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We spoke to all four members of the Free Courts Initiative, Maria Ejchart-Dubois, Paulina Kieszkowska-Knapik, Sylwia Gregorczyk-Abram and Michał Wawrykiewicz, at their headquarters on Wiejska Street in Warsaw. To facilitate the reading process, we are not attributing specific statements to a particular person. All members of the Free Courts Initiative speak in agreement.
Jarosław Kurski, Waldemar Paś: Instead of making big money in law firms, four friends became concerned with public affairs. What is your motivation?
-We are still active as lawyers, that hasn’t changed. But the past few years have turned our lives upside down.
Yet, in 2017, we were looking at the entire situation very differently than we do today. Back then, it was just a spontaneous response, anger, an emotional reaction to the destruction of Poland’s justice system.
-When public protests broke out in July, after these three outrageous bills dismantling judicial independence were proposed, I was running back and forth between the Warsaw Bar Council and the Supreme Bar Council, urging them to react, to object. I said to Sylwia: "Come on, let’s do something. Mere legislation is no longer enough". And Sylwia got in touch with Marysia and Paulina.
-You sent us the entire program in a text message, proposing that we make short videos with public figures about the importance of judicial independence. My first thought: "Oh my God, he’s gone mad".
-We’ve set up camera on the terrace and started recording ourselves. And then we went downstairs, into the crowd. First, we asked to record Henryk Wujec. Then Machulski, Varga, Janda...
-We posted it all on Facebook. We recorded ten or more of these videos in a single day. We immediately set up a fanpage. At that point, we didn’t even know yet how to run it.
-The logo was created on the spot, in just a few minutes. A couple of our friends and Bart Staszewski, [a filmmaker and LGBT+ rights activist] who volunteered as our cameraman, helped us.
-So what are we going to call ourselves? – we tried to out-scream the crowd chanting: "Free courts!"’
-Can you hear it? – Free Courts. We had four thousand followers on the next day.
What about the anger?
-Back in 1989, we were still in our teens. We’ve learned what a democratic state governed by the rule of law was at the university, and before that at home. And suddenly, this foundational knowledge fell into ruin.
-We started doing this because we felt a genuine urge in our hearts. I cannot imagine being a lawyer in such a rotten world.
We initially explained in these videos what it was all about, why we, as a society, need the courts to be independent; we then organised protests, and soon regular, legal work started, which, professionally speaking, is also a great adventure. None of us ever dreamt that we would represent the greatest legal authorities, Supreme Court judges, before the Court of Justice of the European Union or the European Court of Human Rights.
When you meet all these judges, prosecutors, and they already have the faces of Igor Tuleya, Paweł Juszczyszyn, Waldek Żurek, Ewa Wrzosek, Piotrek Gąciarek, and Krzysiek Parchimowicz, you do it for them as well.
And, of course, even though it may sound a bit lofty, you do it for the people. For the system, for the preservation of the constitutional order. This is our common patriotic cause.
But look how many lawyers there are who seem to show absolutely no interest in what is happening. They just barricade themselves inside their law firms.
-True, and it hurts us to see it, but there is a group of lawyers who can be always be counted on.
We sometimes have these moments of weakness, and of course we also dream of a quiet life, wondering how it would feel to have some more time and space for ourselves. But we do not dwell on these thoughts for too long.
You have succeeded in doing something rather difficult. You are using plain language to talk about very complicated issues. The average person in the street quickly loses track of all these appeals, chambers, disciplinary proceedings, this whole CJEU...
-This is an intentional tactic used by the government. You are not supposed to know, you are supposed to feel lost, confused.
-It is meant to create such chaos that no one will be able to distinguish between what is legitimate and what is not.
-You are supposed to think that both sides are probably a partially right, and that the truth lies somewhere in between.
The truth lies where it lies, as Professor Bartoszewski famously said.
-The ruling camp is not interested in the truth; today, everything is a manipulation, clever relativisation, a short-cut. Meanwhile, when it comes to the rule of law, the picture is black and white. The entire legal community and the independent international courts agree with this view in their judgments.
-Our first objective is communication – we want to show what can happen when the courts are taken over. It is easier for a lawyer to paint the bleakest scenarios.
Journalists also have a tendency for this doom and gloom.
-We recently published a report named "2000 Days of Lawlessness" – there, we describe what has happened since 2015, and there were days when several things were happening simultaneously. Destruction of justice happened at an incredibly fast pace – the Constitutional Tribunal, the prosecutor’s office, the National Council of the Judiciary, the Supreme Court.
-We realised very quickly that in the context of legal matters we couldn’t do much in Poland, and we had to jump over to the European courts, which are also Polish courts.
-We were faced with a dilemma: what legal instruments should we use to fight this? What formula should be used for proceedings before the CJEU to save the Polish rule of law? How to start the engine of the European machine in such an unprecedented case? After all, never before in the EU had there been such a systematic destruction of judicial independence.
So, where does the money for such proceedings come from?
-All of our proceedings in defence of judges are related to the Justice Defence Committee (KOS), and all of these lawyers are doing this pro bono.
Do you also pay for your trips to Brussels from your own pocket?
-We did this for the first two years, yes. Now, sometimes we receive some help. It was funny once – we had accommodation in some workers’ motel on the outskirts of the city. It was scorching hot, in the middle of summer, no air conditioning. And the next morning we had meetings at the parliament.
Where do you get the funds for your Initiative?
-Last year, we finally set up a foundation to somehow keep the initiative going.
-We had to gain completely new skills overnight, not only in running a fanpage, but also in fundraising. This is not our strongest side.
Some people would like to strike a deal with PiS.
-As for rights, freedoms, the rule of law and the constitution, these things are non-negotiable. Any compromise could go just as far as the constitution or judgments of the European and Polish courts. And that’s it.
-Historically, this moment is somewhat similar to what happened in 1989. It is a turning point. A new Poland needs to be built on an axiology based on values such as respect for the state and decency. As Frans Timmermans says, the rule of law is either there or it is not. All that’s been destroyed needs to be repaired, while those who caused it must be held accountable. People who violate the constitution and their judicial oath cannot go unpunished.
Let’s look at what is happening. Two days ago, the illegal Disciplinary Chamber stripped a Supreme Court judge of his immunity, in breach of a CJEU ruling.
-You can’t leave a piece of cloth in a patient’s body during surgery just because the surgeons made a deal...
Meanwhile, hundreds of thousands of judgments have already been passed with the involvement of judges whose legal status is unclear, to say the least. How can this be undone?
-From a legal point of view, this is not too difficult. The ECtHR and CJEU judgments clearly specify what should be done in this case. Judgments of Polish courts confirm this every day. Most recently, the Supreme Administrative Court confirmed it.
The original sin is the neo-National Council of the Judiciary, which was defectively constituted and has managed to recommend over a thousand people to the president for appointment or promotion to judicial positions. It has to be dissolved as a body which does not fulfil constitutional and European criteria. Then, the NCJ needs to be appointed in accordance with the Constitution, namely with a representation elected by judges and not politicians. This should be a Council that upholds the independence of the judiciary and the impartiality of judges.
The people who have been appointed and promoted by the neo-NCJ do not have the correct judicial status, so they should be removed from their current positions. But should all be able to take part in the recruitment process and be reappointed. Those who are not competent or who have broken the law or the code of ethics will fall out. After the new NCJ is elected, the entire process should last two to three months.
But what about the judgments issued by the neo-judges?
-From the point of view of legal logic, if a defectively appointed person issued a judgment, that verdict should be considered invalid. But the most important thing here is the interest of the citizens. This is a matter of the security of the people participating in proceedings and legal transactions, a matter of confidence in the state.
-That is why these judgments should, in principle, remain valid. There is no controversy here.
-However, anyone whose case was heard by an illegally staffed bench would be entitled to a contest such a judgment within a short period of, say, six months.
-And at the state should cover the costs. Citizens should not suffer the negative consequences of the legal chaos caused by the current government.
-We are advocating this in the interest of all citizens, including PiS voters.
-Well, this is a kind of compromise...
You see a compromise here, but not in systemic matters?
-Our key motivation is the civic good. So, we need to clean the wounds efficiently so that there’s no relapse. The people who took part in this recruitment process were fully aware that they were taking part in a defective procedure.
-They graduated from law school; they knew perfectly well what they were doing. Immanuel Kant said that reason has the power to overcome evil. The neo-judges consciously chose to go down the path of lawlessness. Some of those who have taken short-cuts may have committed disciplinary infringements or even crimes – this applies to those most closely related to the authorities. However, the majority will simply be able, if they wish, to go through a re-recruitment process. Many of these judges already declared that they would participate in such procedure.
-What is happening in the neo-NCJ is completely absurd. Inexperienced people or people with terrible judicial statistics, clearly not the best and the brightest.
People associated with the ruling camp?
-In any case, people who are faithful to the authorities. But there is a huge group of decent judges who deliberately did not take part in recruitment process because they did not want to legitimise the neo-NCJ.
In 1989, professor Strzembosz said that the judiciary would clean itself up, but it clearly hasn’t. Is this a lesson for all of us?
-I would not want to compare these two situations. The post-transformational reality was completely different.
But the comparison is tempting and will certainly be made.
-The situation nowadays is much less complicated. We are not dealing with half a century of communist rule, but with a rapid destruction of the legal system, lasting several years. This can be undone. The justice system will not be paralysed; on the contrary, it will be healed.
But if this wound rots over the coming decades, we won’t be able come out of this chaos; every attorney losing a case will appeal against the decisions made by neo-judges, at least out of professional concern. He will file a complaint to Strasbourg, and Strasbourg has already set a certain standard – Poland will be forced to pay compensation for many years.
-The so-called reprivatisation is a perfect example of what this could look like. Legal sins from the 1950s have been haunting us for 70 years.
-Another example is the resolution on the Swiss franc that everyone is awaiting from the Supreme Court. If the civil chamber of the Supreme Court rules without neo-judges, the losing party will certainly say: where were the neo-judges? And if there are neo-judges on the bench, the losing side will then say that neo-judges were adjudicating. Whatever happens, either the lawyers of the banks or their clients will take advantage of this uncertainty, because that is what professional diligence will require of them.
But a person who has no connections to the current government, Judge Michał Laskowski, president of the Criminal Chamber of the Supreme Court, says that we need to come to an agreement somehow, sit down at the table and find some sort of a solution.
-The idea of what to do with the judgements handed down by the neo-judges is already a compromise. The new recruitment process for judges can be conducted quickly as well.
-No one will be excluded, except those who acted in violation of their judicial oath.
What about them?
-They should be subjected to a fair disciplinary procedure before an independent court.
What about the Constitutional Tribunal? Do we accept any continuation here? All of its members were hand-picked and appointed by PiS.
-C’est la Vie. The three stand-ins are a completely different issue.
-Of course, an examination would be required to establish whether the people who were legally appointed had committed disciplinary offences.
-Additionally, the appointment of the Tribunal’s president, Julia Przyłębska, was clearly unlawfully, in conflict with the constitutional law that was in force at that time.
-And again, leaving the wrongfully appointed Ms Przyłębska in office as president will have a legal impact on further generations.
-However, the liquidation of the Constitutional Tribunal in the form in which it currently operates would require amending the Constitution.
All sanctions of this kind would require passing new laws. President Duda would veto them, I’m sure.
- Not necessarily. The question is where he would position himself.
Or he will refer the sanctioning Act to the Constitutional Tribunal. And what will the Free Courts Initiative do then?
-There’s no point in speculating, because then we wouldn’t be able to plan anything.
The President can also say – sorry, this is futurology again – let’s sit down and negotiate.
-But what is here to negotiate?
-The Constitution is not negotiable, it is what it is. Just like international agreements.
So, what should we do with the judgments of the Constitutional Tribunal that involved stand-ins?
-They are obviously defective and should be declared invalid.
-But not automatically.
-Only in terms of judicial decisions. It will be possible to reopen proceedings before the Constitutional Tribunal in the future, or the courts can disregard these defective judgments. The Criminal Chamber of the Supreme Court did this recently.
Is the last year’s ruling regarding abortion valid then? Explain this like you would to a six-year-old.
-It’s the same as with judgments of the ordinary courts or the Supreme Court. Each of them must be held up, but there needs to be a procedural instrument to reopen proceedings. In other words, the ruling of October 22 – if only because of the fact that stand-ins were adjudicating and the incorrectly appointed president Przyłębska named the members of the bench – gives grounds for re-examining the case. Likewise, the parliament must not execute a defective judgment.
In the meantime, the Constitutional Tribunal will continue to adjudicate with its current members or with even worse ones.
-Their term will eventually end.
That will take years!
-In the meantime, it will be the ordinary courts, relying on international agreements and judgments of courts that are binding, that will have to save the citizens from the consequences of the invalid judgments of the Constitutional Tribunal. There is no other way out.
The verdict is there, but it does not apply. Will people understand this?
-If a doctor stands trial for performing an abortion, the judge should say in his argument: I cannot take the ruling of the Constitutional Tribunal of 22 October 2020 into account because it was wrongfully issued. The Supreme Court ruling from a few days ago only strengthens this argument.
And then, on the next day, the judge will be harassed into obedience by Mr Piotr Schab...
-But we assume that Mr Schab will no longer hold the office of disciplinary commissioner.
And what about the Supreme Court?
-There are currently about fifty neo-judges, half of all the members. Everyone who was incorrectly appointed should leave– this is what the European and Polish judgments, and most recently also the Supreme Administrative Court, state.
We currently have a legal vacancy in the position of first president of the Supreme Court, because not only was Professor Manowska incorrectly appointed without a resolution of the NCJ, but also, like Ms Przyłębska, she was recommended to the president as a candidate without a resolution of the General Assembly of the Supreme Court judges.
So, she is a non-judge, a non-president. And if the General Assembly of the Supreme Court re-elects Ms Manowska?
-This is impossible, because neo-judges cannot participate in the process. Unless they submit their applications to a legally elected NCJ, pass the recruitment procedure and receive a presidential nomination.
And the two new Supreme Court chambers?
-They should be dissolved.
The public prosecutor’s office?
-According to the law, the public prosecutor’s office is to protect the rule of law. It is supposed to defend us, citizens, against criminals, and from harassment by the state. Today, it is a de facto government protection agency. It has to be built practically from scratch.
Do you have draft legislation prepared?
-A whole range of drafts are already prepared. Iustitia has a bill on the NCJ. There is a senate bill on reversing defective judicial appointments.
-The Batory Foundation has a comprehensive expert draft on the Constitutional Tribunal.
Or perhaps the ruling camp wants to remodel the European Union and the European courts in their own way?
-That is nothing but fantasy. There are treaties Poland had wilfully signed, and we are obliged to implement the judgments, end of story. We are in the EU, we are a party to the Convention on Human Rights, so it doesn’t matter if someone does not like the values arising from these binding documents.
But there’s a bill waiting to be passed by the Polish Parliament, which the Helsinki Foundation is protesting against. It restricts the application of the right to asylum guaranteed by the Geneva Convention.
-This is also what the Constitutional Tribunal is trying to do by getting rid of all the concepts.
-We have to remember our core values. Of course, it’s difficult to fight against the fact that someone is destroying everything without having the necessary legal tools. But we are democrats; our weapons are the values enshrined in the Constitution and the treaties.
What is the message you’re getting from the opposition parties?
-They want to listen. Politicians realise that it is impossible to repair the state without listening to the experts. We will be keeping a close eye on every party to see that there are no temptations to exploit the justice system, which is supposed to serve the people.
-At this moment, we probably all agree that to repair Poland, we need to restore the rule of law first. What will we tell the future generations? That it pays off to violate the Constitution?
-In recent years, the legal community has become incredibly integrated in its understanding of the rule of law. There are differences, sure, but a common position can be established.
-What’s more, there is not much support for these so-called judicial reforms from the PiS electorate.
Och, how I would like this to be true.
- Hyper-polarization is the underlying problem here: either you are with us, or you are an enemy. Meanwhile, literally everyone, every single citizen, will be worse off by not having legal protection. Everyone can be crushed by the state apparatus at some point.
-Statistically, proceedings last 67% longer than before the judicial "reform"
-There are no investments in digitisation; procedures are not being simplified; people still have their hearings cancelled; courts have to focus on the battle for independence rather than on their everyday work, on hearing cases. Every second judgment can be challenged because it is issued by a neo-judge appointed by the neo-NCJ.
-What about the advocates of the reform? They will change their minds when they hear from their lawyer in court that they have to challenge the bench in order to win because there is a neo-judge in it.
Voices advocating for Poland leaving the EU are becoming increasingly louder. You say one thing, and the officials say: but we want to arrange things our way and change the Union, and if not, we’ll leave it.
-But public preferences are quite clear in this case.
Yes, support for Poland’s EU membership is still at over 80%, but the number of those who are undecided has risen from 5% to 12%.
-Propaganda is working.
-But we are still one of the most pro-European countries in the Union.
You mentioned that the judiciary and bar associations are finally speaking in one voice. I can also imagine the counter-argument: the caste has joined forces with the lying elite.
-What caste? Everyone who speaks out in defense of the rule of law is being harassed because of it. We, as a country, should have the ambition that since we were the forerunners of the destruction of the rule of law in Europe, we should now be the forerunners of the restoration of European foundations.
-Countries all around Europe have similar problems. There are anti-democratic tendencies everywhere. What happened in Poland can happen elsewhere.
-The attitude of the Polish judges is consistent with the archetypal Polish rebel, sacrificing himself for the greater good. And if someone needs the dignity aspect, there we have it – the judges are the modern-day Gdańsk shipyard workers. They are admired and highly respected in Europe for defending democratic principles. If anyone is saving our international reputation, which is being constantly tarnished by the ruling camp, it’s them.
Meanwhile, the number of people behind bars in our country is among the highest in Europe.
-We are returning to the situation from the 1990s, when the ECtHR said that we have a systemic problem with the use of pre-trial detention because it is too long and not thought out.
And given the general public’s lack of interest in the ruling camp’s effort to dismantle the justice system, isn’t there some kind of longing that, instead of wasting time with the courts, I should just go to the First Secretary and settle the matter with him?
-It’s their political objective to stop the legal system from working, so that you have to ask the First Secretary for help.
-This is what differentiates the rule of law from the rule of force.
-The ruling party with its clearly autocratic inclinations does not want to be held accountable in any way, and wants to do whatever it likes with the citizens.
-And I’m not speaking up on this because I was born in 1982, so I find any analogy with the First Secretary incomprehensible. Half the citizens who are aware of what’s happening were born later.
Perhaps there is a longing engrained deep in our cultural DNA for someone to tell us what to do?
-We like to think that, as a nation, we have certain values and freedom engrained into our DNA. The truth is, however, that every generation has strong, brave individuals who fight for these values. But this is the case in every society.
-Certainly, the sin of the post-1989 generations is that we did not teach people to show respect for the rule of law and institutions.
Doesn’t that require several centuries? Perhaps today we’re closer to Belarus than Germany.
-I disagree. We also have strong traditions rooted in the enlightenment. And a great history of peaceful transformations in 1989, which gave freedom to many Eastern European nations, in part thanks to our "Solidarity" movement. These are positive educational models.
Is this kind of thinking not exclusive to educated urban elites?
-The stereotype regarding small towns is a curse. We travelled around Poland with our Tour de Constitution project, and there are local leaders everywhere; and they were not only teachers, doctors, and lawyers. Students from a school for mechanics in a small town often think more rationally than the spoiled kids from Warsaw’s prestigious high schools.
Free Courts respect all citizens. After all, as attorneys, we are involved in helping all people in need.
What will you do when the day comes that the Free Courts Initiative is no longer needed?
-We have our wonderful legal specialisations and we shall have more time for them.
-Or perhaps we’ll go skiing?
What about the foundation? Will you dissolve it?
-No, it will always be needed. The Free Courts Initiative will operate within the area of human rights and the political framework of every government, watching it closely.
How many people are there in the foundation?
-The four of us plus two staff members, and some young people helping us out.
How long do you work in a week?
-Until we drop.
-This is more than a full-time job.
-But we share the responsibilities.
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