By Anna Wójcik
Since coming to power in 2015, Poland’s Law and Justice (PiS) government has introduced numerous changes to the judicial system that have ignited nationwide street protests, put Poland at loggerheads with the European Commission over breaches of EU law, and provoked the resistance of a substantial number of judges in Poland.
In response to this criticism, the Polish authorities have offered a range of arguments to defend and justify their overhaul of the judiciary, intended to win support among a domestic audience and neutralise criticism from abroad. These arguments have remained remarkably consistent over the last four years, and can often appear superficially convincing. It is therefore worth looking at some of the most common and important ones, and examining why they are misleading or even outright false.
1. “We’re rooting out (post-)communists”
This argument states that Poland must complete its reckoning with the former communist regime in order to address past injustices and to improve the condition of democracy by increasing social trust in the judiciary. The purported aim is to root out judges whose professional conduct before 1989 could be questioned on legal and moral grounds.
President Andrzej Duda, for example, when justifying his support for the government’s judicial overhaul, said he “deeply regrets” that “judges stained during communist times” were still allowed to sit on the Supreme Court. Yet of the 23 judges forced out of the court by a law he signed, only three actually adjudicated during the communist era. And even their track record and biographies do not match Duda’s black-and-white vision.
Meanwhile, in December 2019 Duda swore in as a Constitutional Tribunal judge a former PiS MP nominated by the PiS majority in parliament, Stanisław Piotrowicz, who worked as a communist state prosecutor during martial law and was involved in a case against an opposition dissident.
The prime minister, Mateusz Morawiecki, who is a historian by education, falsely claimed in an interview with Le Figaro that “100% of judges” remained in office after 1989 in Poland, comparing the current situation to France having to deal with collaborationist judges after the Second World War.
In actual fact, there has already been one “decommunisation” process at the Supreme Court: in the 1990s, with the termination of office of judges sworn in to the court when it was still controlled by the Communist Party. Those wishing to continue working in the new Supreme Court were vetted, with any sensitive cases they had been involved in carefully evaluated.
2. “We have public support”
Leading figures from PiS frequently claim that their judicial policies have public support. Yet they do so by deliberately distorting polling figures, claiming that general public support for the idea of judicial reform equates to support for PiS’s specific changes. In fact, it does not: most Poles express opposition to these judicial policies.
A recent example came when Patryk Jaki, the former deputy justice minister and now a PiS MEP, wrote to fellow members of the European Parliament to defend the government’s judicial changes by arguing that “almost 80% of Poles support the reform of the judiciary”.
The polling he cited does indeed show that around 80% of respondents believe “reform of the judiciary is necessary”. But it also shows that a majority oppose PiS’s specific reforms: 69% said President Duda’s decision to veto two of PiS’s judicial bills in 2017 was correct; 64% said they do not trust PiS to reform the judiciary, and only 23% said that they do.
3. “We’re improving efficiency”
One of the reasons so many Poles favour the idea of judicial reform is dissatisfaction with the (lack of) efficiency of the current system. In a 2013 CBOS poll, 51% of respondents agreed that the protracted nature of proceedings is the main problem with courts.
PiS therefore also justifies and defend its overhaul of the judiciary by claiming that it has created a fairer and more efficient system. But there is no sound evidence that this is true – and plenty to the contrary.
President Duda’s deputy chief of staff, Paweł Mucha, for example, pledged to continue judicial reforms “because we need to decrease the length of proceedings”. But there is no publicly available evidence of any improvements in this regard since PiS came to power.
The justice ministry’s press office published a statement claiming that some case categories in certain types of courts indeed take less time, but without providing any data sets and comprehensive records to back the claims.
By contrast, the Helsinki Foundation for Human Rights found that in 2018 there were 1,700 more complaints for excessive duration of proceedings filed than in 2016. The “Iustitia” Association of Polish Judges estimated that in 2019 an average proceeding lasted 81.7 days, while in 2015 the figure had been 55.6.
The president of the Constitutional Tribunal, Julia Przyłębska, who was put in the position by PiS as part of its overhaul of the institution, maintains that “the Tribunal is working as usual”. But the data suggest otherwise.
Its work has got much slower: the Tribunal considered only 88 cases in 2017, down from an average of 140 between 2010 and 2015. And there are fewer incoming cases to the Tribunal because judges and other institutions do not trust it to perform independent judicial review, and also fear that its verdicts could be questioned as judgements are being made by people sworn in to replace lawfully elected judges.
The Tribunal is also delaying taking decisions in sensitive political cases that are crucial for safeguarding individual rights and freedoms. For example, since 2018 it has not decided whether a law lowering retirement pensions and other benefits for individuals who worked for branches of the communist state conforms to the constitution (case P 4/18). Several thousand people in Poland have therefore had their retirement pensions diminished.
4. “The special caste needs to go”
One of PiS’s more populist arguments is that judges are a special “caste” that needs to be replaced by a new elite which can better serve justice in the interest of “the people”. Judges are vilified as privileged and corrupt, considering themselves “above the law”, disconnected from citizens’ daily plight and insensitive to their quest for justice.
Senior government figures routinely accuse judges protesting against the judicial changes of defending their unearned and unjustified privileges, including relatively high wages and pensions. Even a separate system of disciplinary responsibility for judges is presented as a form of unwarranted “privilege”. The planned new, harsher system is presented as a solution to end “impunity” resulting from “old-boys-club” networks in the judiciary.
President Duda even claimed that “so far, disciplinary responsibility has been an illusion”, and stressed that the new disciplinary chamber – created in the Supreme Court and packed entirely with judges recommended by the new National Council of the Judiciary – is free of “the most dangerous type of influence” – not from politicians, but from other judges.
Yet these supposed “privileges” are in fact mechanisms to ensure judicial independence from external pressures. Part of the reason why judges receive relatively high pay and pensions is to minimise the risk of corruption. The principle of self-government of judges and their special model of disciplinary responsibility also aim to reduce external and political influences.
Contrary to Duda’s claims, the judiciary already had an effective disciplinary system for judges. According to official Supreme Court data, in 2017 its criminal chamber considered 60 cases related to disciplinary responsibility of judges. In one, a judge was deposed from the court – the harshest disciplinary penalty for a judge – while in two others, judges were stripped of retirement pensions.
5. “None of your business”
Since the European Commission launched a political “dialogue” procedure from Article 7(1) of the Treaty of the European Union, and then also referred a string of EU law infringement cases against the Polish government to the CJEU, PiS politicians have insisted that organisation of the judiciary is an internal competence of EU member states and that such interferences in internal affairs are unwarranted. They later used this argument to undermine CJEU rulings regarding lowering the retirement age of Supreme Court and common court judges.
For instance, Jacek Sasin, a deputy prime minister, said that “Poland is a sovereign country and shapes its own legal system, including the judiciary. These are not issues governed by European law”.
It is true that all EU member states can decide how to organise and administer their judiciary. But the outcome must always comply with EU law, including the principle of judicial independence derived from that of effective judicial protection. The CJEU reaffirmed this in its 19 November 2019 ruling.
PiS politicians also argue that the CJEU does not have a mandate to interfere in matters concerning judicial independence. This is no longer the case since February 2018, when the court ruled on Portuguese judges. In reaction to the rule of law crisis in some EU member states, in this judgement the CJEU established that it is competent to evaluate guarantees of independence of judges under Article 19(1) of the Treaty on the EU.
The fundamental principle of EU law is mutual trust, meaning that EU member states recognise judgements pronounced in other EU member states. But countries and individuals are entitled to monitor the situation elsewhere and sound the alarm when they see an assault on the rule of law and fundamental rights protection.
6. “What about France?”
Lastly, a “comparative” argument states that the mechanisms that PiS is implementing already exist in other member states, especially those with the reputation of being established constitutional democracies, such as Germany, France and the Netherlands.
For example, in December 2019, a deputy justice minister, Sebastian Kaleta, claimed that one provision of the new disciplinary measures against judges is copied from French law. His argument was quickly debunked by the French constitutional and EU law professor Laurent Pech, who demonstrated that the article in question could not justify violations of judicial independence, as the Polish provision would, as well as quoting French doctrine and court judgements to explain its highly limited application. French law professors are now collecting signatures under a draft open letter against “the instrumentalisation of French law by the Polish government”.
Legal systems in the EU states share historical and contemporary similarities – and are being increasingly harmonised in certain areas – but simply “transplanting” a provision or mechanism from one jurisdiction to another does not automatically make it conform to national, EU and international law. Nor does it mean that it will have a similar effect on individual rights and freedoms. New provisions must always be evaluated in the context of other elements of the legal framework. The country’s political and legal culture also influence how the provision will affect the rule of law and fundamental rights.