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What can be done today, while the Law and Justice party (PiS) is still in power, to prevent further deterioration of the rule of law in Poland? Disagreement with the current state of affairs, which is based on lawlessness, as already confirmed by the case law of the Supreme Court, Supreme Administrative Court, the ordinary courts, the CJEU and ECtHR, needs to be consistently expressed. The main issues, arising not from the opinion of one or another lawyer or the legal community but from the judgments of Polish and European courts, must be clearly communicated.
Our task, particularly that of lawyers, journalists and members the civil society, is to be vocal about the fact that the Disciplinary Chamber is not the Supreme Court (in fact, it is not a court at all), that M. Manowska is not a legal first president of the Supreme Court, that J. Przyłębska is not a legal President of the Constitutional Tribunal, that the neo-NCJ is not a constitutional National Council of the Judiciary, that stand-ins are not judges of the Constitutional Tribunal, that neo-judges are not correctly appointed judges and their rulings are defective, etc.
Similarly, all available legal instruments must be consistently used to challenge the unlawful actions by the authorities within the judiciary, as well as initiating proceedings at national and European level. As the practice in recent years has shown, only systematically obtained judgments and their implementation can stop the destructive changes within Poland’s justice system.
Ten commandments for restoring the rule of law in Poland
When political opportunity for making legislative changes finally presents itself, this is what should be done:
1. Amendment of the Act on the National Council of the Judiciary – removal from office of all members of the neo-NCJ elected in conflict with the Constitution and PiS’s own act (among other things, because of the lack of the required number of signatures for a candidate and voting at the same session of the Sejm), in conflict with the EU Treaty, the Charter of Fundamental Rights and the Convention. Establishment of a legal, constitutional NCJ on reformed principles (democratisation of the election process of the part of the Council elected by judges, participation of all judges – according to ideas proposed by "Iustitia").
2. Removal of neo-judges from the judicial functions to which they were appointed by the neo-NCJ in connection with the prejudgment that neo-NCJ resolutions underlying such appointments and judicial promotions are defective. Their defectiveness and the lack of independence of the neo-NCJ were confirmed in judgments of courts and tribunals. Further adjudication of these (defectively appointed and promoted) people will constitute the basis for anyone who loses his or her case challenging the judgment. Since there were no legal resolutions of the NCJ (which are necessary for judicial appointment or promotion under Article 179 of the Constitution), these people are not entitled to have protection under Article 180 of the Constitution (prohibition of removal from judicial office) because they are not entitled to the status of a judge (or the status of a judge in the court to which they were promoted). A valid resolution of the NCJ is the sine qua non condition for a valid appointment or promotion. Otherwise, the president could appoint, for instance, a horse as a judge, just as Emperor Caligula appointed Incitatus to the Roman Senate. The neo-judges were either appointed or promoted by the president without a resolution of a legitimate NCJ.
This principle should be the same for everyone appointed with the involvement of the neo-NCJ. Importantly, however, all defectively appointed people could immediately stand for re-recruitment before a new, legitimate NCJ (which should be correctly elected as soon as possible). If they meet the substantive and ethical premises – they could return to their judicial functions. This process can be organised quickly, setting short deadlines for the new NCJ, especially in the cases of new, young judges who appeared before the neo-NCJ as a result of the timetable of their professional education instead of personal choice. They should enter the recruitments first. No one will be injured, while citizens and all litigants will have peace of mind that their case will be legally settled and will not end up before the ECtHR because of the defective appointment of a judge (which, in turn, will expose Poland to damages for breaching the Convention), while the Strasbourg standard has already been defined in this respect.
However, those who have betrayed their judicial oath in recent years, jumped several steps in their career only through personal connections, or served as political functionaries to destroy fellow judges would probably not be promoted again. At the same time, the righteous, who did not take part in recruitments before the neo-NCJ, would have a chance here.
3. Judgments of neo-judges should remain valid. This is required for the protection of citizens, security of transactions and the principle of confidence in the state. However, every participant of the proceedings in which a neo-judge issued a judgment will have the right to challenge such a judgment, specified as a negative procedural condition (e.g. for 6 months).
4. The Supreme Court. All neo-judges (almost half the members of the Supreme Court) should lose their functions not only because of the defectiveness of the neo-NCJ, but also because of the defectiveness of the announcement of the recruitments themselves and other procedural defects, which was confirmed by the judgments of the Supreme Administrative Court. A general assembly of Supreme Court judges should be called to correctly select candidates for the position of First President of the Supreme Court. The Disciplinary Chamber and the Chamber of Extraordinary Control and Public Affairs should be liquidated.
The liability of many of these people who are directly related to the ruling party and who knowingly breach the interim measures and judgments of the CJEU, perhaps in disciplinary regimes of their primary legal professions (e.g. many prosecutors were elected to the Supreme Court), will be a matter to be decided separately.
5. Liquidation of the extraordinary complaint institution. Perhaps consideration could be given to the significant limitation of its subject matter and scope, e.g. leaving this right solely with the Ombudsman. The complaint cannot be used, as is currently the case in many instances, to use ‘its’ chamber of the Supreme Court to overturn politically uncomfortable judgments or to harass opponents.
6. The restoration of normal, independent disciplinary court for judges. The Muzzle Act also needs to be repealed.
7. Changes in the positions of court presidents. Changes are needed in the positions of court presidents, who are currently politically appointed. It is also important to reinstate the rules for appointing court directors and presidents, as well as judicial boards, so as to restore real judicial self-government (judicial boards currently consist of people nominated by the minister). The judicial community should propose practical, modern solutions.
8. An independent prosecutor’s office should be established from scratch. Separation of the role of Minister of Justice from the Prosecutor General. Very close expert cooperation with the community of independent prosecutors. Creation of a true public prosecutor’s office.
9. The Constitutional Tribunal. Swearing in of the three judges who have been waiting since 2015 to take the oath (if they resign, three others need to be elected). Removal of stand-in judges from the position of Constitutional Tribunal judges, convening a general assembly of Constitutional Tribunal judges and leading to the correct election of candidates for the office of President of the Constitutional Tribunal. A draft of a new Act on the Constitutional Tribunal is being prepared in the legal community.
10. A de facto judicial reform. Civil, criminal and administrative procedures must be streamlined, the justice system must be computerised, files must be digitised, a transparent system of computerized allocation of cases must be introduced, access to justice must be increased and a modern system of ex officio legal services must be implemented, making the right to a trial more realistic, etc.
Translated by Roman Wojtasz
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