PiS Threatens to Take Over Courts, Liquidate Supreme Court, and Challenge CJEU
PiS is not hiding the fact that it wants to destroy the independent courts in Poland. It is admitting this in its election programme. It is promising the liquidation of the current courts and the establishment of new ones with ‘its own’ judges. Independent judges will be removed or retired
Conventions of the major parties and committees running in the elections were held on Saturday 9 September 2023. The Law and Justice Party (PiS) had its convention in Końskie, but little was said there about its plans for the courts. Which is a shame. Because it wants to finally deal with them, which will mean a total dispute with the EU, which could end with funds for Poland being blocked and the PolExit issue being raised.
However, PiS has revealed its plans for the courts in its election programme, which is on the party’s website. This is a 300-page document. The judiciary is addressed on pages 158–164. And it is clearly stated there that PiS is going for the courts.
PiS confirms there what Jarosław Kaczyński and Minister of Justice Zbigniew Ziobro have already been repeatedly announcing. The party wants to liquidate the current courts, including the Supreme Court, and appoint new courts in their place, with ‘its own judges’. This means that independent judges will be removed. This will give PiS full power over Poland. The only thing left to take over will be the free media. PiS is even hoping to ‘reform’ the CJEU and send neo-judges to it.
PiS is going for the courts and for a collision with the EU
The ruling party is already making no secret of the fact that it will finally take control of the courts if it wins the elections. After all, its leader, Jarosław Kaczyński, recently announced this once again. He said at a rally in Sokołów Podlaski: ‘This time no one will stop us. We will change this’. And he said earlier that the courts are the last barricade to be overcome.
The party’s programme devotes several paragraphs to this. But this is enough to know what PiS will do with the courts if it wins the elections. Because draft laws, which Minister of Justice Zbigniew Ziobro had prepared, have already been around for months. They have been waiting in the so-called freezer for the time being; because the government was holding negotiations with Brussels to unblock billions for the NRRP. It is now clear that PiS has already abandoned any plans to make concessions to the EU and is setting its sights on confrontation.
The programme is announcing the ‘reform’ of the Supreme Court: ‘It will become an elite court of law. It will focus on cases of special importance and extraordinary complaints when there are grossly unjust final court judgments.’ What does that mean? Minister Ziobro has a ready bill abolishing the current Supreme Court and establishing a small Supreme Court with 30 vetted judges who would only deal with legal issues and look after the uniformity of judgments (but only within the framework of the extraordinary complaint passed by PiS).
Such a ‘reform’ means the removal of all the current legal judges of the Supreme Court and the neo-judges of the Supreme Court and the reappointment – after vetting – of 30 of ‘their own’ judges. The current cassations and cassation complaints would go to the courts of appeal. But the authorities would only appoint 5 such courts for the whole of Poland.
The PiS programme also confirms the plan to liquidate the current ordinary courts. It states: ‘We will also consistently aim to reform the structure of the courts. Their structure will change and will become simple and transparent. This will shorten the route of citizens to court; they will be able to settle matters of importance to them closer to home.’
Minister Ziobro also has bills ready for that, which are waiting in the so-called freezer. This is the plan. The current courts of appeal, as well as the regional and district courts will be liquidated. New area and provincial/appeal courts will be established in their place. This reorganisation will open the door to the vetting of all judges in Poland. Because they will have to be reappointed to the new courts.
This means that there will be no place in the new courts for the independent judges who are fighting today for the rule of law. They will either be removed from them or sent on early retirement. And those who remain could end up working far away from home and they will continue to experience repression.
The reorganisation of the courts will give the authorities the control they desire, because they will be able to staff them with ‘their own’ judges, who they will not have to control.
If these changes are pushed through, this will mean war with the European Commission. Because independent courts are one of the values of the EU. And Brussels will have to react strongly to this.
What else PiS wants to do to the judiciary
Furthermore, in its programme, as if to sweeten the deal for the citizens, PiS is announcing:
- A reduction in the jurisdiction of the courts. Fewer cases are to be submitted to them; 15 million cases are currently being filed with them each year. PiS wants to take registration and land and mortgage cases out of the courts. These are to be handled by notaries public. They will make entries in the land and mortgage registers and issue notarial payment orders for unpaid invoices.
- Reinforcement of the separation of powers. This is a general slogan, which promises to further strengthen the authority and weaken the courts. It arises from the programme that PiS does not like the application of European law by judges, the undermining of the legality of the neo-NCJ or neo-judges and the refusal to apply unconstitutional laws. PiS writes about an anarchised judiciary. It wants to put an end to this. This could mean new repressions and a new Muzzle Act disciplining judges.
- The abolition of immunity. It is only to apply to private indictments. However, it will not protect judges against the prosecutor’s office, which will be able to intimidate judges in this way, as has been the case under the current government. For example, the prosecutor’s office wanted to lift Igor Tuleya’s immunity for allowing journalists into the courtroom for the announcement of a ruling that was unfavourable to PiS.
- Justices of the peace. This is Paweł Kukiz’s and President Andrzej Duda’s postulate. They are to handle minor cases. Only that the institution of magistrates may be in conflict with the Constitution. Ziobro previously also disagreed with these.
- Fast-track trials for borrowers of franc denominated loans. The burden of proof is to be shifted to the banks.
- Reform of court experts. This has been the biggest problem of the courts for years. There is a shortage of them. Opinions are often poor because the rates for experts are too low and the best experts do not want to be court experts. All the more so because PiS has passed a law punishing them for allegedly wrong opinions. PiS has done nothing about this for the past eight years. Its promises do not solve the problems either. The ruling party is only promising to introduce criteria that court experts are to satisfy. Not a word about whether it will increase the rates for them. And this is a problem.
- Further digitization of the courts.
- Merging of the associations of legal counsels (radca prawny) and attorneys-at-law (adwokat). Such ideas were already around during the PO-PSL [Civic Platform – Polish Peasants’ Party] government. They were also around during the tem of the current government. When implemented by the PiS government, this could be dangerous and could strike at both of the associations.
- Audit of the contracts between the corporations and small businesses. This postulate smacks of the socialist times. PiS assumes that large companies are cheating small Polish companies. That is why it is planning audits at corporations.
- Licences for debt collectors and allocation of cases to receivers by draw.
PiS is going for the CJEU
That is not all. PiS even has plans to ‘reform’ the EU. It is proposing the establishment of a Higher Chamber of the CJEU, in which half of the judges would come from the national Supreme Courts or Tribunals.
This means that PiS would like to send ‘its own’ neo-judges to the CJEU. It also wants to retain the right of veto in the EU’s decisions, to take the courts out of the EU’s hands with regard to the examination of whether they satisfy the criteria of independence. It also wants to examine the rule of law of EU institutions.
Not a word was mentioned in PiS’s programme about how the party wants to eliminate the huge backlogs and queues in the courts. It does not mention this because the authorities would have to admit that Minister Zbigniew Ziobro is responsible for the current collapse of the courts. Instead of reforming the courts over the past eight years, he has focused on staffing them with his own people.
Unprecedented repressions against independent judges have been unleashed. In its programme, PiS is blaming the independent judges and the EU institutions, which have challenged the legality of Ziobro’s ‘reforms’ for what is happening in the courts.
Translated by Roman Wojtasz
Published in Polish in OKO.press.