Polish justice ministry outlines plans for illegitimately appointed judges

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Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Poland’s justice ministry has announced how it plans to deal with around 2,500 judges appointed by a body rendered illegitimate by the former Law and Justice (PiS) government’s judicial reforms.

Under the proposal, which has been submitted to the Council of Europe’s Venice Commission for an opinion, judges would be divided into three colour-coded categories – green, yellow and red – on the basis of how they were appointed and, therefore, what consequences they will now face.

At the heart of the dispute is the National Council of the Judiciary (KRS), the body constitutionally tasked with nominating judges to Poland’s courts. In 2017-18, the KRS was reconstituted by PiS. Its members, previously chosen mainly by judges themselves, were now nominated mostly by politicians.

In 2019, Poland’s Supreme Court ruled that, due to PiS’s reforms, “the KRS is not an impartial and independent body” as it had been rendered “dependent on the executive authorities”. In 2022, the same court found the KRS to no longer be consistent with its role outlined in the constitution.

In 2021, the European Court of Human Rights likewise found the overhauled KRS was no longer independent from legislative or executive powers. The same year, Poland became the first country to ever be expelled from the European Network of Councils for the Judiciary.

The defects in the KRS have had a knock-on effect because they have called into question the legitimacy of the thousands of judges appointed through it after PiS’s reforms – and, by extension, all of the judgments issued by them.

However, even many proponents of reversing PiS’s reforms have argued that it would be impractical and unfair to simply cancel all appointments made by the KRS after it was overhauled.

In an announcement made late on Friday evening, the justice ministry revealed that it plans to address those concerns by dividing the judges in question into three categories, each of which would be treated differently.

The “green group”, estimated to constitute around 900 people, would include “novice judges, often in a forced situation”. That refers to those who were newly qualified and, if they wished to work as judges, had no choice other than to be nominated by the KRS.

Such individuals would have their positions “confirmed by the legal KRS” after it is restored to legitimacy, says the justice ministry.

Meanwhile, a “yellow group”, estimated to be 1,200 strong, would include judges promoted from one position to a more senior one by the KRS. Those individuals would be demoted back to their previous position.

However, in order not to disrupt the judicial system by suddenly moving a group that represents over 10% of all judges, they would remain in their current positions – receiving their current levels of salary – for two years.

Finally, the “red group”, containing around 430 people, would consist of those who were made judges after previously working in other professions. They would be returned to their previous professions, if accepted there, or could become referendaries, a more junior type of court official.

In an interview with financial news website Money.pl, deputy justice minister Dariusz Mazur said that they were aiming to have the relevant legislation ready to be signed “almost immediately” after a new president comes to office in August.

The incumbent, Andrzej Duda, is aligned with PiS and has blocked efforts by the government to reform the judicial system. Last year, he sent a bill passed by parliament to restore the KRS’s legitimacy to the constitutional court – another PiS-influenced body – effectively killing it off.

The government hopes that a more friendly president will be chosen at next month’s elections, allowing them to proceed with judicial reforms. Regulating the status of judges is “essential to rebuilding trust in the Polish justice system” and “restoring the rule of law in our country”, said Mazur.

Money.pl asked the deputy justice minister whether judges in the yellow and red groups could be allowed to remain permanently in their current positions if they passed “impartiality tests”, as has been suggested by human rights commissioner Marcin Wiącek.

“This would require individual verification of each person, which in our opinion is impossible to do, at least not within a reasonable time,” replied Mazur. “We cannot afford to destabilise the entire judiciary and give society the feeling that the judiciary is stewing in its own juices for many years instead of resolving citizens’ cases.”

“There were countries where such methods were tried on an incomparably smaller scale and it did not work anywhere,” he added, without giving examples.

The justice ministry’s newly presented plans were prepared in response to an opinion issued last October by the Venice Commission, a body of experts in constitutional law that advises the Council of Europe.

They recommended that judges nominated by the defective KRS should not face ” wholesale blanket exclusion” and should be given “individual assessment”. However, they added that such assessment could take the form of dividing judges into “cohorts” based on the manner of their appointment.

Speaking to Money.pl, Mazur revealed that the justice ministry would present its latest plans to the Venice Commission this month and ask for a further opinion to be issued at their June meeting – or, if not, then in October at the latest.

However, he noted that the legislation could begin being processed by parliament even before that opinion is issued, with amendments added later if necessary.

The minister acknowledged the difficulties they would face pushing through the changes. “Apart from the postwar times, when everything was built from scratch, this is the biggest and most difficult problem that has affected the judiciary in the Western part of the civilised legal world,” he said.

Mazur also revealed that previous rulings issued by defectively appointed judges would remain binding. However, there would be a one-month window in which parties could file a request to reopen a case, on the condition that they have previously consistently raised objections to the lack of independence of a judge.

The minister admitted that accepting rulings issued by illegitimate judges is not ideal. But he noted that millions of decisions are made by courts every year, and that reopening even a fraction of these would cause chaos and overwhelm the system.

Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Main image credit: Grzegorz Żukowski/Flickr (under CC BY-NC 2.0)

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.