The democratic opposition will form a new government in over a week. Then, the process of tidying up the justice system after 8 years of rule by Minister of Justice Zbigniew Ziobro and PiS will start.

The changes have to be quick because the courts are in a state of collapse. They are not working. They are staffed with nominees of the authorities and Ziobro’s people. The case of the prosecution service is similar. PiS’s concreting of the justice system will continue until the last day of its term in office.

The so-called the rule of law five-pack, the intention of which is to help quickly fix the justice system, is ready. These are bills fixing the Constitutional Tribunal, the National Council of the Judiciary, the Supreme Court, the ordinary courts and the prosecution service. Judges of the Supreme Court, judges from the association of judges, Iustitia, prosecutors from Lex Super Omnia and experts under the auspices of the Batory Foundation prepared them before the elections.

The politicians from the democratic parties essentially support the changes. They agree that tidying up after Ziobro must be quick. They also support holding those who broke the law accountable. A week ago, judges from Iustitia and the board of the association of judges, Themis, appealed to the politicians to quickly start work on the bills that have already been prepared.

The debate on how to fix the courts and ultimately organize them has been ongoing since the elections. Ideas have arisen on how to liquidate the neo-NCJ, how to dismiss stand-ins from the Constitutional Tribunal, how to fix the Supreme Court and vet neo-judges. OKO.press and the Osiatyński Archive are taking part in this debate.

We have already published interviews with Judges Igor Tuleya and Waldemar Żurek, Professor Krystian Markiewicz, the president of the association of judges, Iustitia, Attorney Michał Wawrykiewicz from the Free Courts, Professor Marek Safjan, judge of the Court of Justice of the EU, Professor Adam Strzembosz, former First President of the Supreme Court, Professor Ewa Łętowska, retired judge of the Constitutional Tribunal and former Ombudsman, Senator Dr Hab. Adam Bodnar, a former ombudsman, Professor Andrzej Zoll, a former president of the Constitutional Tribunal and ombudsman, Professor Wojciech Sadurski, a constitutionalist and philosopher of law, and Bogdan Zdrojewski, an MP from the Civic Coalition, who was a member of the neo-NCJ representing the Senate in the previous term of office.

We have also published articles by Magdalena Krzyżanowska-Mierzewska, former lawyer from the European Court of Human Rights and a Batory Foundation expert, Dr Marcin Szwed from the Helsinki Foundation for Human Rights, Krzysztof Izdebski, a Batory Foundation expert, Dr Witold Zontek from the Faculty of Criminal Law of the Jagiellonian University, Dr Barbara Grabowska- Moroz from the Institute of Democracy of the Central European University, Małgorzata Szuleka, Attorney-at-Law, member of the management board of the Helsinki Foundation for Human Rights, Dr Paweł Filipek and Dr hab. Maciej Taborowski from the Institute of Law Studies of the Polish Academy of Sciences, Dr Michał Ziółkowski, a constitutionalist from the Koźmiński University and Professor Maciej Bernatt from the University of Warsaw, director of the Centre for Antitrust and Regulatory Studies and head of the European Economic Law Department at the Faculty of Management of the University of Warsaw.

Now, we are enabling Professor Marcin Matczak from the University of Warsaw (in the photo at the top) to voice his opinion. He specializes in the philosophy and theory of the law, as well as constitutional law. He is a legal counsel and a member of the team of legal experts of the Batory Foundation.

Professor Matczak has been a fierce critic of PiS’s attack on the rule of law in recent years. He was not afraid of expressing his highly critical opinions about the changes in the courts. He was even threatened with disciplinary action, which Minister of Justice Zbigniew Ziobro was demanding of the bar association of legal counsels. He wanted to prosecute him for his strong comments on Twitter, in which Matczak was defending Professor Wojciech Sadurski, who was being attacked. Professor Matczak has become an authority in recent years.

Interview with Professor Marcin Matczak

Start with the prosecution service

Mariusz Jałoszewski: How would you go about starting to fix the justice system after 8 years of PiS rule?

Professor Marcin Matczak: From the prosecution service. Because the most important thing is to show determination and strike at the loyalty of the PiS environment. The prosecution service does not have the same constitutional protection as the Constitutional Tribunal or the Supreme Court. The political authorities have more room to manoeuvre in her case, despite the changes introduced by PiS to the Act on the Prosecution Service. There will be no bad precedents here.

By these precedents I mean arbitrary interference by the political authorities in areas of the constitutional space which gives independence, for example, to the judiciary, the Supreme Audit Office or the National Bank of Poland.

The prosecution service is important because we suspect a whole mass of breaches of the law in various areas and by various entities. I suspect that a lot of bad things have happened in the Constitutional Tribunal. The e-mails from the mailbox of former minister Michał Dworczyk convince me of this. These e-mails refer to visits by politicians to the Constitutional Tribunal and about meetings between the president of the Constitutional Tribunal and politicians.

I would like a prosecutor to look into this on behalf of the Poles. There is a strong suspicion here of an abuse of authority. I am simultaneously concerned there may be an alliance of people there who may want to cover for each other. And nothing breaks such an alliance better than reliable prosecution proceedings. So the first changes should be made in the prosecution service.

When the minister of justice and prosecutor general is replaced, he will gain an influence on the prosecution service, which is, after all, managed hierarchically and is subject to official orders. Of course, there is a problem with the National Prosecutor [he received more powers than the Prosecutor General at the end of the PiS reign – ed.], but there are also analyses that this can be stopped.

I would like people like Prosecutor Ewa Wrzosek to appear in the National Prosecution Service instead of Ziobro’s loyal prosecutors who protected PiS. So that they can conduct proceedings without pressure, which will restore the normal functioning of the prosecution service. Proceedings targeted at politicians should be conducted by tough people who have a brave spirit.

I consider it a good idea to separate the positions of minister of justice and prosecutor general. We have to do everything to keep the prosecution service as far away from politics as possible. But this cannot be done at once.

The key issue now is to hold people accountable so that prosecutors can finish previously discontinued investigations.

The second move is the public media. The whole of the process of holding PiS accountable should be transparent. Citizens, especially the PiS voters, should see that this is not happening in the privacy of their offices. They should see very clearly that this is not revenge. It is important to put order to the public media because it is precisely these media that are supposed to provide information about accountability and the proceedings of the prosecution service.

They are supposed to provide information on what charges are being pressed and show the evidence. So that people know what evil we were dealing with. Therefore, the current TVP propaganda, which presents that nothing has happened over the last 8 years, has to be put to an end as soon as possible.

The public sense of justice is being realized when the process of accountability is transparent.

Dismiss the stand-ins

But isn’t it possible to quickly fix other institutions staffed with and controlled by the PiS authorities? We have numerous rulings of the Supreme Court, the Supreme Administrative Court, the CJEU and the ECtHR that the current NCJ is illegal. That the two chambers of the Supreme Court established by PiS are illegal. That nominations of neo-judges are defective. It is enough to implement these rulings.

But it is more complicated in the Supreme Court, the Constitutional Tribunal and the National Council of the Judiciary because they are protected by the principle of independence. And there, quick and emotional action may have long-term repercussions on our country. There are, for example, ideas to reset the Constitutional Tribunal. Dismiss all the judges because the whole of the Constitutional Tribunal is ‘infected’. I consider this a tragic idea.

You can’t fight the plague with cholera. You can’t break the law even more.

Three stand-ins can be recalled from the Constitutional Tribunal. An application can be filed to initiate disciplinary proceedings, e.g. against Krystyna Pawłowicz for her public appearances and words that are unworthy of a judge. For insulting various people, such as Tomasz Trela, MP [the MP accused her of not submitting an asset declaration, for which she attacked him with the words ‘wandering beggar, ‘5th Russian column’ – ed.]. For clearly demonstrating political affiliation. And also for activities related to adjudicating in benches with stand-ins.

In the situation where there is a ruling of the ECtHR in the case of Xero Flor [in 2021, the ECtHR held that benches with stand-ins adjudicating in the Constitutional Tribunal are not legal courts – ed.], which is binding, those who adjudicated with stand-ins should be subject to disciplinary proceedings.

Everyone in the Constitutional Tribunal adjudicated with stand-ins. Therefore, such disciplinary proceedings should be conducted with respect to them all and a check should be conducted as to whether they filed motions to be disqualified or whether they filed dissenting opinions to the decisions that were issued. Because rulings issued with the participation of stand-ins are not rulings.

That’s why it has to be done.

What should be done with stand-ins? Almost everyone agrees that they can be dismissed from the Constitutional Tribunal by a resolution of the Sejm. Because they were illegally elected by PiS in the Sejm, to positions already filled during the PO–PSL term of office.

Stand-ins can also be dismissed by a resolution of the Sejm. In a study prepared at the Batory Foundation entitled ‘How to restore the rule of law’, we point out that the basis of the Sejm’s resolution on stand-ins is Article 190, para. 4 of the Constitution. It stipulates that proceedings may be resumed in an appropriate procedure in order to enforce rulings of the Constitutional Tribunal.

This provision is normally used to resume court proceedings after a ruling of the Constitutional Tribunal. But judges of the Constitutional Tribunal are appointed by resolutions of the Sejm, so this is the appropriate procedure for that. The Sejm may pass such a resolution in connection with the Constitutional Tribunal’s ruling of December 2015, in which it was held that the election of three judges to the Constitutional Tribunal is legal [the judges were elected during the PO–PSL rule, although the president did not swear them in, whereas their places were then taken by stand-ins elected by PiS – ed.].

That is why stand-ins can be removed legally. According to the law, the political authorities may also interfere with the judgments of the Constitutional Tribunal, the Supreme Court and the National Council of the Judiciary, but only if they are based on a ruling of a judicial authority.

Do we dismiss the stand-ins and replace them with the three previously elected judges of the Constitutional Tribunal who were blocked by the president and PiS?

They should be allowed to take up this function, although I don’t know whether they will want to do so. They can also retire and then three positions in the Constitutional Tribunal will become vacant. Meanwhile, the president should adhere to the Sejm’s decision. He said earlier that he could not swear these three in because these places were already occupied. But it was he himself who helped the occupation of these places by appointing the stand-ins. However, after an appropriate resolution is passed by the Sejm, he should swear these judges in, because then these seats will be vacant.

Julia Przyłębska’s tribunal is illegal

In an interview with OKO.press, a former president of the Constitutional Tribunal, Professor Andrzej Zoll, and constitutionalist Professor Wojciech Sadurski said that the whole of the Constitutional Tribunal could actually be considered illegal. Because there were numerous irregularities in its operation. Julia Przyłębska was illegally elected president of the Constitutional Tribunal, and she is still in that position, despite her term of office having ended. There are opinions that former PiS MPs Krystyna Pawłowicz and Stanisław Piotrowicz, who was a prosecutor during the period of martial law, were also elected to the Constitutional Tribunal in breach of the law. Because they were over 65 years old on the date of their election, while the regulations passed by PiS state that judges retire at that age. Zoll and Sadurski say that the whole of the Constitutional Tribunal has been infected with irregularities.

I believe that, in order to have stability of the law, politicians must not be able to decide on these issues on their own. There is no ruling about Przyłębska’s election to the position of president of the Constitutional Tribunal or the election of Pawłowicz and Piotrowicz to the Constitutional Tribunal. There is also no ruling stating whether Przyłębska is still the Tribunal’s president. A judicial route must be found to establish this before a national or supranational court. This was achieved in the case of the National Council of the Judiciary and the stand-ins. That’s how it’s done. It’s not a politician but a court who should decide on these matters.

But what court in Poland is to assess the legality of individual people in the Constitutional Tribunal? The Supreme Court, in which more than half of the judges are equally defective neo-judges, or the ordinary courts?

I have not conducted a detailed analysis of the type of proceedings that these may be, but there are several routes, including the international route. Perhaps this matter will resolve itself if the prosecution service conducts proceedings and if disciplinary proceedings are conducted.

MP Trela’s attorneys filed a motion to lift Pawłowicz’s immunity at the beginning of 2023 [the MP wanted to sue her for defamation – ed.]. The Constitutional Tribunal rejected this with a majority of 7 votes to 6. So, even before the elections, her status was hanging in the balance. I hope that some instinct of survival will prevail there.

I think the initiation of criminal proceedings in the case of what happened in the Constitutional Tribunal will destroy the solidarity of the PiS nominees. We already saw the first symptoms of panic in the Constitutional Tribunal the moment that the e-mails from Dworczyk’s mailbox appeared. Mariusz Muszyński then revealed his notes, which he apparently takes all the time [Muszyński is a stand-in, he notes down everything that happened in Przyłębska’s Constitutional Tribunal – ed.]. This is what happens to corrupt institutions, which deteriorate even more when threatened.

How should the problem of rulings issued with the participation of stand-ins be resolved? Is it enough to delete them from the Journal of Laws?

Acknoweldge that they are non-existent by law. But not publishing them in the Journal of Laws is also permissible. I would like to think about that. It’s not a good idea to publish them with a note that the ruling was passed with the participation of stand-ins and does not incite any legal effects. Because publication itself enables the ruling to incite legal effects.

This position is based on the ECtHR judgment in Xero Flor. It gives grounds for such action. There will no longer be a situation like we had eight years ago, when the basis for refusing publication was a politician’s whim. As in the case of Prime Minister Beata Szydło, who refused to publish legal rulings of the Constitutional Tribunal.

Now, the situation is different. The new prime minister will not act arbitrarily because by refusing publication, he will be relying on court judgments. The point is not to set a bad precedent on which someone could rely in the future. If a politician wants to interfere in the legal situation of the third authority, he has to present a basis for his action in the judgments of that third authority.

Apply European law

CJEU Judge Professor Marek Safjan says all ECtHR and CJEU rulings need to be implemented. It is said that, if the president vetoes new statutes, the provisions passed by PiS which are inconsistent with the Constitution and European law may be ignored. And European law may be applied directly, as, according to the Constitution, it is above statutes in the hierarchy of laws. The CJEU allows this in its rulings.

We should recall the hierarchy of acts of law. According to our Constitution, an international agreement ratified by Poland [e.g. EU Treaties and the European Convention on Human Rights – ed.] is above a statute. CJEU rulings arise from this agreement. So there is no problem for judges and other authorities to rely directly on it.

A problem arises when we go lower, to the level of entities with less legal knowledge, such as the police. This is where the risk of wrongly applying regulations starts. However, there are no obstacles to courts and the prosecution service directly applying European law. We should return to being an important, responsible EU Member State and observe the agreements that are binding on us. And these require the application of rulings of the ECtHR and CJEU.

It arises from these judgments that the neo-NCJ is politicized and defective. Meanwhile, the Supreme Court ruled that its membership was inconsistent with the Constitution, which did not give the PiS MPs the right to elect 15 judge-members to the Council. How should these rulings now be implemented to liquidate the neo-NCJ?

Proceedings by the Sejm are appropriate. There is a basis for the political authority to regulate the status of these 15 members through the Sejm by way of resolutions of the Sejm, as in the case of the stand-ins. The political authorities pass a resolution on the neo-NCJ, but they do not do it arbitrarily because they are implementing the rulings of the third authority.

How should new judges be elected to the NCJ? There is no chance of a new Act because the president will veto it.

We have a problem here. They can be dismissed by a resolution of the Sejm, while new ones must be appointed on the basis of a statute. And the only statute is the current, defective one. So it needs to be amended. But an idea has arisen, which, in my opinion, in line with the spirit of the law, for the Sejm to reappoint the judges.

The Sejm could declare: ‘We have a defective Act. The defect is based on the previous appointment of the judges with the will of the judges being ignored. But we cannot change the Act because the president will veto it. So we are using this tool. However, we are giving the initiative regarding the selection of the candidates to the judges.’

The judges would choose candidates to the National Council of the Judiciary through the Assembly of Judges, which would later present them to the Sejm. Meanwhile, the Sejm will appoint them in accordance with the spirit of the Constitution in order to provide real representation of the judges in the NCJ. This is not the best solution, but this is our climate – at least it implements the spirit of the law.

What should be done with the neo-judges?

There are two options. Vetting or withdrawal of all nominations and announcement of new competitive recruitments.

An important constitutional value is the stability of the law. In accordance with the values that are contained, for instance, in Article 190, para. 3 of the Constitution, it is possible to agree to the temporary existence of an unconstitutional solution if its immediate removal were to cause a huge amount of instability. This protects against chaos.

Of course, it can be said that: ‘the whole system has been infected and we are throwing all neo-judges out onto the street.’ Because we should be biblically constitutional on the principle: ‘yes, yes, no, no.’ But the Constitution itself is not like that, as is evidenced by its Article 190, para. 3, which provides for the ability to temporarily leave unconstitutional solutions in legal transactions to ensure the stability of the law.

However, the idea of vetting is better because it lasts some time, so it is not a sudden change. We start the proceedings, set a date and everyone nominated by the neo-NCJ is vetted.

There will not be any chaos. Iustitia, whose bill assumes the withdrawal of nominations, also proposes that neo-judges complete the cases they have started. Meanwhile, former First President of the Supreme Court Professor Adam Strzembosz told OKO.press that vacancies in higher instance courts can be filled with secondments for judges who behaved decently during the PiS era. They can also complete the cases of neo-judges, because the law allows them to even take over criminal trials that have already started. Simultaneously, many neo-judges would return to their previously occupied positions, mainly in lower instance courts.

Any act that ensures stability should be considered. I am treating this as a protective measure to prevent the system from collapsing. And that may be the right thing to do.

There is also an ethical and moral aspect. Many judges did not enter recruitments before the neo-NCJ because they did not want to appear before an illegal body. This made these recruitments uncompetitive. It was often the case that there was one candidate for one position. Additionally, the neo-NCJ often gave promotions to its own judges, while independent judges, such as those who signed an appeal to the OSCE or to implement CJEU rulings, were removed. Former member of the neo-NCJ and Civic Coalition MP, Bogdan Zdrojewski, told OKO.press that it was mainly opportunists who ran for appointment to the higher instance courts. The retention of the nominations for neo-judges would therefore be damaging to those judges who deliberately did not run for office and defended the rule of law.

Vetting is a concept that has multiple meanings. Earlier recruitments can be vetted, or this can also involve repeating these recruitments, opening them up to new candidates. I agree that there are a lot of decent judges who considered it undignified and wrong to take part in these recruitments. And the situation that they are treated worse is unfair.

If we had a solution repeating recruitments with the admission of new candidates, but simultaneously retaining the stability of the courts, such a solution would implement the constitutional principle of social justice. A narrow review checking only those who won a non-competitive recruitment would be unfair.

We need vetting in the broad sense so that no judge feels cheated.

What should be done with the Supreme Court?

More than half the judges are neo-judges of the Supreme Court. There are also two illegal chambers established by PiS. These are the Chamber of Extraordinary Review and Public Affairs, the legality of which was challenged by the ECtHR. There is also the Professional Liability Chamber, the legality of which was also initially challenged by the ECtHR. It is also challenged by the EC and PiS itself, which wanted to transfer disciplinary cases of judges from there to the Supreme Administrative Court. Which, after all, is in conflict with the Constitution.

The level of chaos in the Supreme Court is huge. There is probably no better idea than to repeat the recruitments to the Supreme Court before the NCJ. Because this is the source of the problems. Acts that implement the rulings of the European courts and change the structure of the Supreme Court could be considered. But I would like to re-emphasize: the political authority – the Sejm, the Senate, the government, the president – cannot act on its own, but purely on the basis of a letter of safe conduct received from the judiciary.

Of course, the president will be an obstacle to the changes in the Supreme Court. Perhaps, however, there will be some room for action to publicly place him in the role of the lone defender of the illegality of the Supreme Court. In the role of someone who, despite the change of government, is still delaying the reforms that are blocking the money for the NRRP. Such public pressure often works.

The Constitutional Tribunal will also be an obstruction. There will be many areas of friction, which cannot be avoided. However, I believe a new statute must be enacted, even if the president vetoes it. Because it will open up the space for a public discussion and public assessment of this situation. Politically, it will be more difficult for the president now than it was previously, especially if the changes can be related to the receipt of the money for the NRRP. While public television will no longer be praising the president for everything.

And as for the Constitutional Tribunal, the situation, as I have already said, could change when prosecution proceedings regarding the Tribunal start. This will weaken their misunderstood solidarity under the slogan of ‘you scratch my back and I’ll scratch yours’ as well as weakening their legitimacy.

The process of fixing the rule of law will not be straightforward, but has to go on. There’s no other way. However, it has to be legal because the plague cannot be treated with cholera. Marcus Aurelius said: ‘The best revenge is to be unlike your enemy.’

Translated by Roman Wojtasz