If Brussels buys Duda’s offer, it will turn judges into fools and condemn Poland to a drift towards dictatorship
The European Commission is to decide whether to unfreeze billions for Poland from the EU’s Reconstruction Fund. It should not ‘buy’ President Duda’s or the Law and Justice party’s (PiS’s) offer. It needs to demand the full restoration of the rule of law. Otherwise, it will condemn the courts to ultimate destruction, reward ‘sly judges’ and antagonise the judicial community.
If the European Commission ‘buys’ Duda’s proposals, it will send a signal to the independent judges that they were stupid. That instead of exposing themselves to repression in the name of the fundamental European values, it was better to get promoted. That it is not worth being decent and courageous.
The European Commission has been demanding that the PiS government comply with two rulings of the Court of Justice of the European Union since the summer of 2021. The consequence of these rulings of the European court must be the liquidation of the illegal Disciplinary Chamber, the reinstatement of the judges suspended by it and changes in the disciplinary system for judges.
The head of the European Commission, Ursula von der Leyen, has made payment to Poland of 163 billion euros from the Reconstruction Fund, which is intended to support the economies of the EU countries after the epidemic, conditional on the fulfillment of these three conditions.
The EC’s adamant demand to implement the CJEU’s rulings is a change of the position of Brussels expected by many in Poland after having previously tried to come to an arrangement with PiS at the cost of peace in times of turbulence.
However, PiS, together with Zbigniew Ziobro, treated the earlier lack of firm reaction to the destruction of the rule of law and free courts as an incentive to go further in their autocratic zeal. And it forced through successive laws introducing even greater subordination of the courts and judges to the authorities. The battering ram only stopped when the EC adamantly demanded the implementation of the CJEU’s rulings from July 2021 and shut off the flow of Eurofunds.
The coming weeks will show the fate of not only the Polish judiciary, but also whether Poland will still be a democratic state or whether it will move even closer to the Belarusian model.
PiS and President Andrzej Duda will be persuading the EC to unblock money from the Reconstruction Fund. They promise to implement the CJEU rulings of July, which is to be achieved by the draft amendments to the regulations they have submitted to the Sejm.
The CJEU will issue a very important judgment on Wednesday, 16 February 2022, on the money-for-the-rule-of-law mechanism, which allows the EC to block funds from the EU budget for countries that break EU law. The judgment could confirm that Brussels has the right to use this mechanism. But even more important will be whether the Commission will want to take advantage of it.
There is a risk that now – while Russia is threatening Ukraine with war – Brussels will want to make a deal with the PiS government. And it will soften its course on the rule of law. However, this would be the worst possible decision. Because neither the President’s bill nor PiS’s bill resolve the most important problems. Furthermore – they will only increase the problems in the courts.
And if the European Commission ‘buys’ them, giving the government billions of euros to spend, it will lose the opportunity to save the Polish courts. Because neither Jarosław Kaczyński nor Minister of Justice Zbigniew Ziobro will forego their plans to destroy them completely. At most, they will postpone these plans for some time. This is because, for them, the courts are one of the last barricades to be overcome – the next are the free media – on the way to building a nationalistic-religious state, fully subordinated to PiS.
Why the EC should not accept Duda’s and PiS’s proposals
Why should the European Commission not give in to PiS? There are several reasons.
The draft amendments to the regulations proposed by both President Andrzej Duda and the PiS MPs primarily do not implement the judgments of July 2021 and do not resolve the most important problem related to the Polish courts.
Of course, PiS and the president can say that changes will be made to the illegal Disciplinary Chamber. They can say they will make changes to the disciplinary system for judges and promise to reinstate the suspended judges. But these are not changes in the spirit of the CJEU’s judgments.
The CJEU questioned the legality of the Chamber mainly because it does not have the features of an independent and impartial court. This is because its members were appointed by the new, politicised National Council of the Judiciary, which was staffed by PiS together with Kukiz 15. The neo-NCJ is a different body to that specified in the Polish Constitution, which states that ‘the National Council of the Judiciary shall safeguard the independence of courts and judges’.
In several other judgments, both the CJEU and the ECtHR held that the Council is a body that is not independent of politicians. As such, the judges it nominates (neo-judges) do not guarantee citizens a trial before an independent and impartial court. And such a right is guaranteed to citizens by both the Convention on Human Rights and EU law.
A simple conclusion arises from this.
If the neo-NCJ itself is illegal, it cannot give legal appointments to judges. Furthermore, neo-judges are not, in principle, legal judges.
If the neo-NCJ itself is illegal, it cannot give legal appointments to judges. Furthermore, neo-judges are not, in principle, legal judges.
In their judgments of 2021 and 2022, the CJEU and the ECtHR already questioned the legality of the neo-judges in three Chambers of the Supreme Court. These are the Disciplinary Chamber and the Chamber of Extraordinary Control and Public Affairs, which were established by PiS, as well as the Civil Chamber.
In the light of these judgments, Małgorzata Manowska, who is performing the function of First President of the Supreme Court, is also not a legitimate judge. Even Deputy Minister of Justice Marcin Warchoł has no doubts that this is how the judgments should be construed. After the latest ECtHR judgment a fortnight ago, he said that, in the light of this judgment, Manowska is not a judge of the Supreme Court.
Meanwhile, what are the president and PiS proposing in their bills regarding the Disciplinary Chamber?
Instead of serious, major changes, they want to cover up the problem with make-up.
They are leaving the neo-judges in the Supreme Court. They are still to adjudicate in the disciplinary cases of judges, only under a different name. They are also not guaranteeing the reinstatement of the suspended judges, but are putting them at the mercy of perhaps further neo-judges.
Furthermore, neither of the bills implements the CJEU’s interim measure of 14 July 2021. Whereas, in that interim measure, the CJEU suspended the provisions of the Muzzle Act which allows judges to be punished for implementing the judgments of the CJEU and the ECtHR. Judges are using these as the basis for challenging the status of neo-judges, for which they receive disciplinary action and are constantly being suspended.
However, neither of the bills makes any changes to the Muzzle Act. Quite the contrary, they are introducing further regulations intensifying the penalisation of judges for applying EU law. And, if only for these reasons, the European Commission should not agree to these propositions. The president and PiS want to sell it the old but re-packaged product, under the pretext of implementing the judgment.
The EC must not forget about the neo-NCJ
However, the problem with the functioning of the Chamber is much deeper. The European Commission should also demand that it be dissolved, right now. This applies to the neo-NCJ and the neo-judges. The government and the president do not want to talk about it at the moment, but after the meetings with Duda, there were signs from the EC that it will leave the problem of the neo-NCJ to be solved later. If this happens, the Commission will make a mistake.
Because PiS is not assuming any changes in the neo-NCJ. On the contrary, a procedure for electing 15 judge-members for the Council’s second term of office has been initiated. The 15 candidates are already known. They are mainly its current members, but also the former deputy minister of justice, Łukasz Piebiak, whose name appeared in the context of the hate scandal.
The Council for the second term of office will be elected in the near future. And it is already clear that nothing will change. It will continue to issue defective nominations to further judges, frequently ‘their own’, as will be discussed below. It will still be politicised, because the judges who are its members are largely connected with the minister of justice and are beneficiaries of his ‘reforms’ in the courts.
Furthermore, some of them, such as Maciej Nawacki, have become known to be supporters of a harsh course in the courts. If Łukasz Piebiak is added to it, the neo-NCJ will become radicalised. And after all, its membership had an influence on the fact that the European courts assessed that it is not independent of politicians.
So what is the EC counting on by postponing this problem until later? If PiS receives the money now, it will have no reason to make any further concessions. All the more so that Minister Ziobro and his people do not want to make any.
The EC must not forget about the neo-judges
Additionally, the President’s and PiS’s bills do not address the neo-judges. And this is a serious problem. Because there are already 1,500–2,000 such judges nominated by the neo-NCJ, including approximately 50 in the Supreme Court.
These are judges who were appointed by a defective body and, therefore, in the light of the judgments of the ECtHR and the CJEU, their legitimacy and the legitimacy of their judgments can be contested. This is a serious problem for citizens because it brings chaos to the courts. This is because the judgments issued by neo-judges are unstable.
PiS will not make any concessions to the EC regarding neo-judges. Neither will President Duda. At a meeting with the opposition, he announced that the appointments of the neo-judges are immovable at least until the end of his term of office. It seems that it is not known what should be done with them.
They cannot simply be left as they are, because we have several judgments of the ECtHR and the CJEU each saying that they are defectively appointed and these judgments have to be executed. The defectiveness of the nominations also constitutes grounds for challenging their rulings, not only in Poland, but also before the ECtHR. They cannot simply be legalised because of the judgments of the EU courts. Likewise, this cannot be done for substantive and moral reasons, which will be discussed below.
A heated discussion is taking place in the legal world on what to do with the neo-judges. For the time being, the only proposal has been presented by the association of judges, Iustitia, which has prepared a bill restoring the rule of law. The bill comprehensively implements the rulings of the CJEU of July 2021, but also the other rulings of the CJEU and the ECtHR; it was submitted to the Sejm as the opposition parties’ own bill.
The bill proposes a simple and quick solution to the most important problems. Other than the liquidation of the Disciplinary Chamber, it envisages the abolition of the current neo-NCJ (to be replaced by a Council made up of judges chosen through elections in the courts) and the withdrawal of nominations for neo-judges, including in the Supreme Court.
This is to ensure the rapid restoration of a clear legal situation in the courts. Everyone who was promoted by the neo-NCJ would simply return to their previous positions. If they wanted to keep their promotions they would have to enter the recruitment again, but this time before the legal NCJ.
How the opposition wants to resolve the problem of neo-judges
Only PSL and Hołownia’s Polska 2050 have not signed the opposition’s bill. They have a different idea for the neo-judges – they do not want to automatically invalidate all nominations. They believe that this will affect the citizens, because cases will be interrupted. PSL wants to leave the neo-judges in place. So does Holownia’s movement, although it proposes vetting them procedurally (by challenging their impartiality and disciplining them) or before the legal NCJ with the involvement of the Assemblies of Judges (this is a form of judicial self-government).
PSL and Holownia’s movement are still concerned about district court judges who entered the judicial profession from the position of assessor. They believe that they are not guilty of anything, because this is their first nomination.
Only that the bill submitted by the majority of the opposition parties does not introduce any chaos, nor does it affect the citizens. Quite the contrary. It proposes a surgical cut to resolve a number of problems that have arisen as a result of Ziobro’s ‘reforms’. And in doing so:
- there will be no automatic overturning of judgments passed by neo-judges. In principle, they will remain in force.
- there will also be no mass interruption of cases, because the neo-judges will receive secondments to complete them.
- there will also be no expulsion of assessors from the profession, because they will be the only ones to retain their nominations to the offices of district court judges. They will only need to have their qualifications verified, this time before a legitimate NCJ.
Leaving neo-judges would be a reward for failing an examination in times of trial
There are several arguments in favour of Iustitia’s/the opposition’s bill.
Firstly, it is a quick operation to reverse the judicial nominations to the defective neo-NCJ. There are no settlements, verifications, disciplinary or criminal cases (for overstepping powers) that last years. A situation which is consistent with the Constitution and the judgments of the ECtHR and the CJEU is recovered quickly.
Secondly, the judicial environment is not antagonised. Today, many of them defend the rule of law in the courtroom in their judgments or outside the courtroom by going out to the people and on the streets. They are already symbols of judicial freedom, such as Waldemar Żurek, Igor Tuleya, and Paweł Juszczyszyn. But many of them are paying a high price for this in the form of disciplinary action, criminal cases and suspensions. Repression is taking place on a massive scale.
It was these judges who passed the examination in times of trial. They showed that not only are they independent and brave but that they also have a strong backbone, do not yield to the authority, and have high ethical values. They are the judges that the citizens need today.
On the other side, we have judges who have decided to collaborate with the authorities in return for positions, such as Maciej Nawacki and Łukasz Piebiak. And others took advantage of the opportunity and went to the neo-NCJ for promotions. We did not hear their voices at times of trial.
Legalising neo-judges would send a bad, tragic signal to the whole of the judicial community.
It would be a reward for those who took advantage of the opportunity and ‘set themselves up’ by cooperating with the authorities or at least by sitting quietly. It would send a message to the independent judges that they were fools. That instead of exposing themselves to repression in the name of fundamental values, it was better to get promoted. This would send the message that it is not worth being decent and brave.
The legalisation of the neo-judges is a simple recipe for making deep divisions in the courts and creating a sense of injustice in those who today defend their independence. This is finally a sign that says it pays to be conformist and to go with the flow. Are these the types of judges we want?
The neo-NCJ has given many promotions to ‘their own’
Additionally, nominations for neo-judges cannot be upheld for yet another reason. They were given not only by a defective body, the membership of which is in conflict with the Constitution.
Many recruitments primarily did not have the features of being competitive, while decisions on who to nominate were often discretionary, with promotions going to ‘their own’ rather than the best candidates.
The vast majority of judges first boycotted the elections to the neo-NCJ, knowing that independent candidates would not stand a chance anyway. Then they boycotted the recruitments before the neo-NCJ, which was mainly staffed by judges working with the ministry of justice.
Independent candidates did not enter the recruitments because they questioned the legitimacy of the NCJ. They also knew that they did not have a chance of being promoted. There were recruitments, especially to the Supreme Court, in which so-called ‘kamikaze’ judges from Iustitia took part; and, as expected, they did not receive nominations.
In this situation, only one candidate often took part in the recruitments for one vacancy, and won in the preliminary rounds. In other recruitments, where there were more candidates, the Council often gave nominations in conflict with the recommendations of its own candidate assessment panels. The votes were won by weaker candidates and those with serious reservations.
Importantly, the judicial self-government, namely the Assemblies of Judges and Boards operating at the courts, were required to give their opinions on the candidates for promotion earlier. These opinions were often negative. But PiS excluded judges from giving opinions on promotions in the Muzzle Act several years ago. That is why it was so easy for ‘their own’ people to receive nominations – because PiS had diluted the procedure.
And so the neo-NCJ nominated Minister Ziobro’s disciplinary commisisoners, court presidents nominated by Ziobro, and even entire families (husbands, wives, sisters, daughters, etc.) to courts of higher instances. It promoted judges with poor appraisals of their work, judges with disciplinary problems, and even former members of PiS.
Numerous promotions were even ‘fairy tale’ careers. The neo-NCJ frequently gave promotions that jumped several rungs. Even people who previously had no experience in court were promoted to the highest ranks, although the rule should be to climb the judicial ladder every few years to gain experience at each level and become an increasingly better judge. And now people from outside the judicial profession have even been allowed in to the Supreme Administrative Court, which is equal in rank to the Supreme Court.
The neo-NCJ gave such promotions because its hawk faction, i.e. Council members associated with the former deputy minister of justice, Łukasz Piebiak, is in the majority. This faction supports Ziobro’s ‘reforms’ and a harsh course in the courts. It includes Maciej Nawacki, Rafał Puchalski and Dariusz Drajewicz. They are supported in their votes by the PiS MPs. And they vote through whatever they want.
Who ended up in the Supreme Court and the Supreme Administrative Court? Promotion of the deserving (with families)
There are plenty of examples of such ‘fairy tale promotions’. Such promotions can also be seen in the letters of support for the candidates for the second term of office of the neo-NCJ. They are mainly signed by the beneficiaries of the bad change in the courts, namely court presidents and neo-judges promoted by the current Council. Were they demonstrating their gratitude for their promotion with their signature? These letters of support show what kind of system of dependence was created in the courts as a result of Ziobro’s ‘reforms’.
Will these promotions be fair to citizens who have not only the right to a trial before an independent court, but also the right to have their case handled by the best judge on its merits? Will they be fair to the many excellent judges who, to be consistent with the Constitution and their conscience, have refrained from such promotions?
Arguments can be heard that not all candidates were bad or weak. That many professionals especially went to the administrative courts and cannot now be punished. Yes, there are such people. But people without the necessary experience also went to the administrative courts, and there were even promotions in conflict with the rules.
Meanwhile, the Supreme Administrative Court has even become a storage place for judges associated with the bad change in the courts and Minister Ziobro.
Several examples of who the neo-NCJ promoted and how: nominations to the courts of the higher instances were given to neo-NCJ members Dagmara Pawełczyk-Woicka (to the Regional Court), Maciej Nawacki (to the Supreme Administrative Court), Rafał Puchalski (to the Court of Appeal), and Joanna Kołodziej-Michałowicz (to the Regional Court).
Their families were also promoted. Pawełczyk-Woicka’s partner, namely Dariusz Pawłyszcze, received a nomination (all the way to Supreme Court). In turn, Joanna Kołodziej-Michałowicz’s husband, namely Andrzej Michałowicz, received a nomination to the office of judge of the Regional Court of which he is the president. The neo-NCJ also promoted Kołodziej-Michałowicz’s sister, namely Ewa Kołodziej-Dubowska, to the Regional Court.
Minister Ziobro’s disciplinary commissioners, who are known for prosecuting independent judges, have been promoted. They are Piotr Schab, Przemysław Radzik (both to the Court of Appeal) and Michał Lasota (to the Regional Court). Radzik’s wife, Gabriela Zalewska-Radzik, was also promoted to the Supreme Administrative Court. She was promoted to this important court, although she had previously only been a legal adviser.
Minister Ziobro’s former deputies – Łukasz Piebiak and Anna Dalkowska – also got into the Supreme Administrative Court. Both had been District Court judges until then. Just like Paweł Mroczkowski, who also got into the Supreme Administrative Court thanks to the neo-NCJ. His ‘advantage’ was that he was working on secondment to the ministry of justice. All were sent to adjudicate on important, complicated administrative cases.
Attorney-at-Law Jacek Milczarek, husband of Anna Kuśnierz-Milczarek, president of the District Court in Gorzów Wielkopolski, will also be promoted to the Supreme Administrative Court. Jarosław Dudzicz, a member of the neo-NCJ, also comes from Gorzów. Was this the reason for this nomination?
The neo-NCJ also gave numerous controversial promotions to the Supreme Court and ordinary courts. It is enough to recall that the Disciplinary Chamber is composed almost entirely of former prosecutors and judges cooperating with Ziobro. The Supreme Court is headed by Małgorzata Manowska, a former deputy of Minister Ziobro, while the Chamber of Extraordinary Control and Public Affairs is headed by Joanna Lemańska, a close friend of the presidential couple.
In 2021 alone, the following were promoted to the Supreme Court: Piotr Kwiecień, an attorney-at-law associated with ‘Gazeta Polska’, Renata Żywicka, a judge from Elbląg, and Dr Elżbieta Karska, PiS MP Karol Karski’s wife. Renata Żywicka is the wife of Piotr Żywicki, president of the Regional Court in Elbląg, who was also promoted thanks to the neo-NCJ. He received a nomination to the Court of Appeal in Gdańsk. Both are now signing letters of support to the NCJ.
Promoted: a member of PiS, an airline steward, a court president’s daughter…
And some more examples of promotions showing whose ‘career is thriving’ in the courts:
– Tomasz Kosakowski. He is a former attorney-at-law who belonged to PiS. He gave up his party membership card during the recruitment before the neo-NCJ. During the recruitment, he also contributed 12,500 zlotys to the PiS election fund. He is a judge of the Regional Court in Olsztyn. He is now signing letters of support for the candidates for the second term of office of the neo-NCJ.
– Karol Rzęsiewicz. Until recently, he was studying law part time and was an Emirates Airline steward. When PiS came to power in Poland, he started working at the ministry of justice. He served on the commission on reprivatisation in Warsaw. Recently, despite the rules, the neo-NCJ nominated him all the way up to the office of judge of the Voivodship Administrative Court in Wrocław. He defeated numerous experienced candidates.
– Sławomira Lerman-Balsaux. In April 2020, the neo-NCJ nominated her judge of the District Court in Łódź. She was promoted even though she did not meet the requirements. She had previously been an assessor, but only for seven months, although the required length of service in this position is 36 months. She issued few judgments. She is the daughter of Sławomir Lerman, vice-president of the Court of Appeal in Łódź nominated by Ziobro’s ministry. This is an argument in support of at least checking the qualifications of the assessors who were promoted to district court judges.
– Mieczysław Oliwa, president of the Regional Court in Bydgoszcz, nominated by Ziobro’s ministry. The neo-NCJ promoted him to the Supreme Court in June 2021. This is an example of a promotion referred to as a jumper. In other words, someone who jumps quickly from one rung to another. Only three months earlier, Oliwa had been appointed by the President to the office of judge of the Court of Appeal in Poznań and had not worked there as a judge for a single day. He also received that promotion from the neo-NCJ.
There are many more examples of such promotions. And this is a further argument for cancelling promotions for neo-judges. We need to make sure that there are no random people without the required experience or that there is nobody who has been promoted for cooperating with the PiS government, especially at the highest levels of the judiciary. This will also be to the benefit of the citizens.
Neo-judges should disappear from the Supreme Court in particular, because leaving them in place will cast the changes made by PiS in concrete. They will also create court rulings and decide who will be disciplined and who can be prosecuted. Is this what we want?
Szymon Hołownia’s Polska 2050 criticises Iustitia’s bill and states that it would be better to vet neo-judges. This could even be considered on condition that it could be done quickly and with the involvement of the judicial community. But Polska 2050 only gave this a mention without giving any detailed propositions. But the devil is in the details, because the restoration of the rule of law cannot last for years.
PiS must be held accountable for breaching the Constitution and attacking the courts.
Another argument is raised in the discussion about neo-judges – that the withdrawal of nominations is inhumane and collective responsibility is being introduced. Polska 2050 emphasises that compromise solutions must be sought in times of transition between changes in the regime. This is how it was in Poland when we were leaving the People’s Republic of Poland. There was no accountability and no vetting of judges. Everyone was given a chance to work for a free Poland. Polska 2050 also gives the example of South Africa moving away from apartheid.
But these are not the best examples. The People’s Republic of Poland was not a democratic country. The ‘socialist regime’ was imposed on us by force and lasted 44 years. When leaving it, it was reasonable to refrain from holding people accountable, because everyone was ‘implicated’ in it in some way. People were also needed to build a free Poland. Finally, it was only in 1993 that the Soviet troops left Poland. Excessively rapid democratisation could have been stopped by Soviet tanks – this was generally feared.
Today, we have a different political situation. Poland is in the EU and NATO, namely two of the most important pacts in the western world. Membership of the EU is an obligation, because the EU is based on the fundamental values of democracy, respect for the law, freedom and equality.
Meanwhile, the Law and Justice Party (Prawo i Sprawiedliwość, PiS), enthused by the lack of accountability for its first rule in 2005–2007, started to dismantle democracy and change the system of government, circumventing the Constitution. Hardly anyone remembers an independent Constitutional Tribunal, an independent prosecution service or civil service corps. The authorities have stopped at the courts for the time being, but their appetites are bigger.
They are going for the schools, and want to take the free media. They want to have full power. In this way, PiS is slowly taking us out of the democratic bloc of the EU. It is reversing the changes made over the last 30 years, reverting to the solutions known from the People’s Republic of Poland, when everything was subordinated to one party. And it is becoming part of the undemocratic governments or so-called electoral autocracy known from Putin’s Russia, Erdogan’s Turkey, Orban’s Hungary and Jansa’s Slovenia.
PiS and its helpers must be held accountable, while the rule of law must simultaneously be restored.
But what do the neo-judges have to do with this? They have seized the opportunity of limited democracy and have gone for promotions from a politicised body. Therefore, the question to be asked is whether they are still capable of being independent, of displaying an appropriate ethical attitude. When they come to judge people from the the current government in the future, will they give an independent verdict, or will they remember to whom they owe their promotion? Finally, are they qualified to adjudicate at such high levels to which they jumped when taking advantage of the opportunity?
However, instead of going into complicated and lengthy processes of holding them accountable, it is better to zero out the situation by revoking their promotions. And repeat all the recruitments before a legal NCJ.
The European Union should bear all this in mind. Today, it still has the tools to influence the PiS government.
If it unblocks funds without imposing exorbitant conditions, it will lose a unique opportunity to restore the rule of law breached by the Polish government at least in part. It will also squander the work performed by the independent judges, including from the Supreme Court, in defence of the rule of law and independent courts.
It was they who submitted questions to the CJEU for a preliminary ruling, which were followed by landmark judgments regarding the Disciplinary Chamber, the NCJ and neo-judges. Today, the judges from the preliminary ruling questions are still in court, but who knows how long PiS and Ziobro will allow them to continue adjudicating?
Translated by Roman Wojtasz
The article was published in Polish at OKO.press, February 15, 2022.