Mission Possible, or in other words how to restore the rule of law
Our proposal justly differentiates the situations of judges who knowingly chose promotion, while other boycotted defective recruitments - argue lawyers from the Free Courts initiative Michał Wawrykiewicz, Paulina Kieszkowska-Knapik, Sylwia Gregorczyk-Abram, Maria Ejchart-Dubois
The Polish government has lost a dozen or so cases over changes in the justice system in recent years before the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). Both courts have found every aspect of Minister Zbigniew Ziobro’s reforms to be in breach of European law, which is applicable in Poland.
Some of the breaches are already costing us hundreds of millions of zlotys in fines as well as the blocking of billions of euros from the Reconstruction Fund. In the coming weeks, we shall almost certainly face the initiation of a procedure to withhold the payment of regular EU funds under the Rule of Law Conditionality Regulation.
In the judgment in Dolińska-Ficek and Ozimek v Poland, the ECtHR even stated: ‘the violation of the applicants’ rights originated in the amendments to Polish legislation which deprived the Polish judiciary of the right to elect judicial members of the NCJ and enabled the executive and the legislature to interfere directly or indirectly in the judicial appointment procedure, thus systematically compromising the legitimacy of a court composed of the judges so appointed. In this situation and in the interests of the rule of law and the principles of the separation of powers and the independence of the judiciary, a rapid remedial action on the part of the Polish State is required.’
Strasbourg for everyone
After such a ruling, any citizen whose case was judged by a so-called ‘neo-judge’ can effectively argue at the ECtHR that his case was judged by a ‘non-judge’ and a ‘non-court’ (no guarantee of independence and impartiality) and obtain compensation in connection with the breach of Article 6 of the European Convention on Human Rights. The responsible authority should execute this forthwith – so as to protect every citizen from the consequences of putting their affairs in the hands of defectively appointed judges.
The return to the rule of law must be based on the systematic (and not selective) implementation by Poland of the judgments of the European courts. This assumption is the basis of the bill correcting the judiciary prepared by the Association of Polish Judges, ‘Iustitia’, which is fully supported by a broad front of civic and legal organisations involved in the battle over the rule of law and democratic opposition parties that have joined the ‘Agreement for the Rule of Law’, which decided to submit it to the parliament. Now, the comprehensive and well-thought-out bill is ready for legislative work and a debate on the specifics.
The concept prepared by the ‘Agreement for the Rule of Law’ and ‘Iustitia’ Association of Judges contained in the Act sanitising the judiciary is based on:
- the need to elect a correct National Council for Judiciary (which democratically represents the judicial community, supported by a social council);
- the statutory reflection of the judgments of the CJEU and ECtHR stating that neo-NCJ judges were not nominated correctly because of the defect in the neo-NCJ and not their personal defects;
- the protection of the continuity and certainty of legal transactions by introducing a statutory delegation to allow cases to continue in the transition period without removing neo-judges;
- the acknowledgement that assessors were correctly appointed as judges because the role of the neo-NCJ in the case of their nomination is different (negligible in comparison with other nomination processes) and they had nowhere to ‘escape to’ in the system;
- the immediate announcement of new recruitments by the newly elected NCJ and allowing neo-judges to also participate;
- leaving all judgments passed by neo-judges in force, with the right of the parties to resume proceedings that have ended (on request) using ordinary procedural instruments;
- the introduction of a new, civilised disciplinary procedure for judges before independent courts, with the involvement of independent disciplinary commissioners, ensuring that the victims of judicial misconduct retain their rights;
- the lack of consent to the permanent upholding of defective appointments of neo-judges, ensuring that judgments passed by them are protected so that Poland complies with the judgments of the European courts.
Voices misrepresenting the bill appeared in the public debate after it was presented by the ‘Agreement for the Rule of Law’. Consciously or not, critics see legal problems where they do not exist. However, they either do not see the provisions of the bill or they distort its meaning.
The leading idea is to immediately protect the citizens against invalid proceedings, without breaching the rights of the neo-judges. Contrary to the suggestions of the politicians, the bill is completely free of emotion, revenge or vendetta. On the contrary. It is the only possible, systemic method of solving a legally horrifically difficult situation, done in a hygienic and surgical manner, which is equal for everyone, as silently as possible for citizens and other parties that have cases in courts.
The bill envisages the repetition of nomination recruitments before the newly elected and legal National Council of the Judiciary. Therefore, this is not about collective liability, but about the need – for the good of the defendants and the neo-judges themselves (!) – to correct their right to adjudicate. The office of judge is not a private entitlement of a given judge (such as a pension), but a constitutional power to decide on the rights of other citizens issuing binding judgments on behalf of the Republic of Poland, who does not have any allegation of being a ‘non-judge’.
Therefore, the reform implementing the European judgments cannot focus on individual features of one neo-judge or another, assessing the degree of his or her politicisation, dependence and therefore lack of impartiality. Possible offences of this kind should be subject to a genuine, transparent disciplinary procedure, which the bill also regulates.
Disciplinary cases from scratch
The starting point for a reform that restores the rule of law must be the removal of the systemic defect that is the politically dependent NCJ and the appointments it has made. The formal defect (the lack of nomination of a legally functioning and constitutionally appointed National Council of the Judiciary) cannot be eliminated in any other way. It cannot be argued that anyone appointed by the neo-NCJ gives a guarantee of an independent trial, because this is a systemic, formal defect and not an assessment of the individual features of a given person.
Neither is the allegation true that newly appointed neo-judges are to be allegedly incorrectly treated, because their only ‘fault’ was the time that they entered the profession. It is quite the contrary.
The bill fairly distinguishes the situation of these neo-judges from those who deliberately chose to be promoted at a time when other judges were boycotting defective recruitments.
According to the bill, new judges are practically automatically ‘sanitised’ and the odium of a ‘neo-judge’ ceases to hang over them. By offering them a way out of the deadlock in which they have found themselves at the beginning of their career, the bill is very beneficial for them and resolves the situation of the vast majority of people appointed with the involvement of the neo-NCJ to district courts, namely the most numerous courts and simultaneously those closest to the citizens.
However, those who decided to take advantage of the situation in the times of the ‘good change’ and be promoted, being fully aware of the systemic destruction of the system, need to take part in recruitments again in order to sanitise the defect in their promotion. They will face a fair recruitment, in which those judges, who have not taken part so far not wishing to legitimise the lawlessness, will also take part. They will all have an equal opportunity before a true, independent and constitutional NCJ.
So no harm will come to the neo-judges. They will return to their previous positions. They will not refund any of their salaries. All they have to do is enter the recruitment before a true and independent NCJ. To paraphrase a certain minister – if someone is good, they do not need to be concerned about the results of fair recruitments.
The assumption is that the citizens will not feel any negative consequences of the changes during the election of a true NCJ and its recruitments, because the bill assumes the continuation of pending cases and a ‘bridging’ system of delegating judges and the acceptance of the status of appointments of assessors. Therefore, there will not be a moment where there is a ‘hole’ in the system or courts are deprived of thousands of judicial posts. Nothing of the kind will take place.
The change is supposed to be unnoticeable from the point of view of the defendants and is intended to correct the process of ‘poisoning’ cases with incorrect judicial appointments as quickly as possible.
The situation with neo-judges in the Supreme Court is slightly different, because their appointments not only took place with the involvement of the neo-NCJ, but they are also subject to many other breaches of the law, including the constitutional, systemic defect of the recruitments that were withheld by the Supreme Administrative Court, which was ignored by the neo-NCJ, President Andrzej Duda and the interested parties themselves. They have to unconditionally and immediately leave the Supreme Court. Recruitments to fill the positions in the Supreme Court will have to take place before the legal NCJ, while a correctly deliberating General Assembly of Supreme Court Judges (composed exclusively of legal judges) has to specify to the president who the candidates are for the office of first president of the Supreme Court. The political chambers, namely the Disciplinary Chamber and the Chamber of Extraordinary Control and Public Affairs (the lack of their status as independent, impartial courts has been confirmed by the European courts and the Polish courts), will be liquidated.
Finally, it is worth emphasising that nobody has so far prepared any comprehensive concept of remedying the Polish judiciary as an alternative to that presented by the ‘Agreement for the Rule of Law’ and ‘Iustitia’. Nobody has submitted any bill to the Sejm. Only isolated voices of criticism can be heard.
One of them proposes that the degree of ‘politicisation’ of a given neo-judge should be examined in individual court proceedings on the basis of an assessment of his or her judgments. Such an examination would be conducted by a different panel from the same court, while the neo-judges would remain in the system without a systemic verification (including the neo-judges from the Supreme Court).
The President’s idea is useless
Such a solution is not only the failure to implement the judgments of the CJEU and the ECtHR, but also generates unequal treatment of citizens (different benches will rule differently as to a given judge), thousands of disputes within cases lasting decades, and, in the end, a predictable judgment of the ECtHR, because the Strasbourg standard has already developed – a neo-judge appointed with the involvement of the neo-NCJ does not give a guarantee of an impartial and independent trial.
Such an operation would be an unreasonable obstacle and would drag out thousands of cases to the detriment of the citizens. Not to mention that it would also send a message to future generations of lawyers that breaking the rules pays off and will be rewarded. This would lead to a witch-hunt, with which the ‘Agreement for the Rule of Law’ and ‘Iustitia’ do not agree, precisely because there can be no place for any court vendetta in a country governed by the rule of law.
We wrote this article and the theses and explanations contained in it on our behalf and on behalf of the civic organisations that are a part of the ‘Agreement for the Rule of Law’.
Sylwia Gregorczyk-Abram, Maria Ejchart-Dubois, Paulina Kieszkowska-Knapik and Michał Wawrykiewicz are members of the ‘Free Courts’ Initiative.