Where are we after a year of restoring the rule of law? [DEBATE]
Rebuilding the rule of law is both a challenge and an opportunity to demonstrate to other countries emerging from authoritarianism that it can be done. Where do we stand now? What picture emerges from the legal changes and battles, as detailed in OKO.press?
According to Minister Adam Bodnar, the process of restoring the rule of law is progressing. Slowly, but in compliance with laws and procedures. This allows the standards of a state governed by law to be rebuilt. Much can be done, despite the PiS-affiliated President blocking legislative changes.
Codification commissions composed of eminent independent lawyers are working, and their proposals for legal amendments will be reviewed by the Venice Commission to ensure they fit within the framework accepted by European courts.
The prosecution investigating abuses by the previous government is gaining momentum. In December, actions are expected to address, for instance, the prior government’s attacks on protesting citizens.
Experts and citizens assessing the Ministry of Justice’s actions note, however, that institutions like the “Schrödinger’s cat” still operate: the neo-NCJ (National Council of the Judiciary), the neo-chambers within the Supreme Court, and the Przyłębska Constitutional Tribunal. Although these entities are said not to exist due to their defective status, their members are thriving in the public sphere. Yet they do not need to be invited to institutions like the Sejm.
The legal community is divided on the issue of neo-judges. However, as participants in the discussion emphasized, the focus should not be on the comfort of judges who did not betray the rule of law. Instead, the key issue is what will happen to the rulings issued by neo-judges.
The President of Iustitia acknowledges: neo-judges will remain in Poland’s judiciary.
The crucial question is whether current reforms will survive the next political shift. To ensure this, reducing polarization and building the conviction that restoring the rule of law benefits everyone is essential.
Batory Foundation and Helsinki Foundation for Human Rights Conference
On November 28–29, the Batory Foundation and Helsinki Foundation for Human Rights convened a two-day conference, bringing together experts, activists, and professionals in the justice system. The Minister of Justice presented a report on his first year in office. The report was commented on by experts: Maciej Nowicki, President of the Helsinki Foundation for Human Rights; Krystian Markiewicz, President of the Association of Judges Iustitia; Prof. Ewa Łętowska, former Ombudsperson and retired Constitutional Tribunal judge; and Prof. Aleksandra Kustra-Rogatka.
Below is an account of this debate.
Bodnar’s Report: “Now I Am a Politician”
“Perhaps for you, a year has already passed, but for me, there are still two weeks until the anniversary of taking office, during which some significant developments will occur,” began Minister Adam Bodnar. He outlined:
On December 13, 2023, the two-week PiS government concluded its tenure. At the time, there was no certainty that the government elected in the October 15 elections would be able to function normally. We inherited a widespread sense of impunity, with the belief that, since accountability for abuses had been avoided for so many years, this state would continue.
The consequence of destroyed international relations was the suspension of funds from the National Recovery Plan.
The task of the Ministry of Justice involved institutional reforms, reshaping key bodies institutionally and personnel-wise. These included the Prosecutor’s Office, the National Council of the Judiciary, and the Constitutional Tribunal. Additionally, many courts are staffed by judges appointed based on recommendations from the neo-NCJ since 2018, who also influence the functioning of the judiciary.
Institutional reforms could not be fully realized due to ongoing obstacles (e.g., the President not signing laws passed by Parliament – editor’s note). However, the process aimed at broader goals:
- Institutional reform should be conducted within the boundaries permitted by international and constitutional rules.
- Restoring trust with the European Union, international organizations, and bilateral partners.
- Establishing mechanisms for accountability for abuses.
“And something that often escapes notice, but is crucial: ensuring reliability and transparency in the functioning of state institutions,” Bodnar emphasized.
Institutional Reforms
At the Ministry, we have been and continue to do everything possible within the limits of the law to achieve genuine change. Examples include:
- Changing the presidents of over 120 courts, with the approval of judicial collegiums, granting judges the ability to decide who should be a candidate for new president roles.
- Appointing ad hoc disciplinary officers to halt shameful disciplinary proceedings against judges.
- Reforming institutions subordinate to the Ministry, such as the National School of Judiciary and Prosecution and the Institute of Justice. New competitions are underway in two other Ministry institutions.
- Introducing changes to the penitentiary service.
- Limiting the delegation of judges and prosecutors to the Ministry of Justice within feasible limits. “For example, if there are experts in extradition who have been working at the Ministry for some time, it is challenging to find similar experts on the market.”
Lastly, renewing the legislative process, with the establishment of four codification commissions and an expert team on EU law advising on Poland’s presidency of the EU, as well as a team dealing with challenging cases (e.g., the “Kamil Act”).
The National Council of the Judiciary (NCJ)
The restoration of the NCJ is of fundamental importance. On December 20, 2023, Parliament adopted a resolution on the NCJ’s status, allowing the Minister to freeze new judicial appointment competitions. “I regret that the Supreme Administrative Court did not follow the same path.”
Subsequently, Parliament adopted the Act on the NCJ, although it faced certain challenges (due to the Venice Commission’s opinion and a Senate amendment).
[This Act has not come into force, as President Duda referred it to Przyłębska’s Constitutional Tribunal before signing – editor’s note.]
“The functioning of the NCJ remains an open issue, particularly regarding next year’s budget and its continued operations.”
Status of Judges
“It is also important to consider the approach toward judges appointed after 2018” (i.e., by the neo-NCJ – editor’s note).
“A deep and divisive debate within the legal community accompanied this issue. We now have the Venice Commission’s opinion, and a draft law is being prepared. The codification commission on the judiciary and prosecution is also working on it.”
“A recently adopted key document is the General Prosecutor’s guidelines on the status of neo-judges adjudicating in the Supreme Court.”
Anna Materska-Sosnowska, moderating the debate (questions were asked following the presentations, but are included here within relevant sections): “So, Minister, what specifically about the neo-judges? Over 1,000 rulings have been issued with their participation. Nearly one-third of Polish judges have been appointed by the neo-NCJ. How can this issue be resolved without causing greater chaos and further delays in the courts?”
Bodnar: “This is why we have the Venice Commission’s opinion on the draft law. It is clear that even if we evaluate judges, the status of their rulings will be defined at the legislative level. There will be a mechanism for revisiting some proceedings, but the rulings themselves will remain valid. The principle of maintaining the validity of these rulings has already been indicated by the codification commission.”
The Prosecutor’s Office
Bodnar: “There is a lot happening here.”
One of the first decisions of the government was to join the European Public Prosecutor’s Office. We are finalizing work on a law that will regulate institutional and procedural matters. Poland’s European Prosecutor has also been selected. I believe this will all be announced in December.
A significant debate is unfolding over changes to the position of the National Prosecutor. “I do not wish to delve into this. However, I would like to highlight how the National Prosecutor was chosen. This was done through a public and transparent competition, involving hearings of various candidates.”
The growing importance of the National Council of Prosecutors is also noteworthy. This body, which had little presence in our social reality, has now become significant in debates about the future of the prosecution service.
On December 11, a ceremony is scheduled to issue certificates confirming the selection of 88 new disciplinary judges for the disciplinary court at the General Prosecutor’s Office. These certificates reflect the choices made by assemblies of prosecutor-delegates.
Materska-Sosnowska: Minister, how many prosecutors are there in the country?
Bodnar: About 5,800, nearly 6,000. We have 9,000 judges. About 3,600 belong to SSP Iustitia, and over 200 to the Themis Association. In terms of prosecutors, the Lex Super Omnia Association had about 200 members at its peak, many of whom are now retired. This illustrates the scale of the challenge.
Marcin Mycielski, Open Dialogue Foundation (question from the floor): When will all prosecutors nominated and delegated by Ziobro leave the prosecution service? Why are some of them currently auditing their own cases?
Bodnar: So far, three prosecutors have been suspended for very specific reasons. Every individual action against prosecutors must comply with the Law on the Prosecution Service, and this is neither simple nor straightforward. As for audits, I can assure you that I am doing everything in my power to ensure these audits are conducted by individuals who are entirely independent.
Separation of the Minister of Justice from the General Prosecutor
The process of separating the Minister of Justice from the General Prosecutor’s Office is advancing. The Venice Commission’s opinion proved very helpful in reducing political influence over the appointment of a new General Prosecutor.
The project has now reached the Standing Committee of the Council of Ministers, and I hope it will soon be adopted by the Council of Ministers.
The Constitutional Tribunal
Bodnar: “I am very grateful that we have established collaboration with non-governmental organizations, resulting in two draft laws supported not only by the ruling coalition but also by many experts and public authorities.”
The outcome was the Sejm’s resolution of March 6, 2024 (declaring the current Tribunal unlawful). We have these two laws and a constitutional amendment project (adopted by the Sejm but referred to Przyłębska’s Tribunal by President Duda before signing – editor’s note).
“This has created a somewhat difficult relationship between those interested in restoring the rule of law and the body calling itself the Constitutional Tribunal. Consequently, the ruling coalition has refrained from nominating new candidates to the Tribunal, and the Sejm has significantly reduced the Przyłębska Tribunal’s budget.”
“Sooner or later, everyone will understand that we must rebuild an independent Constitutional Tribunal.”
Accountability for Past Abuses
The process of restoring the rule of law is not limited to institutional changes. It also involves accountability. “These two elements are strongly interconnected for me.”
“In terms of accountability, I would like to highlight four areas.”
1. Persecution of Judges and Prosecutors
Over the years, judges and prosecutors were subjected to various forms of discipline, repression, and harassment. Ad hoc disciplinary officers have been crucial in addressing these cases step by step and lifting this burden.
Judges were also victims of the “hate scandal.” This matter has gained significant momentum since the Wrocław District Prosecutor’s Office took it on. Requests to lift immunities are underway.
“The wheels of justice turn slowly, but eventually, there will be results.”
Victims among judges and prosecutors were also subjected to surveillance using Pegasus.
Reports from those harmed by government abuses are another critical aspect of the accountability process (about 15 such reports from judges and prosecutors exist). I strive to ensure that the prosecution service handles these cases diligently. Civil lawsuits filed by victims are also ongoing, as is the issue of formal apologies on behalf of the Polish state.
2. Persecution of Citizens
This includes SLAPPs (Strategic Lawsuits Against Public Participation) filed by the state against citizens voicing public concerns. SLAPPs targeting social organizations and citizens are also part of this broader issue.
The prosecution service conducted “a thorough review of various cases that had been discontinued in recent years. Some of these cases have been reopened.”
“In December, I plan to take action with the Ministry of Internal Affairs and Administration regarding various groups of citizens who protested over the years. While we have focused on major prosecutorial cases, many smaller, police-related cases remain unresolved. These must also be thoroughly examined.”
There are also numerous cases where suspicions arise that actions were politically motivated. These are difficult to unravel as they are at different stages—some still in the prosecution service, others already in court.
We are working, especially within the prosecution service, to respond to reports from social organizations. One of these reports, endorsed by Lech Wałęsa, serves as a guideline for reviewing these cases.
“The prosecution service assures that it will provide a comprehensive response by the end of December.”
3. Accountability for Government Abuses
Three parliamentary inquiry committees (concerning Pegasus, the visa scandal, and mail-in voting) have gathered significant evidence for the prosecution service’s involvement.
There is also the issue of assessing the work of the Smolensk subcommittee led by Antoni Macierewicz.
The Justice Fund itself is a massive topic. The prosecution service has uncovered perhaps only one-third of the issues so far.
Numerous reports from State Forests, state-owned companies, and state-affiliated funds also require careful and meticulous examination. These often involve both executive power abuses and financial fraud.
Remember that investigative teams in the prosecution service need time to mature in their work. Results will become evident in due course.
4. Restoring Standards
Voices are emerging from civil society and influential figures calling for faster action.
“I am alarmed when such calls come from individuals who fought for the rule of law for eight years.”
Restoring the rule of law is a highly complex task across legal, social, and communication levels.
“We still underestimate the impact of eight years of consistent institutional destruction. Repairing this damage within a year is an immense challenge.”
What we perhaps fail to appreciate is that within a year, we have established practices of public life that are becoming the norm.
For example, consider the competition for the position of judge at the European Court of Human Rights. Dozens of excellent candidates, a remarkable selection committee, and a process conducted in the spirit of constructive dialogue. This procedure is now considered exemplary by the Council of Europe.
After a year, I feel we are still moving in the same direction, even if the river’s course occasionally meanders. We cannot lose determination or faith in building a long-term stable democratic state.
Regarding the European Union and the Council of Europe, our responsibility extends beyond fixing our country’s reality. We aim to provide a positive example and support for other nations in crisis.
Important Issues: Swiss Franc Borrowers, Judicial Efficiency
Anna Materska-Sosnowska: Professor, what didn’t work out?
Adam Bodnar: I am now a politician. I do not see myself as someone who should now explain what didn’t work. Some processes are planned over four years, not just one.
For me, a critical issue is improving judicial efficiency. I am proud of the work of the Commissioner for Consumer Rights Protection, Dr. Aneta Wiewiórowska. Over the past year, she has worked tirelessly to build consensus wherever possible, so that we face fewer issues related to Swiss franc loans and more settlements. Now, over 3,000 settlements are reached monthly, compared to about 150 a year ago. This is a concrete improvement.
We also managed to secure funding for over 1,000 judicial assistant positions in next year’s budget. This is a tangible result. Citizens will start to feel the change.
Materska-Sosnowska: What are the most important tasks in the near future?
Bodnar: We have another six months until the presidential elections. We must use this time to prepare legal acts that meet all the criteria of the rule of law. The outcome of the presidential elections may provide an opportunity to complete the process of restoring the rule of law.
Last week, we had an excellent meeting with NGOs about implementing the Strasbourg Court’s ruling on surveillance. We agreed to continue working together—through dialogue involving the Ministry of Justice, the Ministry of Internal Affairs, special services, and organizations—to prepare a package of reforms. Mechanisms that allow for surveillance are also moving forward as another key topic.
Suspension of the Right to Asylum—Bodnar’s Response
Marek Dąbrowski: Although I am an economist, I would like to ask for your reaction to the temporary suspension of the right to asylum (announced in the government’s migration strategy).
Bodnar: I wouldn’t want to repeat today what was discussed during the public hearing just a few days ago.
Regarding the suspension of the right to asylum, I believe my role was to ensure that during the Council of Ministers’ discussions, amendments were made requiring parliamentary oversight mechanisms, protection for vulnerable groups, and solutions inspired by other countries—Finland, for instance.
Experts on Bodnar’s First Year
The panel commenting on Bodnar’s report included Marek Nowicki from the Helsinki Foundation for Human Rights, Prof. Krystian Markiewicz from Iustitia, Prof. Ewa Łętowska, and Prof. Aleksandra Kustra-Rogatka. The discussion was moderated by Krzysztof Izdebski of the Batory Foundation.
“Sailing in the Right Direction, but There’s No Finish Line”
Ewa Łętowska: Someone said that Bodnar, although he is a minister, still remains a defender of citizens’ rights. Let me use all the authority of my experience to say this: Bodnar is now a minister, and we must address our expectations to him in that role.
To the panelists and the audience—Łętowska turned to them—you also need to be aware of your own position. You are, in the noble sense of the word, lobbyists for your causes. NGOs are a pressure group, but they cannot demand that someone in a different role abandon that role. Especially if they are suitable for it and can be useful.
“A flaw arising from our legal training is the belief that writing laws is enough to make everything better.”** The legislative path is the one most familiar to us.
However, law is not just made of statutes; it also encompasses standards. Law has four dimensions. It includes:
– the abstract,
– the potential,
– but also the concrete,
– and the situational.
When you ask whether accountability will address the wrongs suffered due to the “feudal” behavior of the police, you are asking about the latter two dimensions, which were missing at the right moment. In terms of statutes governing the use of force by police, everything is in order.
Today, you see the problem with restoring the rule of law because the legislative path is blocked. Academics who draft laws and sit on codification commissions usually focus on the first two dimensions and do not fully grasp the importance of four-dimensional analysis.
We are asking the wrong questions and formulating expectations incorrectly.
To sensibly discuss whether everything possible has been done or whether something achievable has been overlooked, we must start from the bottom—not with the rule of law in general but with concrete details.
Restoring the rule of law is like tacking in sailing—it’s a process. You can’t do it in a straight line. In government meetings, you deal with coalition partners, NGOs apply pressure, and then there’s the “fifth column” in both the prosecution service and the judiciary. This isn’t made up of open opponents of restoring the rule of law, but cautious individuals waiting to see how things unfold without taking risks.
No Finish Line in Sight
Even in the most lawful countries, there are foolish and corrupt judges, incompetent prosecutors, and opportunists. The pursuit of the ideal will never end.
Regarding our reforms, I am cautiously optimistic. The path of our slalom is marked—through Sejm resolutions, compliance with ECtHR and CJEU judgments, and cooperation with the Venice Commission. The Commission won’t tell us exactly what to do, which is a good thing. It can only outline the boundaries: what to do or avoid to stay within the approval of the ECtHR and CJEU.
“You must pocket your pride,” Łętowska told the experts, “even if you’ve created a project you’re proud of.”
Explaining Why Not Everything Can Be Changed
Aleksandra Kustra-Rogatka: It is, of course, a truism, but it must be said: restoring the rule of law is no simple task.
Even before the parliamentary majority changed, academics debated how to proceed. One group strongly supported a radical direction; the other advocated for nuance and an evolutionary path.
Today, we know the latter approach was chosen, and this is what we are discussing. Academics tend to focus on formal aspects, but as Prof. Łętowska mentioned, law is multi-layered. We must consider the rule of law broadly, incorporating its social and political elements, and find a way to communicate between them.
We Could Have Done More! There Were No Clear Goals
Krystian Markiewicz:Two years ago, a Supreme Court colleague told me, “We’ve done everything we could.” I believe that’s never the case—you can always do more. This year, too, not everything that could have been done was accomplished. If restoring the rule of law is like tacking, the question is always: in which direction and at what speed?
At the very beginning, we lacked clearly defined goals. There can be differing views on how to achieve those goals, but it was the goals themselves that posed the problem. Some clarity emerged three or four months ago, but it’s a pity this didn’t happen earlier.
KRS Is Thriving, While Disciplinary Prosecutors Continue Their Work
Markiewicz: Meanwhile, the National Council of the Judiciary (KRS) is thriving. Disciplinary prosecutors (appointed by Minister Ziobro) are still issuing charges against judges.
They are hosting conferences and thriving in their roles. The Chair of the KRS is submitting reports in both the Sejm and Senate. Changing this situation does not require legislative changes. The President is not an obstacle here.
While I appreciate the emphasis on the importance of dialogue, debates, and exchanging ideas, there comes a time when problems need to be resolved.
The Worsening Situation in Courts
Markiewicz: I am a judge, and I am still adjudicating. The situation in the courts is becoming increasingly difficult. There are no prospects for improvement. People are asking basic questions: will they have access to the courts, will their cases be resolved promptly, or will they face further delays?
For example, in one appellate court, there is a backlog of 6,000 cases awaiting hearings. As long as the Minister of Justice exercises administrative supervision over the courts, he bears responsibility for this.
The conclusion from what the Minister said is that the work he is doing is monumental. There is no doubt about that. But this raises a question: should one office really be handling all of this?
The Threat of a Judicial Reform Spiral
Maciej Nowicki: If we look at countries transitioning from soft authoritarianism, it’s evident that without a minimal level of consensus beyond political polarization, these processes often fail in the long term.
One major threat is what the literature refers to as a “judicial reform spiral.” One political side introduces changes, and the next reverses them. Argentina experienced this spiral, with endless judicial reforms. Fortunately, they eventually broke free from it. However, this remains a very serious risk.
What are the chances of overcoming political polarization? At the level of working with individual groups, depolarization efforts, however utopian they may seem, are essential.
The Difficult Relationship Between “Old” and “New” Judges
Nowicki: The relationship between “old” and “new” judges is extremely challenging. It is crucial to examine the minimum social, political, and psychological conditions necessary to initiate any form of dialogue here.
We are trying to build institutions that are independent—not only from the previous government but also from this one and any future government. I realize this is precariously close to utopia. But it seems to me that we have no other choice if we truly want to establish the foundations for a shared understanding of the rule of law as minimal rules of the game that everyone respects.
Minimizing the Risk of Future Instability
We must minimize the risk that someone new will come along, flip the table, and force us to start over again.
Bodnar’s Omissions: What He Didn’t Address
Nowicki: Let me point out what I felt was missing from Minister Bodnar’s presentation: clear assumptions addressing the fundamental problems we are facing.
The “Action Plan” submitted to the European Commission outlined legislative plans but didn’t address how we would deal with the status of neo-judges, their rulings, or Constitutional Tribunal decisions issued by duplicate panels.
There is too little substantive legal discussion in Poland on these crucial issues.
Too Little Legal Analysis on Key Questions
We have read abstract theoretical discussions on what constitutes a “nonexistent ruling” versus an “invalid ruling.” But now that these questions have practical implications, there is strikingly little meaningful discussion about them.
In terms of politics, the lack of clear assumptions is also problematic. This gap undermines communication.
Citizens Seek Clarity on Judicial Rulings
Nowicki:At the Helsinki Foundation, people come with questions like:
“Will my ruling, issued by a neo-judge, hold up?”
The answer is: we don’t know.
We must be honest about this uncertainty. But we must also be honest in saying that legal certainty—the predictability and stability of law—is just as important a principle of the rule of law as the right to an independent and lawfully constituted court. Most of these rulings will remain valid, and this point is not controversial among most legal experts.
Clear Communication Needed
This message needs to be communicated. Meanwhile, Minister Bodnar makes statements suggesting, for example, that the Supreme Court’s resolution does not exist. But we don’t know that for sure at this point.
Helsinki Foundation Suggests a Judicial Map
The Helsinki Foundation strongly encourages the creation of a judicial map of Poland: Which divisions have which judges? Only then can viable solutions be developed. For example, declaring that all neo-judges must return to their previously held positions could result in the collapse of the right to a timely trial.
Let me remind you that the Venice Commission explicitly stated that this must involve individual evaluation. Legislators will ultimately decide what happens to each group of judges.
Marta Kożuchowska-Warywoda: Data from the Ministry of Justice
Marta Kożuchowska-Warywoda (comment from the floor): I am a judge, but I currently serve as Director of the Department of Personnel and Organization of Common and Military Courts at the Ministry of Justice. We are continuously gathering this data. The Ministry’s personnel management programs are far more advanced and efficient than those used by court secretariats.
As of the end of October, we are talking about 3,142 individuals. Of these:
– 1,671 belong to the “green group”: Young judges who entered the process before the neo-NCJ approved their judicial exam results. These include judges, assistants, and registrars who are in a legal limbo.
– The “promotion group” includes about 1,133 individuals: Judges who need to regularize their status to avoid accusations of being neo-judges. If these individuals were to be entirely excluded from the system, it would dramatically impact case processing efficiency. We must find a solution to rescind these promotional nominations while allowing these judges to regularize their status. This is key for those who have not betrayed judicial values or participated in undermining the rule of law.
– The most problematic group comprises about 330 individuals: These are people who entered the judiciary through competitions organized by the improperly constituted neo-NCJ from outside the system. The challenge is how to evaluate and rehabilitate their status without leaving them entirely stranded if they did not actively undermine the rule of law.
Markiewicz: Neo-Judges Are Not Our Enemies
Markiewicz: Neo-judges are not our enemies. This involves about 3,000 judges—very different individuals who, in principle, will remain in the justice system. Many neo-judges are members of the association I lead. All of them are waiting for decisions: How much longer will we discuss this before taking action? This is what people are waiting for.
They care about whether, once they finally reach a verdict, that verdict will stand—or whether it will not. They care about how long they will wait for their first court hearing.
Kustra-Rogatka: The Schrödinger’s Cat of Institutions
Kustra-Rogatka: We are dealing with a Schrödinger’s cat scenario: an institution exists, yet it doesn’t. The NCJ operates, makes decisions, but we know it doesn’t exist—it’s just the politicized neo-NCJ.
How to Address This?
As an academic and expert, I can say: norms and standards are one thing, but political realities are another. People won’t always grasp this distinction. The only goal we can set is to create communication that explains this lack of coherence.
Depolarization as a Grassroots Process
Depolarizing society will be the hardest challenge. I believe it should be a grassroots, social process. However, perhaps we should draw inspiration from truth and reconciliation commissions or similar institutions designed to foster dialogue and empathetic understanding between opposing sides.
This article by Agnieszka Jędrzejczyk was published in OKO.press on December 1, 2024.