Night-time attack on the independence of the courts in Poland

A bill appeared on the Sejm’s website during the night of 12–13 December, prohibiting judges from doing anything that is not in line with the Law and Justice party’s (PiS’) thoughts.

It introduces the whims of Ziobro’s Justice Ministry and Julia Przyłębska’s Constitutional Tribunal – instead of the Constitution and European law. Fear of PiS – instead of judicial dignity. This is how Poland is to be if this bill is enacted.

Publikujemy teksty po angielsku o praworządności w Polsce, aby pełna informacja o sytuacji w naszym kraju docierała do czytelników i czytelniczek za granicą. Udostępnij znajomym mieszkającym poza Polską. #RuleOfLawPL

Dziś angielska wersja tekstu "Nocny zamach PiS na niezależność sądów i atak na wyrok TSUE. Projekt ustawy punkt po punkcie". Marcin Jałoszewski szczegółowo analizuje w nim projekt zmian uderzających w sędziów i prokuratorów.

The act, which subordinates the judges to Zbigniew Ziobro’s Justice Ministry is the governing party’s response to the recent judgment of the Court of Justice of the European Union, which gave the green light to Polish judges to assess the legality of the unconstitutionally appointed new National Council of Judiciary (NCJ) and Disciplinary Chamber of the Supreme Court. Both bodies are an important element of the current authority’s activities intended to suppress the independence of the courts.

After the judgment of the CJEU and even before it, the judges started to examine the legality of the new NCJ, which mainly consists of judges who previously worked with Minister Zbigniew Ziobro’s Justice Ministry. They encountered rapid repression for this in the form of disciplinary activities. The targets were judges from Kraków and Katowice, as well as Judge Paweł Juszczyszyn from Olsztyn.

Simultaneously, PiS also wants to use this Act to sanction the changes it is introducing in the justice administration. Draconian punishments, including removal from the profession, will be applied for challenging them.

All this is included in the bill submitted by a group of Law and Justice MPs to the Sejm and posted on the Sejm website on Thursday, 12 December just before 10 p.m. The bill constitutes an amendment to the ‘Act on the Structure of Ordinary Courts, the Act on the Supreme Court and certain other Acts’ (link to the bill in Polish).

Ryszard Terlecki, head of the PiS club, Deputy Minister of Justice Sebastian Kaleta and former spokesperson of Zbigniew Ziobro’s ministry, Jan Kanthak, are among the authors of the bill.

The new penalties are intended to intimidate and scare away

The most serious amendments are the introduction of severe sanctions for judges for defending the independence of the judiciary. PiS wants to use penalties to silence not only judges of the ordinary courts, but also judges of the Supreme Court and prosecutors.

The Law and Justice MPs want to add the following to the list of offences of ordinary court (namely district, regional and appellate court) judges, for which they are to be liable for disciplinary reasons:

– The refusal to apply a provision of an Act if its non-compliance with the Constitution or an international agreement has not been confirmed by the Constitutional Tribunal.

PiS wants to force judges not to assess the conformity of the laws passed by the current authority on their own or through legal questions to the Supreme Court or the CJEU, with the Constitution or European law, under the threat of a penalty.

This is because, in the justification of the bill, PiS gives primacy in this matter to the Constitutional Tribunal, which is under the control of the judges referred there by PiS.

– Acts or omissions that can prevent or significantly impede the functioning of the justice administration.

This is a gateway to pressing disciplinary charges on defiant judges for defending free courts. What an ‘impeding activity’ is will be defined by disciplinary commissioners appointed by Ziobro. These may be, for instance, resolutions of a judicial association.

– Acts questioning the existence of a judge’s office or the effectiveness of his appointment.

This is to stop the examination of the legality of the neo-NCJ by judges and their performance of the CJEU judgment, which requires them to examine whether a judge adjudicating in a given matter has been correctly appointed.

In the justification of the bill, the PiS deputies write that, when appointing judges, the president has the last word and nobody has the right to challenge his decisions, even if there were shortcomings in the appointment of the judges.

– Acts of a political nature.

This is a wide gateway to disciplinary proceedings for judges for publicly defending the judiciary. This may discourage them from meeting with citizens. This can also be a way of silencing associations of judges, including Iustitia and Themis.

Up to removal from the profession, inclusive

The bill provides for a penalty of a transfer to another position or removal from the profession for breaching the new disciplinary regulations. Meanwhile, a new fine is being introduced for more minor ‘infringements’ at a level of the judge’s monthly salary.

The new regulations threaten judges who question ‘the authority of the courts and tribunals, the state’s constitutional bodies and bodies of state control and protection’ with penalties.

These regulations and the new disciplinary regulations also apply to the Supreme Court judges, prosecutors, military judges and, to a limited extent, supreme administrative court judges.

The Chamber of Control can do anything

PiS is adding further provisions to this, which increase the powers of the new Chamber of Extraordinary Control and Public Affairs that was formed by PiS, at the expense of the old Chambers of the Supreme Court.

The Chamber of Control is receiving cases regarding the independence and impartiality of a judge on exclusive terms. Its resolutions are to be binding on the remaining Chambers of the Supreme Court. However, it is not itself bound by the resolutions of the other Chambers.

Meanwhile, motions to remove judges because of objections as to their legality are not to be considered. This is a blow to the old Supreme Court and an attempt to block all decisions challenging the status of the new NCJ and the Disciplinary Chamber.

The Supreme Administrative Court will not be able to challenge the legality of the new NCJ. PiS is making changes to the regulations on the administrative judiciary for the first time, because these courts are also involving themselves in defending the independence of the judiciary. This is also a result of them contesting the decision of the Verification Commission appointed by PiS to examine reprivatisation in Warsaw.

Judges are to disclose their activities in the Internet and associations

Another blow is that of the regulations that restrict the right to associate in associations in practice and the right to speak in a public debate on the justice administration.

Judges and prosecutors will need to make declarations in which they disclose:

• which associations and foundations they belong to, what functions they perform in them and for how long;
• which parties did they belonged to before being appointed judge, especially before 1989;
• on which portals, websites or public service portals they have accounts from which they can add comments.

This also applies to anonymous accounts and accounts under a nickname. The judges are to give the names of these portals and the nicknames under which they make their comments. These declarations will go to the minister of justice and will be published in the Public Information Bulletin.

The authors of the bill that was submitted explain this by the need for citizens to have greater knowledge about the judges who are handling their cases.

This is a blow to judges who comment on the current government’s activities in the Internet. Knowledge about who is active in associations and in the Internet can be used against judges to undermine their impartiality and discourage criticism of the current authority. It will also be helpful to Minister Ziobro’s disciplinary commissioners to initiate disciplinary proceedings.

In this way, PiS will also find out who belongs to the associations of judges that are critical of Minister Ziobro, in particular Iustitia and Themis. This knowledge can be used to harass and repress these judges.

The requirement to make such declarations has also been imposed on prosecutors, which will strike at the independent prosecutors from the Lex Super Omnia association, headed by Krzysztof Parchimowicz.

PiS dissolves the boards of the courts

An important change is the dissolution of the boards at the appellate and regional courts. The court presidents and judges elected by the community of judges are their members. The boards are the advisory and opinion-giving bodies of the courts.

PiS wants to dissolve them because the independent judges have introduced their representatives to the boards and have commented there on the activities of the presidents of the courts appointed by PiS and the current authority’s ‘reforms’ in the courts. They have also given their opinions on judges – often negatively – to promotions handed out by the new NCJ. And later, they refrained from giving opinions on candidates because of reservations about the legality of the new NCJ.

The boards also took critical stances on the new authority. This did not please Zbigniew Ziobro’s ministry and his supporters in the courts. This is why the current boards will be dissolved and replaced by new ones in which the presidents of courts, often appointed by Minister Ziobro, will be members.

For example, instead of judges, the board at the appellate court will consist of the president of the appellate court and the presidents of the regional courts subordinated to him. The PiS MPs argue that this will improve the management of the courts.

Attack on the association of judges

The bill also restricts the judicial association, namely the general assemblies of judges. PiS wants every judge to be able to attend the assembly and not just court delegates, as has been the case to date. However, it separates judges into assemblies of the appellate, regional and district courts. Now, judges at all levels will meet together, which facilitates exchanges of opinions.

The PiS MPs also want to restrict the say of the assemblies and boards. The bill provides for a ban on deliberating on ‘political matters; in particular, the passage of resolutions expressing hostility to other authorities of Poland and its constitutional bodies, as well as criticism of the basic principles of the political system of the Republic of Poland, is prohibited.’

Article 9d. Political matters cannot constitute the subject matter of the deliberations of the board and judicial association; in particular, the passage of resolutions expressing hostility to other authorities of the Republic of Poland and its constitutional bodies, as well as criticism of the basic principles of the political system of the Republic of Poland, is prohibited.

This is another provision which has the objective of silencing judges. This is because assemblies of judges frequently passed resolutions criticising the justice ministry, the new NCJ, the Disciplinary Chamber, and the ‘reforms’ of the courts.

The resolutions also helped consolidate the community of judges throughout Poland in defence of the free courts and were an important sign for citizens. It can be assumed that the breach of such a ban by judges will result in disciplinary action, especially as the bill assumes that judges at the assemblies are supposed to vote by name. This will make it easier for the disciplinary commissioner to find the rebellious judges.

PiS also wants to marginalise the powers of the assemblies. The new bill does not provide that they will give their opinions on the candidates for the judicial nominations of the new NCJ. The opinions are being transferred to the boards. At most, judges will be able to elect their delegates for the meetings of the boards on the nominations.

This provision is intended to be a way of silencing the assemblies, because they refused to give opinions on candidates for judicial promotions for the new NCJ because they contested its legality.

Disciplinary commissioners can do anything

The bill increases the powers of the disciplinary commissioners of the ordinary court judges appointed by Minister of Justice Zbigniew Ziobro. Namely Piotr Schab and his deputies, Przemysław Radzik and Michał Lasota.

They are to receive the right to handle disciplinary proceedings in every case regarding a judge. Judges have so far taken the stance that the regulations do not allow them to prosecute judges of district and regional courts. They also refused to attend hearings for this reason.

Therefore, the introduction of the new regulations confirms that the doubts of the judges were justified. Apart from the fact that they will be able to prosecute all judges, Ziobro’s disciplinary commissioners will also be able to impose penalties on them of up to PLN 3,000 for not appearing at the hearing.

Furthermore, Piotr Schab and his deputies received the right to appoint disciplinary commissioners operating at the courts. This is important because these disciplinary commissioners often did not want to prosecute independent judges for defending the free courts. As a result Schab, Radzik and Lasota received the right to choose more submissive commissioners.

Why the rush

Furthermore, the PiS MPs propose to introduce regulations in the bill that was submitted, which:

• are to ensure the ‘faster’ election of the new president of the Supreme Court, who will replace the current president of the Supreme Court, Małgorzata Gersdorf, whose term of office ends in the spring of 2020. The bill assumes, among other things, that every Supreme Court judge will be able to nominate a candidate to the post of president;
• limit the autonomy of the Supreme Administrative Court – the president will now specify the rules of operation of that court;
• limit the ability of judges to appeal against the resolutions of the new NCJ regarding judicial promotions.

In practice, this will mean that, even if someone is appointed by the president despite the shortcomings in the process of nomination by the new NCJ, nobody will be able to contest the president’s decision.

These regulations are a result of the appeals of judges against the resolutions of the NCJ, which gave nominations primarily to ‘its’ judges. These resolutions were challenged by the Extraordinary Control and Public Affairs Chamber established by PiS. In this way, the nomination for, among others, the deputy disciplinary commissioner, Michał Lasota, who was applying for promotion to the regional court in Elbląg, was cancelled. We wrote about this in OKO.press.

PiS is hurrying with the bill that disciplines judges. It wants it to become effective 7 days after its publication in the Journal of Laws. Obviously, it needs to be passed earlier by the Sejm and accepted by the Senate, in which the opposition has a majority, and the president needs to sign it.

Łętowska: This is the route to Polexit

‘The authors of the bill certainly know that it is unconstitutional and undemocratically offensive. It is supposed to silence the judges, it prohibits criticism of the authorities, as in the People’s Republic of Poland,’ wrote Prof. Ewa Łętowska.

She reiterates that paragraph 124 of the CJEU judgment of 19 November 2019 mentions the need to ensure the independence of the courts from the legislature and the executive; and paragraph 125 states that judges are to be protected from external intervention or pressure liable to jeopardise their independence.

‘The bill is moving demonstratively in the opposite direction, despite the requirements of Article 4(3) of the TEU, which provides that “The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.”

Polexit is being implemented precisely now at the level of the standard of impartiality of judges and the independence of the courts,’ warns Prof. Łętowska.

Translated by Roman Wojtasz. The translation originally appeared at Rule of Law in Poland.