Justice Minister Adam Bodnar’s action plan for restoring the rule of law in Poland – this is how the minister himself calls the plan – consists of two parts:

• The first applies to the activities that the government will take without the need to pass new acts. These are the so-called soft activities.

• The second part applies to legislative activities planned up to the beginning of 2025.

In this part, the ruling coalition intends to enact 10 bills. These will be the Acts on

• the Constitutional Tribunal,
• the National Council of the Judiciary (two bills),
• the Supreme Court,
• the Prosecution Service (two bills),
• the Ordinary Courts (two bills, including an ‘Anti-Muzzle’ Act),
• the execution of judgments of the European Court of Human Rights
• and the status of the employees of the courts and the prosecutor’s office.

Bodnar presented his plan in Brussels on Tuesday 20 February 2024. He talked about it, among others, with the deputy head of the European Commission, Věra Jourová, and the Commissioner for Justice, Didier Reynders. It arises from leaks from the meetings that the plan was positively received.

Donald Tusk’s government hopes it will help the European Commission resolve two matters:

1. Unblocking of  billions of euros for the National Recovery and Resilience Plan (NRRP) – it is speculated that head of the European Commission, Ursula von der Leyen, who is to be in Poland on Friday, will announce a breakthrough in this matter.
2. The second objective is for the European Commission to end the infringement proceedings against Poland under Article 7 of the EU Treaty in connection with breaches of the rule of law.

These proceedings were initiated in 2017 in connection with PiS’s ‘reforms’ subordinating the Supreme Court, the Constitutional Tribunal and the National Council of the Judiciary to the authorities. Minister Bodnar mentioned earlier that his dream is to end this procedure against Poland.

Tusk’s government has a good chance of reaching an extensive compromise with Brussels. The key bills in Bodnar’s plan are to be adopted in the first half of this year. The government enacted the first bill from the plan on Tuesday, 20 February 2024. This is an amendment to the Act on the National Council of the Judiciary, which introduces elections for the 15 judge-members of the NCJ. They will be elected by judges instead of MPs, as the current members of the neo-NCJ were elected. The bill also terminates the neo-NCJ.

These acts will require President Andrzej Duda’s consent for them to enter into force. But even if he vetoes them, the government will still send a strong signal to Brussels that it is willing to restore the rule of law. And the proof will be the legislative actions. Such a signal could be enough for the EC, because it knows that Duda is connected with PiS.

The non-legislative actions proposed in the ‘action plan’ are also intended to help unblock the funding for the NRRP and end the infringement proceedings. And so are the decisions Minister Bodnar has already implemented since the beginning of his rule.

• Bodnar replaced the management of the prosecutor’s office, which was politicized by Ziobro, and which is an important element of the justice system. It was also prosecuting independent judges.

• The minister also started the process of dismissing the Ziobro-nominated court presidents. He appointed three extraordinary disciplinary commissioners, who are taking over the disciplinary activities from Ziobro’s disciplinary commissioners. Namely from Piotr Schab, Przemysław Radzik and Michał Lasota. These actions are intended to help change the climate in the courts and end the repression of judges for defending the rule of law and applying European law. And this is one of the conditions for unblocking the funds for the NRRP.

Furthermore, the minister changed the rules of procedure of the ordinary courts. According to these, neo-judges cannot participate in the consideration of applications for disqualification and testing of other neo-judges. The ability to test neo-judges is also one of the conditions for receiving funding for the NRRP. During the PiS rule, judges were prosecuted for this by Minister Ziobro’s disciplinary commissioners.

The activities intended to restore the full rule of law, the applicability of European law and the constitutional order in Poland are being coordinated by an inter-ministerial team. It includes not only government representatives, but also experts from non-governmental organizations dealing with the rule of law.

Importantly, Bodnar wants to use the need to restore the rule of law to truly reform the justice system. This is also a part of his action plan. To this end, he will also appoint four codification commissions, for

1. criminal law;

1. civil law;

1. family law;

1. and the structure of the courts and prosecution service.

There will also be an act on court experts.

How Bodnar wants to restore the application of European law through soft actions

The first part of Adam Bodnar’s action plan envisages decisions regarding the restoration of the rule of law, which do not require statutory changes.

A review of Poland’s positions in cases pending before the ECtHR and the Court of Justice of the EU (not only those that apply to Poland) has already started. These mainly apply to matters regarding the rule of law, the relationship between national law and EU law, and the applicability of CJEU and ECtHR judgments in Poland. The government is also checking various objections from EU institutions with respect to Poland.

The government has changed its position on the EC’s complaint regarding Julia Przyłębska’s Constitutional Tribunal and has accepted the EC’s allegations. It agrees that full independence needs to be restored to the Constitutional Tribunal. The government has also submitted positions to the CJEU in which it confirms the right of judges to submit requests for preliminary rulings. It also requests a positive response on matters regarding the independence and impartiality of the courts.

The government also accepts the ECtHR judgments issued so far regarding Poland and has declared its willingness to implement them. Meanwhile, in the ongoing cases, the Ministry of Justice is reviewing its position and is accepting the ECtHR’s interpretation of Article 6 of the European Convention on Human Rights.

This Article gives citizens the right to a fair trial before an independent and impartial court established by law. It was on this basis that the Court of Justice questioned the status of the Disciplinary Chamber, the Chamber of Extraordinary Review and Public Affairs, the neo-NCJ and the nominations it gave to neo-judges (a tribunal with neo-judges is defective). The government is also working on implementing other ECtHR human rights judgments.

Package of acts

The second part of Justice Minister Adam Bodnar’s action plan assumes the adoption of a package of 10 acts. The government does not want to concern itself with the problem of whether Duda will veto them. The legislative offensive will be a clear signal that it wants to restore the rule of law and change the justice system. Furthermore, it wants to hold a debate on the real reform of the courts, which has to take place anyway. Minister Bodnar announces that real public consultations will be held.

Nothing will be wasted if there are any presidential vetoes. Because if a new president who is willing to cooperate appears in the middle of 2025, it will be possible to quickly pass ready bills.

The bill partially amending to the Act on the NCJ will go first, because it is the source of problems with the rule of law in Poland

The government adopted it on Tuesday, 20 February 2024. It is speculated that the Sejm will adopt it at the Sejm’s session starting on Wednesday (it is not yet on the agenda). The bill assumes a change in the method of electing 15 judge-members of the NCJ.

PiS abolished their election by judges. And introduced their election by the Sejm in conflict with the Constitution. The PiS MPs primarily elected judges who decided to cooperate with Ziobro’s ministry. This is why the CJEU, the ECtHR, the Supreme Court and the Supreme Administrative Court questioned the legality of the neo-NCJ. Because this body is politicized and in conflict with the Constitution. And the neo-judges it nominates do not guarantee citizens the right to a trial before an independent court.

The bill enacted by the government assumes that judges will be elected to the NCJ by judges in elections organized by the National Electoral Commission. Neo-judges will not be able to enter them. Groups of 10–40 judges will be able to nominate candidates. There will be public hearings of them. The current, illegal neo-NCJ will be terminated.

This bill does not reform the whole of the NCJ. It also does not resolve the problem of its nominations for neo-judges. Bodnar is leaving this for stage II.

The association of judges, Iustitia, which has its own bill, supports the holistic reform of the NCJ. It is in favour of the new NCJ taking over administrative supervision over the courts from the Ministry of Justice. Bodnar is not saying no. In an interview with OKO.press, he said this would be considered during the further talks. Meanwhile, the minister agrees with Iustitia that neo-judges should not be vetted. But recruitments should be repeated before the legal NCJ.

The second bill reforming the whole of the NCJ is to be enacted this year, before the summer holidays.

The Supreme Court and the Constitutional Tribunal

The Constitutional Tribunal and the Supreme Court are also on the list of priority bills. Both bills are to be enacted before the summer holidays.

In the case of the Supreme Court, the Ministry of Justice will use the bill prepared by Iustitia as the basis. Bodnar assumes – he also said this in his interview with OKO.press – the liquidation of the two chambers of the Supreme Court that were established by PiS. These are the Chamber of Extraordinary Review and Public Affairs and the Professional Liability Chamber.

Both are illegal, their status is questioned by the CJEU, the ECtHR, the EC and the legal Supreme Court. They are staffed with neo-judges and have the status of special courts. Additionally, the president and the prime minister, namely politicians, nominated the people who are to adjudicate in the Professional Liability Chamber.

Furthermore, the extraordinary complaint, which PiS also introduced, will be abolished. Minister Ziobro used it to cancel judgments that were inconvenient for the government in the illegal Review Chamber. He also used it to the detriment of his opponents. It was used to cancel two judgments that were favourable for Judge Waldemar Żurek and one that was favourable for Lech Wałęsa. Minister Bodnar is conducting an audit of extraordinary complaints which have not yet been examined by the Review Chamber to check whether they can be withdrawn.

As for the Constitutional Tribunal, the government wants to start making changes with a resolution from the Sejm. Perhaps it will be discussed during the current session of the Sejm, but it is not yet on the agenda.

It is unknown what it will contain. Minister Bodnar said in an interview that it would encompass stand-in judges and the matter of Julia Przyłębska’s presidency in the Constitutional Tribunal and its consequences for the whole of the Tribunal. According to lawyers, her term of office has expired.

Regardless of this, there will be a bill reforming the Constitutional Tribunal.

The Ministry is relying on a bill prepared by experts under the auspices of the Batory Foundation. The government is not ruling out the possibility that the Constitution may need to be amended.

Prosecutor’s Office, Anti-Muzzle Act

Two more bills are urgent

• the separation of the positions of prosecutor general and minister of justice;

• and the withdrawal of the repressive provisions regarding judges which were introduced by PiS through the Muzzle Act of 2020.

The Muzzle Act was intended to block the questioning of the status of the Disciplinary Chamber, the Constitutional Tribunal, the neo-NCJ and neo-judges under threat of penalties. In other words, it prohibited judges from implementing the judgments of the CJEU and the ECtHR on this. Both of these bills are to be enacted before the summer holidays.

The current ruling coalition promised to separate the positions of prosecutor general and minister of justice. Adam Bodnar also wants this. Because this will make the prosecution service independent of politicians. Because  Zbigniew Ziobro subordinated it to his party. The Sejm will most probably elect the new prosecutor general, with the consent of the Senate. An absolute majority of votes will be needed for this.

The new prosecutor general will receive significant guarantees of independence. Notwithstanding this, the recruitment of a new national prosecutor is currently in progress. He will replace Dariusz Barski, Ziobro’s trusted person, who was removed from office in January 2024.

• An act on the new prosecutor’s office will be passed later.

It will establish its final structure, promotion paths, the responsibilities of prosecutors and their individual independence. It will also introduce a new model of their disciplinary liability.

In the case of the ‘Anti-Muzzle’ Act, a quick amendment to the Act on the Structure of the Ordinary Courts is planned, removing the provisions regarding repression of judges from it. This amendment is urgent because the CJEU ruled in June 2023 that it was in conflict with EU law.

Therefore the Ministry of Justice will propose:

• the removal of the obligation for judges to submit declarations of membership in associations. They were also being prosecuted for this;

• the provisions of Article 107 of the Act on the Courts prohibiting the examination of the status of neo-judges or neo-NCJ, prohibiting activities allegedly obstructing the administration of justice and referring to the alleged refusal to administer justice will also be removed.

They were used to attack judges demanding the implementation of court decisions that applied to them or refusing to adjudicate with neo-judges. For example, disciplinary commissioners initiated disciplinary proceedings for the refusal to adjudicate with neo-judges. It is planned that disciplinary action taken under the Muzzle Act will be discontinued.

Courts, pay rises for employees, implementation of ECtHR judgments

Bodnar’s ministry also wants to regulate the matter of the secondment of judges to adjudicate in higher courts by the summer holidays.

The CJEU questioned the minister’s right to second and dismiss judges without giving any reasons in 2021. Because the minister can influence judgments of judges in this way. The ministry plans to introduce criteria for seconding and withdrawing secondments. So that these are not arbitrary decisions. Minister Ziobro punished unruly judges by withdrawing secondments.

• Furthermore, the minister considers that it urgent to restore the judicial self-government in the courts, to once again jointly decide on the most important matters, 

• as well as changing the disciplinary system of judges.

The CJEU also contested this system in its judgment in July 2021. And its change is a condition for unblocking the funds for the NRRP.

The ministry wants disciplinary proceedings to be objective and independent. Therefore, the disciplinary commissioners will need to be replaced and the Professional Liability Chamber will need to be liquidated.

Other changes to the courts are planned for a later stage.

• This applies to a holistic bill on the structure of the ordinary courts, referring to their structure, organization, financing, computerization of the courts and the status of judges (what is required of them and their disciplinary liability). Work on this bill is due to start in the second half of the year.

• Additionally, Minister Bodnar wants to regulate the status of the employees of the courts and prosecutor’s offices with another new act. In an interview with OKO.press, he said that he would fight for pay rises for them.

• The last of the planned bills applies to Poland’s implementation of the judgments of the ECtHR. The PiS authorities, with the help of Przyłębska’s Constitutional Tribunal, questioned their validity in Poland. The new act to be adopted in the first half of 2024 will specify the principles and timing for implementing ECtHR judgments.

Translated by Roman Wojtasz

The article was published in Polish in OKO.press on 20 February 2024.