The plans for establishing new courts were made public by the Rzeczpospolita national daily, which described the assumptions of “the second phase of reform of the judiciary.” The first phase was the takeover of the National Council of the Judiciary, partial takeover of the Supreme Court, and replacement of Presidents of Courts with loyal judges.

The second phase will consist in the liquidation of courts of appeals, circuit courts and district courts. They will be replaced with new regional courts (to perform the functions of the present circuit courts and courts of appeals) and circuit courts (instead of the present district courts).

This course of events was hinted at last year. The elimination of courts of appeal was to be the final step in the takeover of the independent judiciary by the ruling party.

A review, or in other words, a purge

The new courts are in fact a massive reorganization providing Justice Minister Ziobro with a means of reviewing and replacing judges around the country. This is because judges will either be assigned to new courts or will be formally re-appointed to the bench.

There will no longer be circuit court judges or district court judges. All judges will have the same status, as common courts judges, and they will work on a rotating basis in circuit and regional courts. Their remuneration will depend on such factors as length of service.

To see how this reorganization looks in practice, it is enough to review the example of the public prosecutorial service, where the two highest rungs of the ladder were eliminated, and new ones were appointed. This facilitated a review of the prosecutors, and the defiant ones were stripped of their posts and degraded to the lowest level. The others chose to retire.

The same thing may happen in the courts. What’s more, there could be a “shortage” of available posts for independent justices in the “new courts,” and they will be offered an early retirement. If they insist on remaining and working as judges, they could be delegated to a distant court. Such distant courts could still be within their districts, as it cannot be excluded that the reorganization will involve a redrawing of the district boundaries. Both scenarios are possible under Article 180 of the Polish Constitution.

Judges may voluntarily leave the bench themselves, for the simple reason of not wishing to work in the new courts, or out of a feeling of professional degradation.

In this manner, the present government is seeking to dispose – without disciplinary procedures – of judges who today speak out in support of free courts, and of defiant judges who issue verdicts based on the law and their conscience, rather than seeking to satisfy the expectations of the ruling party.

The “social factor” – justices of the peace

 
That is not all. Ziobro’s ministry is also planning the introduction of another element of the so-called social factor. In 2018, this came in the form of lay judges being introduced into the Supreme Court.

In the common courts, this social factor will consist of justices of the peace. They would be competent to rule on misdemeanour cases, as well as some labour law and consumer law cases, which they would take over from judges.

The Ministry of Justice is proposing that those seeking to serve justices of the peace should be at least 35 years old, but they will not need to be lawyers. Life experience would be the only requirement. Appeals against their verdicts would be heard by a common court.

Justices of the peace would be chosen in county-wide elections. Candidates would be barred from belonging to a political party, but this does not mean that those cooperating with the Law and Justice party could not become justices of the peace.

Justices of the peace would rule on the actions of citizens who are today protesting against the current ruling party, for which the police are systematically harassing them by bringing charges. At present, professional judges are acquitting these citizens. Will justices of the peace in such verdicts also invoke human rights, the Constitution, international law? Will they continue to acquit those charged after attempting to block marches by right-wing extremist groups?

Councils over courts

Another aspect of the social factor in courts will be advisory councils attached to regional courts. As Rzeczpospolita reports, they are designed to increase oversight by the public over courts.

These councils will be composed of representatives of local communities selected by local self-government, judges, prosecutors, and members of “other legal professions.”

The council will be entitled to express opinions and submit reports concerning the functioning of courts within the entire region. This will include providing opinions on candidates for the position of judge, reviewing complaints filed by citizens, and demanding the initiation of disciplinary proceedings against judges.

The announcement of the proposal to form new courts by way of a leak to Rzeczpospolita, just two months before elections to the European Parliament, gives rise to a question: why is the Ministry of Justice signalling now that it wants to complete the process of assuming control over the entire Polish court system and the exchange of judges to install “their” loyalists?

Considering what Law and Justice has done in recent years, it is difficult to give credence to the notion of “reform.” At present, the ruling party is merely exchanging personnel.

A trial balloon?

The article in Rzeczpospolita may be nothing more than a trial balloon to judge the mood among public opinion. Indeed, it is difficult to imagine that, in a year during which elections will be held to the European Parliament and the Sejm, the government would engage in a potentially explosive confrontation over the courts. Citizens have demonstrated their desire for independent courts, taking to the streets to do so. The EU is also vocal about its stance regarding the Polish judiciary.

Furthermore, the issue of rule of law in Poland may impact the upcoming 2021-2027 EU budget. Initiating a total takeover of the common courts at this moment will harm Poland’s negotiating position. Perhaps, then, this is only a preview of what Law and Justice will do if they win the autumn elections to the Polish parliament.

It may, however, also be the case that Law and Justice is seeking to make the fight with the “judicial caste” one of its key themes in the election campaign. This will again see society encouraged to turn against judges, who are – similarly to the LGBT community – a potential target for harassment and a means of mobilizing voters loyal to the ruling party.

Today, this is speculation, but the plan for taking over the courts is a real one that has been the subject of discussion within the Ministry of Justice for months. The present ruling party has demonstrated that it will not tolerate independent judges.

Disciplinary spokespersons appointed by Ziobro are going after them. But the judges are not afraid. They are more united than ever before, defending their independence and handing down rulings that the authorities are not always happy with.

However, the Law and Justice party does need the courts. This is the last large public institution that the authorities have not yet brought under their control. And the courts are supposed to rubber-stamp whatever the prosecutorial service brings to them from Zbigniew Ziobro and his allies.

The plan for liquidating courts of appeal would perhaps already be carried out, if not for the breakdown of the offensive against the Supreme Court last year.

The intentions of Ziobro’s ministry, which speaks in official language about “reform” and “courts closer to the people,” can be understood by a tweet sent out by the troll account @KastaWatch on Twitter: “This will be the beginning of the end of the CASTE. We can already hear the moaning and tears from the judges on their high horses.”

The activity of this account has been described by OKO.press in recent articles. All signs point to the authors of its messages as having informants inside the Ministry of Justice.

[translated by Matthew La Fontaine]