Dismantlement of the judicial system

Joanna Maria Stolarek: How is the rule of law doing in Poland now?

Sylwia Gregorczyk-Abram: The rule of law is being dismantled in Poland, and I am afraid that it will be destroyed completely if the democratic opposition loses the upcoming elections. It is now being dismantled on several levels. Firstly, the Constitutional Tribunal, the most important court for any country, has turned its back on the citizens. An institution that should be a shield offering citizens protection from the state authorities has become an ally of the state. It has unlawfully appointed judges to positions which had already been taken. With regard to these appointments, we already have the ruling of the European Court of Human Rights in the Xero Flor case, which states that judges appointed in this way do not guarantee a citizen access to an impartial court established by law. Therefore, these persons simply should not be there in the Constitutional Court. In addition, the rulings of the Constitutional Tribunal clearly show that it is a body following an exclusively political agenda, the most glaring and most painful example of which was the ruling on abortion that deprived women of the right to decide for themselves. This ruling was issued de facto on the 'orders' of the government.

Secondly, there have been significant changes in the way judges are appointed. Poland has a constitutional body, the National Council of the Judiciary, which elects judges and promotes them to higher positions. According to the Constitution, before 2017 the general assemblies of judges elected some of the members of this Council. The law was later amended in contravention of the Constitution and now the election of the members of the Council is exclusively up to the Sejm, the lower house of the Polish Parliament, and therefore to politicians, which of course contradicts the principle of the separation of powers and results in politicians electing loyal and like-minded judges who will implement the agenda of the ruling party and impose its vision of the judiciary. There are already a number of rulings of the Court of Justice of the European Union and the European Court of Human Rights regarding the Polish National Council of the Judiciary. Both courts agree that the current procedure of appointing members of the Council compromises the balance of powers since the legislature and the executive have an undue influence on this process, so the judiciary has ceased to function as an independent power. In this situation, it is the citizens who lose the most. When they go to court and are handed down a ruling from unlawfully appointed people commonly referred to by lawyers as neo-judges, they cannot know whether the verdict is valid. If a neo-judge appears on a panel of judges, the attorneys representing the parties in the proceedings, in line with their professional skills and duty to protect their clients, will naturally file motions for his or her exclusion or, if the neo-judge in question has already handed down a judgment, formulate their grounds of appeal or cassation on this basis. In any case, the citizens end up losing because a ruling delivered by an unlawfully appointed neo-judge results in enormous chaos.

The third dimension are, of course, public prosecutors, who are now absolutely dependent on the government and politicised. Poland has seen the merger of the functions of Public Prosecutor General and Minister of Justice. This is a change that has had a destructive effect on the work of public prosecutors. Given the extent to which and the way in which the judiciary has been dismantled, this merger means just one person influences the functioning of the entire justice system. He makes all the decisions while public prosecutors are no longer on the side of the citizens and instead pursue the political agenda of the government. Prosecution of any abuse of power by the government and protection of minorities such as the LGBTQ+ community or refugees are out of the question since public prosecutors will simply refuse to initiate any proceedings which would not be approved of by the individual who is both the Minister of Justice and the Public Prosecutor General. In addition, an important element in the destruction of the judiciary in Poland is the disciplinary regime for judges. A Disciplinary Chamber was created in the Supreme Court, which is in fact a special disciplinary court established to waive judges’ immunity in order to prosecute and punish them on disciplinary grounds. This happened to Judge Igor Tuleya, for instance. We also have judges who have been transferred to another court division or suspended as punishment for respecting the rulings of the European courts. This is the case when judges want to implement a judgment concerning, for example, the new National Council of the Judiciary and refuse, for instance, to deliver rulings together with neo-judges, whose appointment procedure was dubious, because they believe that this is better for the citizens and the proceedings since otherwise a citizen who goes to court has no guarantee that their case will be examined by a real court composed of duly appointed judges. These are not merely isolated cases. The chilling effect on judges is very significant. Both the European Court of Human Rights and the Court of Justice of the European Union have delivered very clear rulings regarding the establishment and the functioning of the Disciplinary Chamber. A penalty of one million euros a day was imposed on Poland because it refused to suspend its operation. Recently, this chamber has seemingly been dissolved, but in fact a new body has been set up, composed of the so-called neo-judges, i.e. persons elected by a political body, namely the Polish National Council of the Judiciary. In the Supreme Court, the Chamber of Extraordinary Control and Public Affairs has been created. It is a very important chamber for the Polish political system as it will ultimately decide whether or not the elections in Poland are valid. There are also a number of rulings delivered by both the Court of Justice of the European Union and the European Court of Human Rights stating that the Chamber of Extraordinary Control and Public Affairs was established in a flawed way and does not guarantee the parties in court proceedings access to an impartial court established by law.

Given the situation you have just outlined, is Poland still a country governed by the rule of law? Are free elections on 15 October still possible in Poland given the newly established Chamber of Extraordinary Control and Public Affairs?

Systemically, on paper, Poland is not a country governed by the rule of law, as all the constitutional circuit breakers have already been bypassed. The treaties of the European Union and the European Convention on Human Rights have repeatedly been violated, as has the Polish Constitution. Still, I believe that Poland is a state governed by the rule of law in its internal dimension, that of judicial independence. In the current situation, the majority of Polish judges are strong and resist the pressure. They deliver rulings in defiance of the government and protect the citizens – not all of them, of course, but when faced with such a ‘test’, they pass it in most cases. In this sense, Poland is governed by the rule of law, because these judges are a particularly important element in the functioning of the current justice system. The justice system is now based on these judges, on their courage and heroism.

Are free elections possible in Poland? Free and, above all, equal elections are impossible in Poland. The OSCE is currently carrying out a special mission in the country. Its delegation is here not just because OSCE representatives always monitor elections but also because the European Parliament passed a resolution establishing a special OSCE mission in Poland. It did so for a number of reasons. Firstly, OSCE observers concluded that the last presidential elections in Poland were not equal. This conclusion was primarily due to the actions of public television, which only supported the government side and did so with huge financial resources. The inequality also manifested itself in the fact that the president supported a particular side of the political landscape. Even though this may seem obvious, highlighting it on TV makes this inequality even greater. The OSCE also came to Poland because of the Pegasus spy system, which was used against opposition party politicians in the run-up to the previous parliamentary elections. It is known today that the head of the election campaign of the largest opposition party had an extremely invasive spying system installed on his phone, which not only records conversations but also downloads data, eavesdrops on telephone conversations and even changes and modifies data. Such eavesdropping in the run-up to the elections is a clear signal to organisations such as the OSCE and the European Parliament that very strange things can happen in Poland again. Hence, this enhanced mission.

Two things can happen on 15 October. The ruling party will remain in power or the opposition parties will take over. In the case of the latter, will the new government be able to repair the rule of law while remaining true to its values?

Opposition politicians understand that the issue of the rule of law is crucial and that steps to rebuild the rule of law must be taken immediately. These changes must be implemented quickly and, of course, legally. The rulings I have already mentioned, of which there are already dozens, are a very big help. They provide an entire roadmap for rebuilding the justice system. To restore the rule of law, these rulings simply have to be implemented. There are always some temptations, as every government wants to have control over the courts and thus gain control over the citizens. However, if a new democratic government has such temptations, then of course all civil society organisations will raise the alarm, just as they are doing now. Based on the current situation, there no signs that such a development is likely. All statements made in this regard so far have been constructive, referring to steps being taken quickly, the functioning of the justice system being put in order, and respect for the law and the EU. So far, the democratic opposition has sent no signals that give rise to any concerns. We hope this situation will not change.

And what will happen to the judiciary if the Law and Justice party remains in power?

We know what is going to happen because Mr Kaczyński, the Law and Justice leader, has already announced it. He is talking openly about closing any gaps in the system and doing some more tidying up, which probably means flattening the court structure, i.e. reorganising the judiciary. This means that the government will be able make new arrangements from scratch and assign its own people to the various courts at different levels. The Law and Justice party maintains that if courts are to be reorganized, judges can be transferred between different courts without their consent. Thus, it will be possible to punish judges by transferring them to courts located far away from their places of residence. Moreover, the reorganisation may involve all judges being forced to go through a procedure within the new National Council of the Judiciary so that they are 'infected' with its legal flaws. Some of the most courageous judges who are most attached to the letter of the law will simply refuse and, for example, retire because they cannot even imagine being subject to a procedure conducted by this body. They will consider their commitment to the law more important and, in consequence, we will lose the most valuable judges, just as we did in 2018, when an attack was launched on the Supreme Court by lowering the retirement age of judges. At that time, judges were forced to ask permission from the National Council of the Judiciary to continue to serve as Supreme Court judges. As it was inconceivable for excellent lawyers, professors, and renowned and highly respected experts to ask an unconstitutional body for permission to continue with their work, they decided to retire. As a result, we lost dozens of the best judges who could still examine citizens' cases. A similar process may take place in the case of the reorganization that has been announced. I do not know what it will look like in detail, but some announcements have already been made.

It looks like Poland is moving further and further away from the legal system of the European Union but also from certain values, from the very foundations of the European Union. One could call this process a legal Polexit.

I think that the Polexit has already happened on a mental level, because those rulings delivered by the Constitutional Tribunal which directly contradict EU law already constitute a Polexit in a sense. However, if the Law and Justice party wins the elections, this problem will certainly deepen, and I do not rule out the possibility of a formal Polexit.

And how is all this perceived by ordinary people in Poland? Law and the functioning of the judiciary are very abstract concepts. Do average people realise what is happening to the judiciary, to the legal system in Poland?

It seems to me that the average citizen may be confused, as it is difficult even for lawyers, let alone citizens, to keep up with all these changes. I think this rapid pace of change is designed to create so much chaos that citizens cannot understand just how difficult the situation really is. The so-called ruling delivered by the Constitutional Tribunal on the right to abortion has given citizens a bit of food for thought, as it has made it clear what happens when politicians decide who will be a judge. It was a painful lesson but an easy one to grasp. I think it was a ruling which made many people understand that this is not an abstract issue. Also, if a citizen has a case in court, they can certainly feel it. There are many neo-judges and citizens must be afraid that if their case is decided by an illegal judge, the ruling will simply be questioned. As demonstrated by different studies, trust in judges and public prosecutors is on the decline.

But that trust was low even before 2015, wasn’t it?

Back then, citizens saw the need for real reform of the judiciary and they were absolutely right. The Polish judiciary needed to be fixed. However, the Law and Justice party, in promising such reform, simply lied to them. The changes introduced by the government have not made the justice system function more efficiently. On the contrary, proceedings now take longer, and there is chaos in the courts. The principle of the separation of powers has been violated. And it is the citizens who lose the most.