Polish justice ministry outlines new plan to resolve status of 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 unveiled new plans for how to deal with the status of around 2,500 judges who were appointed by a body rendered illegitimate by the judicial reforms of the former Law and Justice (PiS) government, as well as rulings issued by them.

Under the proposal, improperly appointed judges would be barred from the Supreme Court and judges who received promotions after PiS’s reforms would return to their original courts.

Even if the plans are approved by the government and its majority in parliament, they face a possible veto by PiS-aligned President Karol Nawrocki, who has previously expressed opposition to questioning the status of judges appointed after PiS’s reforms.

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

The justice ministry notes that such “neo-judges”, as they are known, now make up 28% of all judges on district, regional and appellate courts, and 60% at the Supreme Court.

In April this year, Poland’s then justice minister, Adam Bodnar, presented a plan for how to resolve the situation. However, after he was replaced in July by Waldemar Żurek, Bodnar’s proposal was withdrawn. Today, Żurek presented his own plan.

It would allow judges who took up their first job after graduating from the National School of Judiciary and Public Prosecution (KSSIP) to keep their positions, despite the involvement of the illegitimate KRS in their appointment.

Meanwhile, judges who received promotions through the illegitimate KRS would be formally returned to their previous positions. However, they would be given a two-year secondment to remain at the court where they have been working until now in order to complete ongoing cases.

Once the legitimacy of the KRS has been restored, they would be allowed to enter the recruitment contest for the position they had been demoted from.

Finally, “neo-judges” would be barred completely from the Supreme Court. “Their appointments are deemed invalid and they are not allowed to remain on delegation to the Supreme Court,” writes the justice ministry.

Rulings issued by improperly appointed judges would generally remain valid, but can be overturned in cases where affected parties have already consistently challenged the legality of the adjudicating panel.

This will help ensure “stability and legal security for citizens”, ensuring there are “no doubts” about rulings issued with the involvement of “neo-judges”, says the justice ministry.

Meanwhile, the proposed measures would completely abolish the Supreme Court’s chamber of extraordinary review and public affairs, a body created by PiS, staffed entirely with “neo-judges”, and deemed illegitimate by Polish and European court rulings.

“We want to restore the proper functioning of the justice system as quickly as possible,” added Żurek, presenting the bill.

Deputy justice minister Maria Ejchart noted that the PiS-era judicial reforms have cost Polish taxpayers nearly 3 billion zloty (€710 million) due to financial penalties imposed by the European Court of Justice, while rulings by unlawfully appointed judges have cost more than 5.5 million zloty in compensation.

However, PiS politicians denounced the ministry’s proposals as politically motivated and unlawful. The party’s leader, Jarosław Kaczyński, accused Żurek of “blatantly breaking the law” and said that, once “a lawful state…is restored, Mr Żurek will have to sit for a long time in prison”.

Former PiS deputy justice minister Sebastian Kaleta called the bill a recipe for “purges, blacklists and revenge”, accusing Żurek of wanting to decide “single-handedly who is and who is not a judge in Poland”.

Kalata added that “it is unlikely that this bill will become law”. Even if the legislation is adopted by the government and approved by its majority in parliament, PiS-aligned President Karol Nawrocki appears likely to veto it or send it for review to the Constitution Tribunal (TK), another body aligned with PiS.

During his campaign for this year’s presidential election, Nawrocki argued that Poland’s judicial problems began long before the 2018 reform of the KRS, pointing instead to the continued influence of judges who served under the communist regime, which ended in 1989.

“I will never agree to treat a judge appointed after 2018 worse than one appointed by the communist Council of State,” he told Dziennik Gazeta Prawna in March.

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: Ministerstwo Sprawiedliwości (under CC BY-NC-ND 3.0 PL)

Alicja Ptak

Alicja Ptak is senior editor at Notes from Poland and a multimedia journalist. She previously worked for Reuters.