ARTICLE The Rule of Law in Poland Stanislaw Biernat Prof. S. Biernat is Professor of European Law, Jagiellonian University, Cracow; Retired judge of the Constitutional Tribunal of Poland; Vice-president of the Tribunal from 2010 to 2017. The problems covered by today s conference are significant and multi-faceted. Quite a lot has been said and written about developments in Poland over the past two years, in the constitutional and European contexts. However, there have been major new developments in recent months and even weeks. In my contribution, I would first like to present, in a nutshell, the changes to the judiciary which have been introduced within the Polish legal order and which raise particular concerns in the context of the rule of law. I will then briefly describe the measures taken by EU institutions and other European bodies in response to developments in Poland, as well as the reaction of the Polish authorities to these measures. In my conclusions, I will mention the most recent developments and will attempt to address them. Furthermore, in the course of my deliberations I will also draw on the analysis made by other observers of the constitutional crisis in Poland. Let me remark at the outset that until mid-2017 I was a judge and vice-president of the Polish Constitutional Tribunal and, necessarily, I have not been an external observer but instead an active participant in certain developments described here. Systemic changes: a constitutional crisis in stages I would like to start with a brief outline of the systemic changes which have occurred in Poland since the end of 2015. Various attempts have been made to describe and categorise these systemic changes. Wojciech Sadurski analyses this question in detail and proposes the formula that it is an anti-constitutional populist backsliding. 1 Jaroslaw Kaczynski, the PiS chairman and de facto the country s highest authority, declared a crusade against Polish courts and judges. I fully agree with an observation of Mateusz Manzini that, practically since the day of the victory by the Law and Justice party (PiS) in the parliamentary elections of October 2015, Jaroslaw Kaczynski, the PiS chairman and de facto the country s highest authority, declared a crusade against Polish courts and judges. Labelling them a caste, a clique held together by a network of close-knit, corrupted links, Kaczynski saw them as a relic of the past, a residue of the post-communist realm, ill-suited to and standing in the way of his grand
project of a new, mighty, great Poland. The PiS leader is not only aiming to completely reshuffle the personal composition of the courts; his true enemy is the very principle of the rule of law. 2 The propaganda in public media subordinated to the government is deceitful and does not differ from the propaganda of the Communist times. The arguments therein are more or less as follows: the Law and Justice party won the democratic elections and has a parliamentary majority. Hence, it represents the political nation and can change the law. The will and the interest of the nation are above the law. The Constitution is not being breached. Furthermore, the Constitution is a post-communist one and needs to be replaced. Democracy and the separation of powers have not been contravened and have actually been enhanced. The opposition parties and other opponents of those currently in power are the elites (which is meant to be an offensive term) and beneficiaries of the old order, defending their privileges. Expressing critical views about the situation in Poland abroad or within the EU, and in particular calling on the EU to take measures against Poland, amounts to treason. What I am doing now in Leiden would be probably also be labelled as treason! In the opinion of the current authorities, the previous Constitutional Tribunal supposedly served the opposition in the struggle against the government and would block reforms, e.g. by preventing the award of new social allowances to families with children. Because of that, its composition had to be changed. The Supreme Court is a post-communist one. The common courts operate slowly and judges are dishonest. I agree with many observers 3 who divide the constitutional crisis into stages. The first stage, which started in November 2015, consisted in refusing to swear in the previously elected judges to the Constitutional Tribunal, cancelling the earlier appointments of five judges and packing the Tribunal with new judges, as well as a series of attempts to commandeer the Constitutional Tribunal by enacting six bills intended to paralyse its operations and refusing to publish critical Constitutional Tribunal rulings. This first stage ended in December 2016, when the new head of the Tribunal was appointed by the President of the Republic, contrary to the Constitution and statute law. I agree with the assessment of the observers that the commandeering of the Constitutional Tribunal allowed the PiS government not only to remove an obstacle to promoting their often-unconstitutional policies, but also to actively use the Constitutional Tribunal for political ends in 2017 as well. The destruction of the Constitutional Tribunal, leading to the loss of the authority required to perform constitutional functions, has deprived the courts and citizens of an arbitrator for objectively assessing the actions of the political authorities targeted at the judiciary as well as at constitutional rights and freedoms. The second stage of the crisis came at the beginning of 2017 and consisted in giving the President and the Minister of Justice huge influence over the presidents who head the work of the common courts, commandeering the Supreme Court and taking over the National Council of the Judiciary. The new Supreme Court Act of 2017 is harmful because of its numerous unconstitutional provisions. The new Supreme Court Act of 2017 is harmful because of its numerous unconstitutional provisions. This act sets the retirement age for judges at 65 years. On reaching this age, a judge leaves his or her office unless the President agrees that he or she may continue to serve. In effect, about 40% of Supreme Court judges will lose their positions within a short period of time. This includes the President of the Supreme Court, whose six-year term of office, which is explicitly enshrined in the Constitution (Article 183), was thereby shortened. Article 183 1. The Supreme Court shall exercise supervision over common and military courts regarding judgments.
2. The Supreme Court shall also perform other activities specified in the Constitution and statutes. 3. The First President of the Supreme Court shall be appointed by the President of the Republic for a 6-year term of office from amongst candidates proposed by the General Assembly of the Judges of the Supreme Court. Another new development that raises serious concerns is the recent establishment of the Chamber of Extraordinary Control and Public Affairs in the Supreme Court, which will have the power to decide for instance on the validity of all elections, as well as referenda. With members of this Chamber proposed by the new politically appointed National Council of the Judiciary, the Chamber poses a threat to the foundations of democracy because there will be no effective mechanisms to ensure unbiased oversight of the legality of future Polish elections. There are also serious concerns about changes to disciplinary proceedings against judges. The National Council of the Judiciary is a very important body. It is enshrined in the constitution and is responsible for preserving the autonomy of Poland s courts and the independence of its judiciary. Its main power is to nominate candidates for appointment as new judges and to give opinions regarding the promotion of current judges. Until 2017 the National Council of the Judiciary was composed in a manner intended to ensure cooperation between the legislative, executive, and judicial branches, in accordance with the principle of checks and balances provided for in the Constitution. Fifteen judges members of the Council were elected by gatherings of judges. The new National Council of the Judiciary Act of 2017 prepared the ground for taking over the Council by transferring the power to appoint 15 judges as members of the Council from the judiciary to the legislature. This was a flagrant upsetting of the balance of power between the judiciary and the legislature, in which PiS has a majority. In response, the judicial associations and the opposition parties called on judges to boycott the appointments to the new National Council of the Judiciary. The call was a success: out of 10,000 Polish judges, only 18 agreed to stand for appointment to the 15 seats in the new Council. The vast majority of new members of the NCJ are directly or indirectly connected with the Minister of Justice. The changes introduced in Poland weaken the systemic position of judges and ignore the principle of independence of the judiciary. The changes introduced in Poland over the past two years breach the guarantees of judicial independence of the common courts. They weaken the systemic position of judges and ignore the principle of independence of the judiciary. The Minister of Justice has now been arbitrarily appointing and dismissing court presidents and vice-presidents (almost 150 persons) for six months. In this way the Minister of Justice has gained indirect influence over the judges. The administrative supervision of the Minister of Justice over the courts has been strengthened considerably. The Minister has been granted the discretionary power to consent to the later retirement of judges. Under a new statutory proposal put forward in March this year, however, an equal retirement age (65) will be restored for female and male judges and the power to prolong judges service will be given to the President rather than the Minister of Justice. I agree with Marcin Matczak that the commandeering of the Constitutional Tribunal, the Supreme Court and the National Council of the Judiciary of Poland displays two characteristics familiar to those who study authoritarian systems. First, it demonstrates a preference for mediocre appointments, the choice of secondrate actors to play starring roles. Second, the appointments represent a phenomenon known as the hollowing out of institutions responsible for protecting the rule of law. When the core of those institutions, which is independence, is removed, they become useful props for the ruling powers to move about the stage in a purely theatrical show of legitimacy. 4
The European response Various European bodies have reacted to developments in Poland. The first to respond was the Venice Commission, which was invited in December 2015 by the Polish government, unfortunately for the latter, as it later transpired, to analyse the new statutes on the Constitutional Tribunal. The Venice Commission visited Poland in February 2016 and was received with honours by Poland s top politicians. A month later, however, it issued an opinion about the CT which was damning for the authorities. Then the Venice Commission issued its further opinions: in June 2016 on the Act on the Police, in October 2016 on another Act on the Constitutional Tribunal, and in December 2017 on the Act on the Public Prosecutor s Office and acts on the judiciary. 5 As regards EU institutions, an essential role has been played by the European Commission, which has been dealing with the escalating constitutional crisis in Poland since the end of 2015. As regards EU institutions, an essential role has been played by the European Commission, which has been dealing with the escalating constitutional crisis in Poland since the end of 2015. The following year, it launched proceedings under the Communication of 2014. 6 The Commission has been engaging in an intensive dialogue with Polish authorities in various forms and at various levels. Clearly, I do not know the details of these contacts, even though I was consulted many times by the Commission as a representative of the CT, but not by the Polish government, which ignored and disrespected the Tribunal. During that procedure, the Commission issued four recommendations. The Commission was particularly active in December 2017 and took decisive measures in three respects. First, it proposed that the Council should initiate the procedure under Article 7 Treaty on European Union (TEU). 7 Second, it issued its fourth recommendation. 8 Third, it announced that the matter would be brought before the Court of Justice under Article 258 Treaty on the Functioning of the European Union (TFEU). Due to the constraints of this contribution, I will not be discussing these measures in detail, but will instead limit myself to several observations. As we know, the procedure under Article 7(1) TEU has now been launched for the first time in EU s history. The Commission concluded in its comprehensive reasoned proposal that there is a clear risk of a serious breach by Poland of the values referred to in Article 2. The fourth recommendation, being a follow-up of the procedure due to the communication of 2014, summarised the allegations and postulations that had already been formulated and added new ones. One could raise certain concerns from a legal perspective. Indeed, the Commission s procedure was intended to precede and be a condition for the opening of the procedure under Article 7, whilst after December 2017 both these procedures were to be conducted in parallel for some time at least. The rationale for such an option was the intention to give the Polish authorities another chance to pull back from taking further measures to destroy the Constitutional Tribunal and the judiciary. The Commission made such a response from Poland a condition for withdrawing its proposal to the Council. Finally, the matter to be brought before the CJEU under Article 258 TFEU would be violations of EU law in the Common Courts Act, that is the introduction of different retirement ages for female and male judges and the granting to the Minister of Justice of the power to decide about extending a judge s term of office after the newly reduced retirement age has been reached. The scope of the matter to be brought before the Court was therefore set rather narrowly. In the recent legislative acts, these strongly criticised provisions have been amended. Therefore I cannot exclude the possibility that the case will be withdrawn from the CJEU. The crisis in Poland was also considered by the European Parliament, which issued several recommendations. Outside the European Union, critical opinions about developments in Poland were voiced by various other bodies, e.g. the United Nations Human Rights Committee, whose delegation visited Poland in October 2017, and European associations of courts including the supreme courts.
Just reforms of the judiciary? I would now like to summarise Poland s response to criticisms of its policy. Let me begin with the statement which should essentially conclude my analysis: practically all of the measures described above, both in and outside of Poland, have proven to be ineffective. The Polish authorities have not changed the statutes which are contrary to the Constitution and which destroy the CT and the judiciary; they have not published the missing judgments of the CT; and they have not withdrawn the unconstitutional changes to the organisation and composition of the Supreme Court, common courts or the National Council of the Judiciary. The amendments to the statutes on the judiciary announced at the end of March are minor ones and are in fact intended as propaganda measures for the benefit of the Commission and the Council. In particular, these amendments cannot reverse the grave breaches of the rule of law which have occurred to date, such as the mass-scale replacement of court presidents or the damage done to the Constitutional Tribunal. Practically all of the measures, both in and outside of Poland, have proven to be ineffective. The Polish authorities have not changed the statutes which are contrary to the Constitution. Outside Poland, the authorities have argued that the reforms being made in Poland are not in breach of the Constitution or the provisions of European law. According to them, the criticism of Poland has supposedly been based on incomplete knowledge of what is going on in the country and has been influenced by the opposition, which is hostile to the democratically elected authorities. They argue that each state has the right to reform its judiciary, and that the changes introduced in Poland do not differ from the solutions applied elsewhere, e.g. as regards the appointment of judges by the executive. In addition, in their dealings with the European Commission, the Polish authorities have played for time by submitting elaborations which did not contain anything new. An example is the White Paper sent to the Commission and the Member States in March as part of Poland s response to the reasoned proposal and the fourth recommendation. This extensive document, comprising nearly 100 pages, contained the government s interpretation of developments since 2015 and the reasons for and aims of the reforms ; this document is full of inaccuracies, to put it mildly. 9 The largest association of Polish judges Iustitia issued a damning reply to the White Paper exposing the false statements and assessments contained therein. 10 In Courts we trust In recent weeks, new factors have arisen which need to be taken into account when assessing the situation of the judiciary in Poland in the context of the requirements of EU law. First, the Court of Justice of the European Union (CJEU) handed down its judgment at the end of February in Case C-64/26 Associação Sindical dos Juízes Portugueses. 11 In this judgment, which some commentators have already called revolutionary, the CJEU presented extensively, and accentuated in the context of Article 19(1) TEU, the importance of the independence of national courts for judicial review in the EU s legal order and for providing remedies sufficient to ensure effective legal protection. The judgement provided a wide-ranging definition of courts independence and contained a broad assessment of its scope by the CJEU in the fields covered by Union law. This judgment could have an impact on the assessment of the systemic changes in Polish law and how they are applied in practice; there is no doubt that we are witnessing a new situation. In the light of this judgment, any potential legal action initiated by the Commission concerning the infringement of EU law inherent in the considerable restrictions on the courts independence in Poland could have a wider reach than before. I understand, however, that a decision on bringing a new or modified case before the CJEU based on Article 258 TFEU would be more political than legal in its nature. Nevertheless, the CJEU can assess the independence of national courts in various procedures.
This leads us to another new development: the preliminary reference of the High Court in Dublin of March this year. 12 The questions from the Irish High Court are formulated in a non-typical manner but one can assume that the High Court is in essence requesting an interpretation of the framework decision of 2004 in relation to the admissibility of surrendering a person suspected of drug trafficking to Poland under the European Arrest Warrant procedure. The Court relies on the conclusion that there is a deliberate, calculated and provocative legislative dismantling by Poland of the independence of the judiciary, a key component of the rule of law. 13 The Irish court is asking about the test that should be applied in taking the decision on whether to refuse to surrender a person to another Member State. Is cogent evidence that conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing Member State is no longer operating under the rule of law sufficient or is it necessary for the executing judicial authority to make any further assessment, specific and precise, as to the exposure of the individual concerned to the risk of unfair trial? The High Court goes on to ask whether the test to be applied requires a specific assessment of the real risk faced by the requested person if a flagrant denial of justice has occurred and where the national court has concluded that there is a systemic breach of the rule of law. Is the national court, as the executing judicial authority, obliged to revert to the issuing judicial authority for any further necessary information that could enable the national court to discount the existence of the risk of an unfair trial and if so, what guarantees as to a fair trial would be required? The CJEU is expected to deal with the matter quickly. 14 The situation is very serious. It turns out that an assessment of the situation in Poland from the perspective of EU law has moved from the political domain towards the courts of Member States and the CJEU. I wish to briefly express my provisional opinion on these matters. The Irish court has accurately presented two viewpoints from which the assessment of courts perspectives and the chances of a fair trial can be analysed. In the light of what has been said above, there is no doubt that the independence of the courts has been considerably restricted in Poland. If one were to limit oneself to such a true but general statement, one should agree with the conclusion about the grounds for the refusal to surrender a suspect. However, the matter is more complicated than that, and the current picture of the judiciary is not unambiguous. As I said, there are about 10,000 judges in Poland and one can agree that a decisive majority of them are attached to their independence and reluctant to accept wide-ranging powers for the Minister of Justice or court presidents to interfere in judicial matters. Concluding remarks What conclusions do I draw from that? Well, although the current legislation breaches the independence of the courts in Poland, this does not mean that individual judges are deprived of their independence in giving judgments or that trials are unfair. It is true that there have been instances of court presidents trying to exert pressure on judges, but these have been quite rare to date. One can expect that the person handed over from Ireland to Poland in a matter of drug trafficking, which is a criminal case with no political elements involved, could count on receiving a fair trial. The question arises, however, of how the generally very critical assessment of the observance of the rule of law in Poland may influence cooperation between courts in the EU and the principle of mutual trust and mutual recognition of judgments in specific situations. Should we take into account the general tendencies to restrict the independence of the judiciary or examine specific cases and assess the chances of a fair trial? Should we adopt an everything or nothing solution? I believe that these are important questions and not only for Poland. A vision in which Polish courts are excluded from EU judicial cooperation would be truly frustrating.
There are no good answers to these questions. I would be reluctant for now to conclude that the Polish courts are not reliable in applying domestic and EU law. A vision in which Polish courts are excluded from EU judicial cooperation would be truly frustrating. It could cause damage to my state and to the EU as a whole. This would be measurable and non-measurable damage, both general in its nature and having an effect on individual nationals and their organisations. Regrettably, the determination of Polish authorities to implement the intended changes, in sheer disregard of protests in the country and the position adopted by EU institutions, does not make one optimistic. 1 W. Sadurski, How democracy dies (in Poland). A case study of anti-constitutional populist backsliding, Sydney Law School Research Paper No. 18/01, January, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3103491. 2 M. Mazzini, For Central Europe s illiberal democracies, the worst is yet to come, https://verfassungsblog.de/for-centraleuropes-illiberal-democracies-the-worst-is-yet-to-come/. 3 M. Matczak, Poland: from paradigm to pariah? Facts and interpretations of Polish constitutional crisis (12 March ), https://ssrn.com/abstract=3138541. 4 Matczak, op.cit. 5 www.venice.coe.int/webforms/documents/?country=23&year=all. 6 Communication from the Commission to the European Parliament and the Council. A new EU framework to strengthen the rule of law (COM/2014/0158 final), https://eur-lex.europa.eu/legalcontent/en/txt/html/?uri=celex:52014dc0158&from=en. 7 Brussels, 20.12.2017 COM(2017) 835 final 2017/0360 (APP). 8 Brussels, 20.12.2017 C(2017) 90 final. 9 www.premier.gov.pl/files/files/white_paper_en_full.pdf. 10 www.iustitia.pl/images/pliki/response_to_the_white_paper_full.pdf. I was one of the authors of Iustitia s response to the White Paper. Some of my critical comments concerning the legislation on the judiciary formulated above (in part I) are based on this document. 11 http://curia.europa.eu/juris/document/document.jsf?text=&docid=199682&pageindex=0&doclang=en&mode=lst&dir=&o cc=first&part=1&cid=257490. 12 The case is registered as C-216/18 (PPU) Minister for Justice and Equality. 13 www.courts.ie/judgments.nsf/0/578dd3a9a33247a38025824f07e747. 14 A hearing is expected on 31 May.