qualified institution — including Ziobro acting as prosecutor general — request it to.
During a transition period, Ziobro will also have the power to delegate any judge with 10 years of experience to adjudicate in the Supreme Court. There is a risk that these delegated judges will stay there for years, if the National Council of the Judiciary appoints them to the bench in cooperation with the Polish president.
Battlegrounds
The situation in Poland may be thought of as a war being fought on different battlegrounds and with different weapons.
The first battleground is in Warsaw and other Polish cities. Here, the dividing line is between the ruling party and the democratic forces protecting the judicial independence, including major opposition parties, judicial associations, nongovernmental organizations and the free press.
In this battle, the government is winning, because it is extremely difficult to fight the decisions of a parliamentary majority that ignores any international or domestic voices of concern.
Will the European Commission step up against Poland? | Ludovic Marin/AFP via Getty Images
There are signs of hope, like the solidarity of judges protesting against new composition of the National Council of the Judiciary or against new appointments for presidents of local courts. The refusal by the president of the Supreme Court to call the first meeting of the newly appointed council is another front on this field of play.
The second battleground is in Brussels and the national capitals of EU members. This concerns the use of Article 7 of the EU Treaty, which puts Poland on the path toward sanctions for breaching EU law.
Because of this pressure, the Polish government has proposed amending the law regarding the retirement age for common courts judges and for appointment of presidents of the courts.
This move should be acclaimed as the first positive sign of a willingness to change aspects of the legislation, but it changes nothing when it comes to the composition of the National Council of the Judiciary or the Supreme Court.
It is likely that the true aim of the changes is to prolong and dilute the discussion with Poland’s European partners, just as Prime Minister Mateusz Morawiecki did so effectively when he presented the European Commission with a 94-page “white book” that purported to show that the changes to the judiciary do not undermine the rule of law.
Everything possible must be done in order to save the independence of Poland’s Supreme Court.
As discussions drag on, further personnel changes will be implemented on the ground in Poland, especially with respect to the Supreme Court’s composition.
The third battleground is in Luxembourg, where the Commission has brought an infringement case to the Court of Justice of the European Union concerning the retirement age for judges. The most recent development is a reference to the ongoing proceedings by the Irish High Court of Justice, which has asked whether EU member countries should still trust Polish courts in implementing European Arrest Warrants.
A period of darkness
As with every war, this one has its victims.
The careers and professional dignity of individual judges are being sacrificed at the altar of political games. But that is the least of it.
Here in Poland, we are headed into a period of darkness when it comes to legal guarantees, the role of the constitution and the sanctity of EU treaties. Hope is slowly vanishing. We can only hope that — being deprived of institutional guarantees of independence — individual judges will be strong enough to safeguard their own independence in their judicial decision-making.
European politicians must look beyond the next month or year. Everything possible must be done in order to save the independence of Poland’s Supreme Court.
Adam Bodnar is the ombudsman of the Republic of Poland.