US Department of State: in 2018 Polish government adopted measures that might have limited judicial independence


Everything you need to know about the rule of law in Poland


In the annual report of the US Department of State on observance of human rights in, the American lawmakers state that during the year 2018 the Polish government continued to implement and introduce new measures related to the judiciary that drew strong criticism from some legal experts, NGOs, and international organizations. Some claim that the government's measures limited the scope of judicial independence

On 13 March 2019, the US Department of State published an annual report on the observance of human rights around the world. The 29-page report on Poland states that:


  • although the Polish Constitution provides for an independent judiciary, in 2018 the government adopted laws that according to some experts limit the scope of judicial independence,
  • the government continued to introduce controversial reforms of the judiciary, despite the fact that they were severely criticised by law experts, NGOs, and international organisations,
  • the government claimed that judicial reforms were intoduced to raise court efficiency; however, the result was the opposite. Statistics of the Ministry of Justice show that the average duration of a court case in 2017 was 5.5 months, whereas it was 4.7 months in 2016 and 4.2 months in 2015.


The report also describes the reactions of the European Commission and the preliminary questions of Polish courts to the Court of Justice of the EU.


Read the full report here and the excerpt concerning the rule of law in Poland below.


Denial of Fair Public Trial

While the constitution provides for an independent judiciary, the government adopted measures during the year that some claim limited the scope of judicial independence. During the year the government continued to implement and introduce new measures related to the judiciary that drew strong criticism from some legal experts, NGOs, and international organizations. In April and May, the president signed into law amendments to the common courts law, the National Judiciary Council law, and the 2017 amendments to the Supreme Court law in response to the December 2017 European Commission rule of law recommendation and infringement procedure.


On July 2, the European Commission launched an infringement procedure against the country two days before provisions of the revised Supreme Court law lowering the mandatory retirement age for judges went into effect, affecting 27 of the 74 Supreme Court justices at that time. The chief justice of the Supreme Court refused to recognize the president’s authority to force her retirement, arguing her constitutionally established length of term takes precedence over legislation lowering the mandatory retirement age for Supreme Court judges.


On August 2, the Supreme Court ruled to suspend further implementation of the mandatory retirement age provisions of the amended Supreme Court law, and requested that the European Court of Justice rule on whether these provisions comply with EU law. The president refused to acknowledge the Supreme Court’s suspension of the mandatory retirement provisions. On September 24, the European Commission referred the country’s amended Supreme Court law to the European Court of Justice (ECJ), stating “the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges.”


The European Commission asked the ECJ to review the law and order interim measures to restore the Supreme Court to its composition before the revised law was implemented. In September and October, the president continued to implement the amended Supreme Court law by appointing judges to the newly created disciplinary and extraordinary appeals chambers and to positions vacated by voluntarily retired judges. Some judicial experts, NGOs, and international organizations saw the president’s appointments as an attempt to preempt any adverse ruling by the ECJ. On October 19, the ECJ issued an interim injunction requiring the government to reinstate those judges who had been retired under the amended law. On November 19, the government submitted legislation to automatically reappoint all justices retired under the Supreme Court law to fulfill the ECJ’s interim measures, and President Duda signed the legislation into law on December 17. At the end of the year, the ECJ had not announced a date for considering the European Commission’s case against Poland’s Supreme Court law.


An increase in the average duration of judicial proceedings made the judiciary less effective. According to Justice Ministry statistics, the average trial lasted approximately 5.5 months in 2017, compared with 4.7 months in 2016 and 4.2 months in 2015. While the government claimed its judicial reforms were motivated at least in part to promote judicial efficiency, some legal experts asserted that the government’s judicial reforms had the opposite effect.


The trial continued of a former chief judge of the Krakow Appellate Court accused of abuse of powers, participating in an organized criminal group, and accepting bribes. The case is part of a wider anticorruption investigation into the Krakow Appellate Court in which 26 persons were charged, 13 of whom remained in pretrial detention.


The trial also continued of the former head of the appeals prosecutor’s office and Rzeszow regional prosecutor on charges of accepting bribes and abuse of power.