Bodnar: Accountability, liquidation of the neo-NCJ and review of neo-judges. The courts must be for the people
Laws fixing the courts must be enacted and, if there are presidential vetoes, other solutions should be found. Hold those who broke the law accountable, tidy up the law after Ziobro. The prosecution service is to be reformed – this is what Senator Adam Bodnar, the favourite for the position of the new minister of justice, tells OKO.press about fixing the courts
The interview was published in Polish on 20 November 2023.
Mariusz Jałoszewski: There is increasingly more information that you will be the new minister of justice.
Adam Bodnar: ‘This is not a question for me, but for those who make the decisions on this. In my book “I will never let go”, I wrote that I have an idea and experience, the confidence of the legal community and civil society. And I could find myself in this role to lead the legal world through a difficult period. But this is a decision to be made by Donald Tusk and the democratic coalition majority.’
What should be the first decisions of the new minister of justice? The courts need to be quickly tidied up after Zbigniew Ziobro.
‘I cannot answer that directly, because if too much is revealed and too many details are presented, those who will be affected by these decisions will get prepared for them. These have to be legislative steps and actions that will give the EU and the public a sign that we shall observe the rule of law and respect the independence of the courts from now on.
The priority in the first stage is to unblock the funds for the NRRP and our activities should be targeted at that. In other words, the enactment of remedial laws. Two. Accession to the European Public Prosecutor’s Office. It is important and symbolic for the EC that EU funds will be under control. The third matter is to take steps to reduce the tension between the executive and the judiciary.
Namely, to stop the prosecution of judges for applying EU law. The new minister will also have some influence on the functioning of court presidents and disciplinary commissioners.’
Statutory changes will not be possible within the coming two years, because the president has announced vetoes.
‘I hope that, in order to unblock the funds for the NRRP the European Commission could consider it sufficient for the Sejm to enact laws and obtain a positive opinion from the Venice Commission on these laws. They have to reflect the standards of the rule of law. The EC must be aware that the president will defend the solutions of the previous system, regarding, for instance, the status of the neo-NCJ and judicial nominations.
However, we should remember that the ability of the president to veto laws will end with the end of his term of office in 2025. But I don’t see why the president would veto everything, such as the Act on the new prosecution service. Lex Super Omnia’s bill is consistent with how the prosecution service operated before 2015. President Lech Kaczyński, with whom Andrzej Duda had close ties at the time, approved this model.’
Do you believe that President Duda will agree to separate the positions of prosecutor general and minister of justice again? That he will make the prosecution service independent of politics?
‘This bill is supposed to give the prosecution service independence of the next government. This should even be well received by the new opposition. We are thinking too much about what the president will do. We should be doing our job. Doing the right thing and taking the obstacles into account. If I thought that nothing could be done, I wouldn’t be doing anything about the rule of law, even as the ombudsman.
Meanwhile, my colleagues and I used every possible procedure for almost 6 years to oppose the destruction of the rule of law, to insist on guaranteeing independence for the judiciary or to counter the repression of judges. I also contested the acquisition of Polska Press by Orlen, as well as resolutions passed against the LGBT community.
Many asked why I was doing this, but it made sense in the long term. If you believe in ideals, the rule of law and standards of human rights, then you have to go and explain to the public why it is important from the citizen’s point of view, why a given solution is important and necessary. A position based on respect for constitutional values should be presented firmly and consistently if we are to be a truly modern, civilized and democratic state.’
However, let’s assume that President Duda vetoes all laws regarding the courts for two years. What do we do in the justice system during this period?
‘We strive with all our might to ensure that the president actually does prove to be a guardian of the Constitution, that he does not abuse his powers to pursue vested political interests. Not everything will be a success, but we need to benefit where it is possible.
Some things can be agreed upon, especially regarding efficiency of judicial procedures or solving major systemic problems (such as guarantees of the right to a defence in criminal cases or solutions regarding expert witnesses). I am also particularly interested in abolishing the institution of incapacitation and replacing it with a system of assisted decision-making.
However, if even this isn’t possible, we will hold the president accountable for blocking the reforms. Let’s do whatever we can, but we may need to wait until the end of the president’s term of office for some matters.
The NCJ will be the the most difficult, because the president claims that his judicial nominations are sacred. Perhaps he will yield, as there will be a differentiated approach in the law, for instance, to nominations for assessors; and there will be no automatic removal of nominations, but a vetting or recruitment mechanism.
Perhaps we may need to acknowledge that the nominations for judges to higher courts were ‘unauthorized secondments’ given by an unauthorized body. Not to deprive them of their judicial status, but simply the status of a judge of a higher court. If we explain why this is required as a result of EU law and European standards, there is a better chance of convincing the president not to veto such a law.’
How should nominations of neo-judges be vetted?
‘By the new NCJ with a constitutional membership. I would look for a solution that gives a sense of security to all participants of legal transactions. One of the starting points is the solution proposed in the senate’s bill adopted in the previous term of office. According to that, resolutions adopted by the neo-NCJ on judicial nominations suffer from a “significant legal defect related to a lack of a proper guarantee for the protection of the independence of the courts and judges”. They are therefore subject to review by the NCJ in its new, constitutional form, within 2 years of the date on which the new Act enters into force.’
Some neo-judges received their appointments in non-competitive and non-transparent recruitments. They received nominations through shortcuts. It happened that they even received two nominations, in short intervals. They frequently promoted ‘their own’ judges, members of the neo-NCJ, their families and Ziobro’s people. Vetting without putting neo-judges through new recruitments before a legal NCJ, with full competition will be damaging to all judges who did not take advantage of the opportunity to apply for promotions during these 8 years. Because they knew what the neo-NCJ was. They were not tempted to take a fast jump upwards.
‘It can be acknowledged by statute that these people [neo-judges – ed.] are to return to their original instances and apply for reappointment. They will enter the recruitments that are announced for these more senior positions – on a level footing with everyone else. We have to look for solutions that will be accepted during public consultations. I think the solution proposed in the senate’s bill can be made more precise and detailed. It’s good that an in-depth discussion is currently taking place on this matter.’
Should we leave the judge-members elected to the neo-NCJ by PiS MPs in the Sejm, namely by politicians, until the end of their term of office? Or should we dismiss them?
‘Our concept in Iustitia’s bill is that we dismiss them by a resolution of the Sejm. The question is to what extent the resolution can be implemented and how to bring this about. I know consultations are being held on this and various options are being considered. A very important argument – presented, among others, by Professor Ewa Łętowska – is that of numerous rulings of the CJEU and the ECtHR on the status of the neo-NCJ.
However, I believe we have not considered one matter in our debate. Firstly, we should note that the change of authority means that four MPs and two senators associated with the opposition are entering the NCJ. The Council’s vice-president could be someone from the opposition. There will be a total of 6 politicians, plus the new minister of justice.
Secondly, disciplinary proceedings can be initiated with respect to these 15 judges from the NCJ for their participation in an unconstitutional body. Announcements of judicial vacancies can also be withheld. With the right approach to the NCJ, a situation may be brought about in which it will not play its current role. It will not be a machine for making nominations until the president signs the new Act.
I think it is also worth considering the significance of the rulings of the ECtHR in Żurek v. Poland and Grzęda v. Poland regarding the shortening of the term of office of the previous NCJ. In the past, Judge Oleksandr Volkov from Ukraine was reinstated to the office of judge as a result of a ruling of the ECtHR.
It may be necessary to insist that Judges Żurek and Grzęda can also be reinstated in the NCJ. These actions will be spread over many months. The most important objective is that this body has not contributed to further breaches of the Constitution and to further judicial nominations which are legally defective.’
Professor Ewa Łętowska and Professor Marek Safjan say that the 15 judge-members of the neo-NCJ can be dismissed by a resolution of the Sejm. Professor Adam Strzembosz is not ruling this option out either.
‘This should be considered very carefully and all pros and cons should be weighed up. As I mentioned earlier – the analysis of the consequences of such a resolution is especially important.’
Can the Neo-NCJ stop operating altogether?
‘Its activities can also be blocked in individual cases. Including by filing appeals with respect to the Council’s resolutions to the courts.’
But the appeal against the resolutions of the NCJ is to be filed with the Chamber of Extraordinary Review and Public Affairs, which was appointed by PiS and staffed only with neo-judges of the Supreme Court.
‘Consideration should be given to appeals to the ordinary courts and to administrative courts. Very interesting solutions arise from various proceedings conducted by Professor Michał Romanowski. It is worth looking for inspiration and I have no doubt that lawyers will find effective mechanisms for action. There will be a ruling of the ECtHR in Lech Wałęsa v. Poland next week.
This is a case which focuses various matters regarding the defective functioning of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court. We are yet to have a serious discussion about this Chamber and its members, including in the context of the use of extraordinary complaints by the prosecutor general.
The minister of justice might not announce new recruitments for judges? Can the electricity be switched off for the neo-NCJ?
‘The minister might not announce new recruitments. The government also has budget funding for various actions. The question can be asked about why the members of the NCJ are being paid salaries and per diems if they do not work. It can be said that the activities of a body that is not consistent with the Constitution cannot be financed.’
What should be done with the court presidents and the disciplinary commissioners who have been prosecuting independent judges? They have terms of office.
‘We shall need to sit down with the experts and analyse the ideas. Perhaps some will leave on their own; I’m not ruling that out either. Irregularities will be discovered with each passing month. Maybe some kind of “crown witnesses” will come forward who will explain how the Chamber of Extraordinary Review and Public Affairs and the Disciplinary Chamber were designed and how the judges were selected. What the president’s relationship was with the neo-NCJ. The president will also be accountable to the public, who will also judge him. This could have an impact on the president’s determination to defend the old solutions.’
Should those who broke the law be held accountable?
‘They have to be. I see this at four levels. The tribunal of state for ministers who have committed constitutional offences. In this case, I mean the correspondence elections and the use of Pegasus. Of course, I’m aware that a qualified majority is required to initiate proceedings. But that does not mean that the Constitutional Accountability Committee should not start work.
The second level is criminal trials for abuses of power and decisions without legal grounds. The role of the European Public Prosecutor’s Office may be important, for instance in clarifying the irregularities in the disbursement of EU funds and cross-border tax settlements. A government declaration is sufficient here; there is no need for any statutory changes.
The third level is disciplinary proceedings with respect to anyone who abused their power, such as prosecutors and judges. And the fourth level. I like MP Krzysztof Śmiszek’s concept. He came up with a law and justice commission. We form a group of authorities and experts to prepare a report on breaches of the rule of law. It analyses various methods of repression and intimidation of judges. It focuses on mechanisms and reviews documents.’
‘Such a commission could be established on the basis of a ministerial order. It could collect documents and question people who would like to speak. Of course, this should be voluntary. This could be a form of cleansing for them. It would be for people who have been involved in some procedure and who would confess their guilt. If someone were to appear before such a commission, disciplinary proceedings would no longer be initiated against them afterwards.
The idea is to create a space for explaining the minor stories, the minor mechanisms showing why someone was transferred somewhere. Why someone was disciplined, why someone was not promoted. The commission’s work would result in the preparation of a report. It would not be people’s attitudes that would be assessed, but the mechanisms of operation of the state.
This report should form the basis for greater reflection on how to tighten the system. Perhaps recommendations regarding respect for the independence of the judiciary could be our contribution to the debate on EU law, during the Polish presidency of the European Union in the first half of 2025.’
Should there be a round table meeting on changes in and reforms to the courts?
‘It should certainly not be a round table – I understand such a solution assumes that you sit down at the table with those who have been destroying the rule of law for 8 years. I don’t see any space for such action. An excellent article written by Professor Tomasz Pietrzykowski was recently published about lawyers who completely consciously decided in the last few years to take part in building a system of judicial authority that is subordinated to politicians. This way of thinking is very close to my heart.
However, of course, I see disputes among the experts, social and professional organizations which have participated in the battle over the rule of law for the past eight years. How should this be done? Which way should we go? Which solution is best? We can disagree on the details, on the arguments. But let’s look for areas on which we can come to an agreement.
As the ombudsman, I built up a certain level of confidence in my actions. There was a time when the Ombudsman’s Office was purely a state office where various issues could be discussed independently, especially those regarding the rule of law. And that is why I think that, from the point of view of shaping the future, it is important for a forum for cooperation to exist. And it could be under the minister of justice. He has the tools of specific power and influence over the legislative process.
The minister will need to reconcile various points of view of the legal community; it will be a challenge to sit down with everyone to talk and to counter any unnecessary disputes. But to strive to fulfil the postulate of 11.5 million voters – to make changes restoring the rule of law.’
The PiS government has enacted numerous Acts which are in conflict with European law and the Constitution. Minister Ziobro has made criminal law far stricter; he legalized the so-called fruit of the poisonous tree. In many cases, he placed the prosecution service above the court. Should the Acts regarding rights be fixed by the codification commissions that were in place before the PiS government? So that new Acts are no longer written by ministry officials or on the fly by MPs.
‘We need to return to the tradition from 1918. We should establish criminal, civil and family codification commissions. The last of these is very important, as the Family Code needs to be reformed – an interesting draft was prepared by the former Ombudsman for Children, Marek Michalak, but unfortunately there was no space for an in-depth discussion on this.
What is most needed is a codification commission on criminal law. Participation in these commissions cannot be a reward for deserving professors. The members need to be people who are willing to work and prepare sound amendments based on academic knowledge within a few months. The proposed changes in the law also need to be assessed for compliance with academic knowledge.
The commissions must be interdisciplinary. They also need to include practitioners who will say how it will work in practice (e.g. in courts, in the prosecution service and in law enforcement bodies). This is one of the most important decisions to build trust with the academic community.
The commissions also need to review the law for compatibility with the Constitution and European law, as well as ECtHR standards. Matters of surveillance and the review of the courts over this need to be codified. After all, there will probably be a judgment of the ECtHR on this shortly (more than a year has already passed since the hearing in Pietrzak v. Poland and Bychawska-Siniarska and others v. Poland).
We have the report of the Senate Committee on Pegasus to implement. Court review of the operational control requests of the secret services should be decentralized so that the decision is not made by just one court in Warsaw. An attorney’s presence is necessary at a police station following an arrest. There are many issues to regulate and fix. Last week, the European Commission launched another investigation into the failure to implement the directives on procedural guarantees in criminal and juvenile cases.’
Expert witnesses are also a constant problem for the courts. They are in short supply and are poorly paid. That is why the best experts avoid working for the courts, all the more so since Minister Ziobro has made their liability for an erroneous opinion stricter. There are frequently queues for expert opinions, and they are also expensive. This delays trials.
‘Yes, this system needs to be reformed. The decision to put an end to secondments for judges to the ministry is also very important. The new minister should address this. Of course, the secondments cannot end overnight, but a deadline should be set (e.g. by the end of 2024) and judges seconded to the Ministry of Justice should be slowly replaced by civil servants and lawyers of various professions. On the basis of open competitions, with clear salary rules.
The Justice Institute needs to be reformed into a grant institution which provides services to the Ministry of Justice, through research commissioned to NGOs and universities. If, for instance, the ministry needs to analyse what to do about consumer bankruptcy, it will not ask a professor, but will announce a tender for all institutions. In this way, the creation of an intellectual base for a neglected field, sometimes called “judicial science”, can be strengthened indirectly.’
What should be done with the National School of Judiciary and Public Prosecution, which trains future prosecutors and judges? There are a lot of people there who are connected with the outgoing government; they have an influence on future judges. I heard that one of the people teaching there criticized the training of judges using Google VR, because it’s not a Christian tool. Minister Ziobro will still appoint a new director of the National School of Judiciary and Public Prosecution. He will be a judge from Kielce, Ryszard Sadlik. He will have a 5-year term of office.
‘It’s a mistake to train judges and prosecutors in just one school. If we are serious about the independence of the prosecution service, we should separate it. Lecturers should undergo competitive recruitment, while the whole activity of the National School of Judiciary and Public Prosecution should be a model of transparency and the highest standards. Of course, these most important changes will require statutory changes.’
How should the rulings of the ECtHR and CJEU on Ziobro’s ‘reforms’ in the courts be implemented? There is a great deal of this. They contest the stand-ins in the Constitutional Tribunal, the changes in the Supreme Court, the secondment and transfer of judges, the legality of the neo-NCJ.
‘I am of the opinion that the appointment of stand-ins to the Constitutional Tribunal can be declared invalid by a resolution of the Polish Sejm. This is what the ruling of the ECtHR in Xero Flor v. Poland requires of us. Judges who were legally elected in 2015 should be allowed to rule. But it may take some time to reach independence in the Constitutional Tribunal. Some judges of the Constitutional Tribunal may leave on their own and new judges will be elected. Meanwhile, others may acknowledge that they are lawyers and may become independent.
But we have to wait for the end of the term of office of the current judges, other than the three stand-ins. I hope that the majority of the Constitutional Tribunal will shortly be judges we can trust. Who the president of the Constitutional Tribunal will be is important. There should come a moment when someone similar to Professor Marcin Matczak sets a new tone for the Constitutional Tribunal. He will rebuild its authority.’
What about the neo-judges of the Supreme Court?
‘We should enact a new law on the NCJ and conduct a review. I come back to what Professor Pietrzykowski stated – all candidates to the Supreme Court in 2018 and later knew what they were signing up for. That an appointment from the NCJ could be defective. Likewise with the Chamber of Extraordinary Review and Public Affairs and the Professional Liability Chamber. They can be liquidated by statute.’
The judges say that they now want to build modern courts. But what do you believe truly reformed courts should be like?
‘They first need to be fixed quickly after the PiS governments, because the average citizen will not be fully aware of what the NCJ or the neo-judges are all about. Jarosław Gwizdak [a former judge – ed.] recently described this nicely – how is a citizen supposed to know whether he is dealing with neo-judges, paleo-judges or meso-judges and what is the dispute about?
Of course, this lack of awareness does not mean that these reforms should be discontinued. This is the foundation. But the efficiency of the courts must be improved in parallel with these measures. And, in the first stage, the judges must be strengthened with assistants and clerks. Two. Consideration must be given to the even loading and financing of the courts.
The so-called Swiss franc courts or those dealing with pensions of former secret service officers are swamped with cases. Must the majority of them be heard in Warsaw? This needs to be accelerated. Another matter is the preparation of a comprehensive improvement in the efficiency of the judiciary.’
‘A deal can be made with the World Bank that we are implementing a long-term reform of the judiciary. We are setting a long-term timetable for computerization and for bringing about even case loads for judges. The World Bank has experience of reform efforts of this type on various continents.
It cannot be that every new minister of justice has new ideas and implements them only piecemeal. This will not improve anything. There must be a plan that will result in Poland finally being able to be proud of decent, well-functioning courts. And for judges to start smiling, feeling that they are serving the citizens. Such a plan would be binding on all successive ministers of justice.’
In the courts, people missed the fact that the court was seeking justice in the judgment. There was frequently an attachment to formalisms. What should be done for the judge not only to pass sentence in accordance with the law, but also in accordance with justice?
‘I was talking to a colleague of mine from Bulgaria, Professor Daniel Smilov. We talked about trust in the courts. They don’t have a problem with that. Why? He said that state land was reprivatized in the 1990s. This meant that every family there received a piece of land from a state farm. And this was ruled on by the courts, which awarded them. And that built trust in the courts. The people saw that the courts were there to do something for them. They started to have positive associations because people received something from them.
In Poland, the franc cases have a similar potential. Winning them, or being awarded compensation for instance for groundless retention; will build this trust. Tomasz Komenda became a symbol of the principle of liability of the State Treasury for damages working. The courts can show that they are a tool for winning against the strongest ones of this world. It is a way of rebuilding communication trust. I would head in that direction.
These recent times have given people a high level of confidence in the courts. They took to the streets in their defence because they understood that they are the third authority on which something depends. I keep repeating the argument raised by my colleague from the Ombudsman’s Office, Mirosław Wróblewski – the courts have drawn a debt from the citizens. Many protested in their defence, realizing that the courts are inefficient. But now I know that the judges alone will not repay this debt. They must have the trust and cooperation of the executive authority.’
Translated by Roman Wojtasz
The interview was published in Polish in OKO.press
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