President Duda attacks the judges again: they want power. Nonsense, the judges are defending the Constitution and EU law
President Andrzej Duda attacked the organizations of judges for challenging the Polish National Recovery Plan before the CJEU. According to the President, judges want to govern. However, Duda does not understand how the separation of powers works and does not know that judges can protest and express their opinions.
A journalist Bogdan Rymanowski interviewed the President on 30 August 2022 in Radio ZET. Duda was asked about various domestic and international issues, including the vetoes of the judicial bills during the PiS government’s first term of office. They slowed down the government’s takeover of control of the Supreme Court, while the President submitted his own bills on the Supreme Court and the NCJ.
Duda explained that the situation in the courts is very difficult and ‘in fact there is currently a clash between the Polish raison d’état and the legal circles that want power’.
In response to Rymanowski’s question of who wants power, Polish or foreign legal circles, the President replied: ‘You have just made a good point. These are not just Polish circles. These are also foreign circles.’
He then referred to the unprecedented complaint of the four largest organizations of judges to the CJEU regarding the approval by the European Council of billions for Poland for the National Recovery Plan. The organizations acknowledged that the provisions regarding the milestones in Poland’s National Recovery Plan referring to the restoration of the rule of law, which were approved by the EU Council, did not satisfy the CJEU’s rulings and did not guarantee the independence of the courts and judges in Poland.
Duda commented on their complaint as follows: ‘What is noteworthy is the way in which the media that are more suportive of the opposition write about this. They write about the protests of international organizations, but they are, in fact, currently requesting the CJEU to review the Polish National Recovery Plan. This is a kind of alarm bell for the authorities of other EU countries; it is clear that the judicial circles simply want power. These are circles that are not actually democratically elected anywhere.’
Rymanowski asked: ‘Perhaps the judicial organizations simply want the law to be respected?’ Duda concluded: ‘The judicial circles are primarily demanding recognition of their absolute infallibility and clearly the ability to co-opt [recruit to the judicial profession – ed.] and accountability being applied exclusively within their own circles. No democratic state that wants to be a democratic state can agree to this.’
When asked by Rymanowski whether Poland would receive billions from the National Recovery Plan, the President replied that this is an issue that is being played out politically.
Poland will not receive billions from the National Recovery Plan
Alongside the war in Ukraine, the poisoning of the Oder, the drought, and high prices, the problem of billions from the funds for the National Recovery Plan is becoming one of the most important topics for the autumn. This is because the Law and Justice (PiS) party is beginning to realize that the European Commission will not unblock billions from the funds for Poland without the milestones contained in the agreement the government has reached with the Commission being met. The conditions include the partial restoration of the rule of law through the implementation of the CJEU rulings of July 2021. This means the liquidation of the Disciplinary Chamber, the reform of the disciplinary system for judges, and the reinstatement of the suspended judges.
The PiS authorities liquidated the Disciplinary Chamber but established a new Professional Liability Chamber at the Supreme Court in its place. The problem is that its members will include neo-judges of the Supreme Court, who will additionally be nominated by a politician, namely President Duda. Such a court will not be a legitimate court, because a number of rulings of the CJEU and the ECtHR have contested the legality of the neo-NCJ and its nominations of neo-judges. The neo-NCJ is a major source of problems with the rule of law in Poland, but the PiS authorities have done nothing about it. On the contrary, they appointed the neo-NCJ, staffed mainly by Minister Ziobro’s nominees, for the second term of office.
Of the six suspended judges, only Judge Paweł Juszczyszyn from Olsztyn has been reinstated so far. Piotr Gąciarek, Igor Tuleya, Krzysztof Chmielewski, Maciej Rutkiewicz and Maciej Ferek still cannot return to work. A group of a further 20 judges, including Supreme Court judges, are also under threat of suspension.
All of them are being prosecuted for their adjudication or for applying judgments of the ECtHR and CJEU. It cannot be ruled out that the new Professional Liability Chamber will reinstate these five judges in September 2022, when it is to decide on their further status. But some of the new Chamber’s decisions will still be illegal because neo-judges of the Supreme Court have been appointed as its members.
Leading PiS politicians are slowly preparing their voters for Poland’s lack of receipt of billions from the National Recovery Plan. Jarosław Kaczyński has already said that there will be no more compromises with Brussels on the courts and has again announced that PiS will complete the takeover of the judiciary. Meanwhile, PiS MEP Professor Zdzisław Krasnodębski said that the EU is a greater threat to Poland than Putin’s Russia.
Influential Belgian MEP Guy Verhofstadt confirmed PiS’s concerns about the lack of funds for the National Recovery Plan on Twitter. He wrote that ‘Whatever vital role Poland is playing to help Ukraine, it will NOT get EU recovery funds unless it fully restores the rule of law!’
This is why Mateusz Morawiecki’s government, which negotiated the Polish National Recovery Plan with the EC, is already looking for a back-up option. As ‘Gazeta Wyborcza’ revealed, the tasks from the National Recovery Plan are to be financed by the Polish Development Fund. And if the government then comes to an agreement with Brussels, the Eurofunds are to cover the Fund’s expenditure.
Organizations of judges in defence of the CJEU rulings
And in this context, President Andrzej Duda commented in Radio ZET on the complaint of the four largest organizations of judges to the CJEU against the European Council’s approval of the Polish National Recovery Plan. It was filed on 28 August 2022 by:
- the Association of European Administrative Judges (AEAJ);
- the European Association of Judges (EAJ);
- Judges for Judges (Rechters voor Rechters);
- and European Judges for Democracy and Freedom (Magistrats Européens pour la Démocratie et les Libertés, MEDEL).
BREAKING! Four European associations of judges have lodged an action for annulment of the Council's decision to approve Poland's Recovery and Resilience Plan as the judicial "milestones" included therein violate EU Treaties and judgments of the CJEU. https://t.co/nU6lMHfvYr
— Rule of Law in Poland (@RULEOFLAWpl) August 28, 2022
They argue that the conditions regarding the judiciary that Poland has to satisfy to receive EU funding for the National Recovery Plan are insufficient to satisfy the CJEU judgments. They argue that the decision of the European Council (of EU governments) of 17 June 2022 approving the Polish National Recovery Plan with the ‘milestones’ negotiated by Ursula von der Leyen’s European Commission and Mateusz Morawiecki’s government, namely the conditions for restoring the standards of the rule of law in Poland, essentially breaches EU law and standards.
They argue that the ‘milestones’ do not sufficiently guarantee effective judicial protection that the EU Treaty assures for EU citizens, as they are consistent with the rulings of the Court of Justice of the EU.
The associations of judges also point out that the EU Commissioners – EC Vice President Věra Jourová, EC Vice President Margarethe Vestager and Justice Commissioner Didier Reynders – noted that the conditions negotiated by von der Leyen and Morawiecki were insufficient to implement the CJEU rulings issued in connection with the rule of law infringements.
In their opinion, the Council has also ignored appeals from the European Parliament not to accept the Polish National Recovery Plan until the ‘milestones’ reflect the judgments of the CJEU and the European Court of Human Rights.
They point out that, in two judgments of 16 February 2022 in complaints from the Polish and Hungarian governments, in which the CJEU ruled on the compatibility of the mechanism making the disbursement of EU funds conditional on the respect of the values of the rule of law in the Member States, the CJEU pointed out that the rule of law is not only one of the values defining the identity of the EU itself and its legal order, but additionally that the EU and its Member States are also obliged to respect, promote and defend the rule of law.
A debate is currently taking place in the legal circles about the admissibility of a complaint by an organization of judges to the CJEU against Poland’s National Recovery Plan. But the case is precedent-setting. This is because what is at stake is not only the compliance of the Member States with the CJEU judgments, but also whether the law and fundamental values, including citizens’ right to an independent and impartial court, will be respected in the EU.
The President attacked the judges because he was counting on his bill on the amendments to the Supreme Court liquidating the Disciplinary Chamber and establishing a new Professional Liability Chamber unlocking billions for Poland from the National Recovery Plan. However, this proved to be insufficient.
Judges: We are not politicians, we do not want to govern
We asked the two most important Polish associations of judges, which defend the rule of law and the free courts and criticize the PiS ‘reforms’, about Duda’s words: the largest association of independent judges, Iustitia, and the less numerous but equally active Themis.
Head of Iustitia, Professor Krystian Markiewicz: ‘I would like to refer you to the Constitution, on which the President swore an oath. It states there who administers justice in Poland and what the principles are of the separation of powers.’
Article 10 of the Constitution states that ‘The system of government of the Republic of Poland is based on the separation of and balance between the legislative, executive and judicial authorities’ and that ‘Legislative power is vested in the Sejm and the Senate, executive power is vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power is vested in the courts and tribunals.’
In turn, Article 173 of the Constitution stipulates that ‘The courts and tribunals constitute a separate authority and are independent of other authorities.’ Meanwhile, Article 175 of the Constitution stipulates that ‘Justice in the Republic of Poland is administered by the Supreme Court, the ordinary courts, the administrative courts and the military courts.’
Professor Markiewicz emphasizes that judges are not interested in politics, but purely in upholding the law and the Constitution. ‘We are not politicians in togas, like the attempts to discredit us are stating. We are not the ones working in the Ministry of Justice. We are not the ones who receive posts from the head of Solidarna Polska [Minister of Justice Zbigniew Ziobro – ed.]. We are not the ones who receive posts in the neo-NCJ from the Sejm [it is the PiS MPs who elect the members of this illegal body – ed.],’ lists Professor Markiewicz.
The head of Iustitia points out that the complaint of the four legal organizations to the CJEU is an attempt to enforce compliance with EU standards and the Polish Constitution. He believes the complaint is an unprecedented matter. ‘Are judges trying to get involved in politics in this way? No, this is about setting the standards of the rule of law. Those who are destroying the rule of law consider this to be meddling in politics. For us, it is the voice of lawyers in defence of the rule of law. Because the European Commission and the EU governments are also supposed to act within the limits of the law and are supposed to implement the CJEU’s judgments.’
Professor Markiewicz continues: ‘The Polish president has forgotten what law and the rule of law are. He is actively destroying these standards himself, which is confirmed by the rulings of the CJEU and the ECtHR.’ He adds: ‘And now he is shouting ‘stop thief’ in the direction of those who are defending the rule of law, although he himself is also the ‘thief’. He chastises those who draw attention to the destruction of the fundamental democratic principles of states in Europe.’
How is President Andrzej Duda breaking the law and the Constitution? Professor Krystian Markiewicz recalls that the President appointed neo-judges nominated by the neo-NCJ to the Supreme Court in conflict with the injunction issued by the Supreme Administrative Court in 2018. And then, based on this injunction, first the CJEU and then the Supreme Administrative Court ruled that the neo-NCJ was politicized and an illegal body. And therefore it cannot legally nominate judges.
The President also announced the recruitment to the vacant positions in the Supreme Court without the Prime Minister’s countersignature. He has also handed out nominations to neo-judges, thereby contributing to the consolidation of the illegal procedure of their nomination. Professor Markiewicz also recalls that the President pardoned the former head of the Anti-Corruption Bureau, Mariusz Kaminski, an influential PiS politician, during a pending trial. Finally, it was President Duda who bore an influence on the court laws that were later contested by the CJEU and the ECtHR.
Dariusz Mazur, a judge from Kraków, vice-president of the Themis association of judges, believes the same. ‘Those politicians, who want to have unlimited power without any controls in order to abuse it, speak loudest about judgeocracy,’ Judge Mazur tells OKO.press. He adds: ‘And this is the case with President Duda, who has a substantial share in the corruption of the Polish justice system. It is his bills on the Supreme Court and NCJ that constitute the basis for imposing penalties on Poland for not implementing the rulings of the CJEU. He should feel responsible for this, whereas he is finding substitute topics.’
Judge Mazur points out that even President Duda’s bill on the liquidation of the Disciplinary Chamber does not fix anything. Mazur says: ‘The judicial authority is supposed to be independent. Meanwhile, the new Professional Liability Chamber is to have neo-judges who will still be chosen by Duda as a politician. It is clear that this is in conflict with EU law and the Convention on Human Rights [it guarantees the right to an independent, impartial tribunal established by law – ed.].’
Do judges want to govern? Judge Mazur adamantly responds: ‘No and we will not govern. We only want to adjudicate independently of the authorities and not in our own interest, but in the interest of the citizens. It is our duty to the citizens to insist on the independence of the judiciary. If we do not do this, many citizens will soon be deprived of their right to a trial before an impartial court.’
The courts are the last barricade for the authorities to conquer
This is not the first time President Andrzej Duda has attacked the judges. In his election campaign, they were one of his ‘whipping boys’. But he is not the only one who considers independent judges to be the enemy.
The whole of the ruling camp and the right-wing is treating independent judges and free courts as an evil that needs to be destroyed. This is because they are standing in the way of the absolute power that PiS wants. Because the courts are the last independent state institution that has not yet been subjugated by the authorities, although Minister of Justice Zbigniew Ziobro’s nominees already hold some positions.
Independent courts also keep a watchful eye on the authorities. The judges experience repression for this, which is comparable to that which judges experienced at the time of the People’s Republic of Poland. The greatest defenders of the free courts, such as Waldemar Żurek and Igor Tuleya, are systemically being persecuted. The authorities have so far failed to break the Polish judges, while repression is bringing the opposite effect. Judges today are united in defence of the rule of law, while just a handful of careerists have decided to cooperate closely with the authorities.
This is why Jarosław Kaczyński has stated publicly that the courts are the last barricade to be overcome. And that is why the PiS president supports Ziobro’s plan to destroy them once and for all, by liquidating the current ordinary courts (district, regional and appellate courts) and setting up new courts, with an element of replacing unruly judges with ‘their own’.
PiS is not doing this for the moment because it does not know how the EU will react. But if it goes for the courts and takes them, it will then be easier for the authorities to crack down on the free media. However, such a scenario will mean a serious conflict with the EU and possibly taking Poland out of it. Because PiS does not want any control over itself.
For these reasons, the courts have been under strong attack almost since the start of PiS’s rule. The authorities want to dishonour the judges in the eyes of the public. Furthermore, although PiS is already in power for a second term of office, Minister of Justice Zbigniew Ziobro has not only not fixed the biggest problems of the courts that are troublesome for the citizen – the lengthiness of the proceedings – but the courts have even slowed down. The minister has focused on the replacement of staff in order to have ‘his own’ trusted people in the courts.
Free courts are also hated by the right wing. It calls judges known for defending the rule of law politicians in togas. But it has long been prejudged that judges have the right to speak out in the public debate on the judiciary. In recent years, judges have been brave enough to go out of the courtrooms into the streets, to the people, and have started to communicate with them directly and explain how the courts work and why it is important for politicians not to have control over them. They were also criticized for this, but it is hardly surprising that the judges are doing this today.
This is a ‘credit’ to PiS, which wants to dismantle the democratic state and is changing Poland’s structure in a manner that circumvents the Constitution. PiS was counting on the judges keeping quiet. But its actions forced them and the lawyers to take non-standard action. That is why they are loudly protesting today against the destruction of the rule of law. They are doing this not only in Poland, but also in the EU. They are demanding the implementation of the judgments of the ECtHR and the CJEU, because upholding the law is in the interest of the whole of the European community and its citizens.