During a 7 October television appearance on Polsat News, Law and Justice chairman Jarosław Kaczyński said that the completion of justice system “reforms” was on the cards. The conversation touched on the PiS programme and the party’s plans following a predicted victory in the Sunday 13 October parliamentary elections.

Kaczyński was asked why the state remains inefficient, proof of which was said to be long queues in the courts and the health service.

“As for the courts, (…) there have been difficulties with implementing reforms, despite their being fully compliant with the Polish constitution,” Kaczyński replied. In his opinion, the problem lies with “difficulties of an international nature”.

He then announced the impending completion of the court system “reforms” after the elections.

“If we receive a mandate from society, we will return to the subject. We have a firm basis for doing so. Article 180, point 5, paragraph 5 of the Constitution gives us the full right to conduct such reforms. And we will invoke this article, we will get it done. Without a deep reform of the courts, a general renovation of the state, it’s very difficult, because this is something like the last barrier, the last level of decision-making in many matters, and not only those related to civil or criminal matters, but also administrative ones,” the head of PiS emphasized.

This declaration is key, because in it Jarosław Kaczyński confirms rumours swirling around the justice system for over a year.

Reorganization through liquidating the existing courts

The endgame is a large-scale reorganization of the common courts – district, region, and appellate – which will enable a full vetting and purge of the judicial cadre, today numbering around 10,000 judges.

On Polsat News, Kaczyński invoked Article 180 of the Polish Constitution. Paragraph 1 states “Judges shall not be removable”. But in Paragraph 5 we read that “Where there has been a reorganization of the court system or changes to the boundaries of court districts, a judge may be allocated to another court or retired with maintenance of his full remuneration”.

Article 180 of the Constitution of the Republic of Poland

 

Principle of judicial irremovability

 

1. Judges shall not be removable.

 

2. Recall of a judge from office, suspension from office, transfer to another bench or position against his will, may only occur by virtue of a court judgment and only in those instances prescribed in statute.

 

3. A judge may be retired as a result of illness or infirmity which prevents him discharging the duties of his office. The procedure for doing so, as well as for appealing against such decision, shall be specified by statute.

 

4. A statute shall establish an age limit beyond which a judge shall proceed to retirement.

 

5. Where there has been a reorganization of the court system or changes to the boundaries of court districts, a judge may be allocated to another court or retired with maintenance of his full remuneration.

 

[source: Official Sejm website at https://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm]

It is no secret that the Minister of Justice and Prosecutor General, Zbigniew Ziobro, is planning to take advantage of this opportunity. How? The Ministry of Justice is considering the option of abolishing the current system based on three levels of courts and creating a system comprised of two new courts.

New regional courts will replace the existing appellate and district courts, while new district courts will replace the existing regional courts. In addition, the status of all judges, regardless of their rank, will be realigned. There will be only common courts judges who can adjudicate in both of the new courts.

These plans for reorganization of the courts were leaked in March 2019 to the “Rzeczpospolita” Polish daily.

Interestingly, for the first time the chief of Law and Justice has mentioned administrative courts in the context of the reorganization, which may mean that “reform” plans will be extended to these courts as well.

So far, PiS has not attacked administrative courts and has not included them in plans for changes to the judiciary. Recently, however, the administrative courts, which were initially far removed from what the authorities were doing with the court system, have also begun to defend the Constitution and hand down rulings unfavourable to the ruling party.

The final battle for control of the courts

Reorganisation of the courts would open the door to a vetting of all judges in Poland, because the procedure would require them to be reappointed to the bench and to the new courts.

The experience of the public prosecutorial service gives us a clue as to what this vetting would look like. In order to sack experienced prosecutors, PiS eliminated the Office of the Prosecutor General and Regional Prosecutors’ Offices, i.e. the two highest levels in the prosecutorial service.

In their place, the National and Appellate Prosecutors’ Offices were established. This necessitated a new recruitment procedure. As a result, independent prosecutors were removed as well as those whom the current authorities do not trust. They have been downgraded, often to the lowest level in the prosecutor’s office, that of district prosecutor. The same can happen with judges.

What is all this for? By reorganising everything in a single stroke, the current government can take control of the courts and decide who will adjudicate. This is a means of ridding the courts of independent judges, who today defend the independence of the judiciary and openly criticise Zbigniew Ziobro.

After the reorganisation, independent judges can be given a choice: take early retirement or remain on the bench with further consequences. These consequences include demotion to the lowest court level, being relocated to a court on the other side of the country, or one far away from home, as well as disciplinary proceedings. It may also be the case that there will not be enough posts in the new courts and the unbowed judges will not be appointed to them at all.

Exiling people to work far away from home is already a practice engaged in by the current authorities in the prosecutorial service. Judges are harassed by mountains of disciplinary proceedings initiated by the chief disciplinary spokesman, appointed by Zbigniew Ziobro.

If Law and Justice succeeds with its plans for reorganization, the disciplinary proceedings will remain for the most rebellious judges who defend their independence to the end. At OKO.press, the former Minister of Justice, Zbigniew Ćwiąkalski, spoke about what the reorganisation will mean in practice (read in Polish at OKO.press).

Will the EU block changes to the courts?

But it doesn’t have to be this way. Everything depends on the response by the European Union and the EU Court of Justice, to which judges file motions for preliminary rulings. The EU possesses instruments for blocking the exchange of judges. It can exert political pressure on the Polish government, and can also invoke financial sanctions, such as by blocking disbursements of EU funds.

At present there is only talk, as no decision has yet been made to link funds with the criterion of adherence to the rule of law. The reaction by the EU to changes in the justice system is what Kaczyński referred to on Polsat News as “difficulties of an international nature”.

So far, the current authorities have taken over the courts in stages. First, they neutralized the Constitutional Tribunal, which had the power to block legislation advanced by PiS.

The next stage was the dissolution of the “old”, legitimate National Council of the Judiciary, which makes decisions about promotion of judges and used to be responsible for protecting the independence of the courts. PiS appointed a new Council, populated primarily by individuals ready to cooperate with the current ruling party. And it was after the appointment of this Council that previously frozen recruitment proceedings were restarted to fill vacancies in courts. Now, trusted judges are frequently promoted. Minister of Justice Zbigniew Ziobro also purged the chief justices of courts, appointing in their place people in his trust.

The attempt at taking over the courts was stymied when it reached the Supreme Court. Faced by mass protests, Law and Justice abandoned its exchange of “old” Supreme Court judges, but did appoint two new chambers. One of them, the Disciplinary Chamber, is a tool for helping remove rebellious judges, prosecutors, and lawyers from the legal profession.

In the run-up to the elections PiS sought to calm emotions surrounding the justice system. Yet the disciplinary spokesman continues his work, persecuting independent judges with disciplinary proceedings. The final stage in the takeover of the courts – what Jarosław Kaczyński called “the last barrier” – is a large-scale reorganization and vetting of judges.

This will give the ruling party almost total control over the state.

[translated by Matthew La Fontaine]