Jarosław Kaczyński announced the takeover of the courts on Saturday 26 August 2023 at an election rally in Sokołów Podlaski. He spoke to PiS supporters there for almost half an hour. He mainly compared the PiS governments to those of the PO-PiS coalition. And promised that, if PiS wins the next elections, Poland will be as rich as France and Great Britain. And ‘God willing’, in some years to come, we will catch up with the richest. Namely the Netherlands, Denmark and Sweden.

Kaczyński spoke of the differences between his party and the Civic Platform (PO). That, according to him, they differ in their approaches to prosperity, security, equality and even democracy and the rule of law. The crowd chanted: ‘We will win.’ After which Kaczyński revealed his view of democracy and the rule of law, which PiS breaches on an everyday basis.

He attacked the courts. He said: ‘Well exactly Ladies and Gentlemen, if we win, all these things I was talking about, including our rule of law, which is very often trampled today. By whom? By the courts. By those courts which are being defended so strongly.’ The PiS Chairman continued: ‘It is they that very frequently make a mockery of obvious facts. They mock precisely the rule of law.’ And announced:

‘We will change this. This time, no one will stop us. We will change this.’ The crowd responded with applause.

Courts – the last ‘barricade’ to be overcome

After the elections, if PiS wins, the announcement of the final crackdown on the free courts is a real threat. And shows that PiS wants to take full control of the judiciary by violating the Constitution and European law. And it wants to remove all independent judges, replacing them with ‘their own’ judges.

Because the courts are the last ‘barricade’ to be overcome for Kaczyński, while the ‘reform’ of the courts means a replacement of judges. The chairman has been saying this previously in interviews. Kaczyński speaks of the courts as the last barricade to be overcome, because today they are one of the last institutions in the state over which the party does not yet have full control.

If PiS manages with the courts, it will also be easier for it to pacify the independent media, which can still seek protection in the courts today in their clash with the authorities. Meanwhile, the pacification of the courts and the media will give PiS full power in the country and will eliminate all control over it.

However, the announcement of a crackdown on the courts will mean a fierce clash with the European Union, for which an independent judiciary is one of the main pillars of the Union and democracy. Just like free media. The EU institutions will have to react to this, and this could mean a complete blockade of grants to Poland. Because the European Commission cannot allow one of its Member States to openly trample on the Union’s fundamental values. And this, in turn, could encourage PiS to conduct a Polexit.

How the government has been taking over the courts in stages and what it still lacks

Kaczyński’s party has been dreaming of taking over the courts for many years. It already tried to do this during its first rule in 2005–2007. But it did not succeed then. Furthermore, the plans then were not as radical as they are now.

And PiS learned its lessons from that time. And after winning the 2015 elections, it immediately made its move for the courts with Minister of Justice Zbigniew Ziobro. It started by taking control of the Constitutional Tribunal. The Act on the Constitutional Tribunal was first amended, blocking the swearing in of the three judges who were legally elected by PO. Then, they started to staff the Constitutional Tribunal with their own nominees.

The result? Today, the Constitutional Tribunal means nothing as a constitutional court. Its legality is also being called into question, because there are so-called stand-in judges in it. These are people selected in place of the three judges elected under the PO rule, whom the president did not allow to rule. The legality of the Constitutional Tribunal is undermined by the ECtHR and Polish courts, including the Supreme Court. The Constitutional Tribunal is not respected at all; it is referred to as Julia Przyłębska’s Tribunal – she is the president and a close friend of Jarosław Kaczyński.

After the Constitutional Tribunal, the authority took over the prosecutor’s office, to which the PO government had given full independence. However, at the beginning of 2016, PiS passed a new Act on the prosecutor’s office. Its independence was abolished. And it was made fully subordinated to Zbigniew Ziobro, who is both the minister of justice and the prosecutor general. The structure of the prosecutor’s office was also changed, which allowed purges to be made in the staffing. Many experienced prosecutors were then demoted.

The result? Today, it is mainly the opposition and participants of anti-government protests who are prosecuted. While the people in power can feel impunity. Meanwhile, independent prosecutors are being prosecuted by disciplinary commissioners.

This is not enough for the authorities. Even if the opposition wins the elections, Ziobro will still have control over the prosecutor’s office, because his people have been concreted in it.

Then came the time for the courts. In 2017, PiS wanted to remove older judges of the Supreme Court in one fell swoop, conduct a purge in the leadership positions in the ordinary courts and take over the National Council of the Judiciary, which decides on judicial appointments. This was then blocked by the citizens in the streets. The president intervened. But this was purely a tactical ploy to silence the protests.

And the authorities continued to do their own thing. First, Ziobro conducted a massive purge of court presidents and vice presidents. He filled them with his own nominees. And in 2018, PiS dissolved the National Council for Judiciary (neo-NCJ) during its term of office in breach of the Constitution and appointed a neo-NCJ almost entirely staffed with judges cooperating with Ziobro’s ministry.

The result? Ziobro’s court presidents started to pacify independent judges. This is aided by Ziobro’s disciplinary commissioners, who punish judges with disciplinary action en masse. In turn, the neo-NCJ is appointing new neo-judges to the courts. There are already 30-40% of them in the courts.

Neo-judges are taking control of the courts and divisions of courts that are strategic to the authorities, such as the criminal division of the Court of Appeal in Warsaw, which gives the services permission for wiretapping. Neo-judges are also already ruling almost the whole of the Supreme Court. They have their own president and presidents of the Chambers. The old judges of the Supreme Court now only control the Labour and Social Insurance Chamber. Furthermore, half of the judges of the Supreme Court are already neo-judges.

But they are not legal; nor is the neo-NCJ, which nominated them. Their status has been undermined in numerous rulings by the ECtHR, the CJEU, the Supreme Court, and the Supreme Administrative Court. Because the neo-NCJ is politicised and close to the authorities. Furthermore, its membership is in conflict with the Constitution.

What do all these changes in the courts mean for the citizens?

Citizens do not have the guaranteed right to a trial before an independent court. They can lose against the authorities and the state.

How the authorities want to finish off the courts

Although Kaczyński’s party has been taking control of the courts in stages for the past eight years, it is still promoting their alleged reform. Why? Because despite these changes, the authorities do not have control over independent judges, who, despite repression, have not allowed themselves to be broken. They are the thorns in Kaczyński’s and Ziobro’s sides.

Not only did the judges not allow themselves to be intimidated, but they are also defending their independence. And they are doing this effectively. Because the subject of the rule of law is one of the main bones of contention in the state and the reason for the PiS government’s conflict with the EU. The EC has blocked the payment of billions of euros for the National Reconstruction Program to Poland because of what the authorities are doing with the courts.

It may seem as if PiS has already written off those billions. There were attempts to reach an agreement with the EC as recently as a year ago. The authorities made a few conciliatory moves, repressions quieted down. But, Ziobro’s people have been starting up numerous disciplinary actions against judges once again in recent months. For applying European law, which is a blatant slap in the face for the EU.

And now the PiS chairman has returned to his old rhetoric and is announcing that he will put order to the courts after the elections and no one will stop PiS.

It is known what the crackdown on the courts will look like, as Minister Ziobro already has bills ready, which are in the so-called freezer. Ziobro is proposing the abolition of the current ordinary courts, namely the district, regional and appellate courts. In their place, there are to be two levels of courts – new circuit and regional courts. The latter would take over cassations from the Supreme Court and, in principle, end trials.

The move to appoint new courts will enable purges to be conducted. It will be possible to send all independent judges into early retirement, or there will simply be no place for them in the new courts. And if there are still ‘unruly’ judges in the new courts, they will be silenced with repressions. Ziobro also wants to abolish the current Supreme Court. He is proposing a small, shell Supreme Court with about 30 new judges. Such a Supreme Court would only deal with putting order to judgments.

Such a move will also mean a replacement of judges. It will enable the removal of the current legal judges, but also neo-judges who have fallen foul of the authorities. We have been writing on an ongoing basis for several years about how the authorities are taking over the judiciary, how they are repressing judges and how they want to finish them off.

Translated by Roman Wojtasz