REMEDYING THE JUDICIARY SYSTEM IN POLAND – RESTORING THE RULE OF LAW

Abstract

A European Union member state since May 2004, Poland has in recent years been repeatedly challenging fundamental values and principles of European Union law: the rule of law, loyal co-operation, and the primacy of applying EU law. The significance of multiple international agreements binding for Poland has been depreciated, the constitutionally guaranteed tripartite division of power and hierarchy of legal acts seriously distorted.

 According to the prevailing consensus, the judiciary is one of the areas to the greatest extent affected by far-reaching violations and problems. Amendments to the Common Courts Law (so-called muzzle law) made it possible to penalise judges for rulings designed to implement standards arising from international agreements Poland is signatory to and the Treaty on European Union, or even implement international courts’ case law. Consequently, disciplinary proceedings had been initiated against judges referring to European Union law and/or the European Convention on Human Rights in their rulings. Poland’s Constitutional Court – the correctness of its staffing procedures questionable – has issued judgements undermining the validity of European Union law and the European Convention on Human Rights in Poland.

Issues of appointing justices and the consequences of their rulings have triggered greatest doubt in Poland. Circumstances of post-2017 changes to the composition of the National Council of the Judiciary (NCJ) have undermined the body’s independence from legislative and executive powers. Most lawyers believe that the Council’s composition contradicts Article 187 of the Constitution of the Republic of Poland: justices making up the NCJ are selected by representatives of political parties rather than the judicial community. The situation has impacted the capacity for proposing independent and impartial candidates to judicial positions at Polish courts of law, currently involving as many as around 3,000 judges on all levels of the judiciary. Many believe that they have been appointed in violation of fundamental national regulations governing the procedure for judicial appointments.

In a ruling in Case C-718/21 of December 21st 2023, and in reference to the European Court of Human Rights’ ruling of November 8th 2021 in the case of Dolińska-Ficek and Ozimek (Application Nos. 49868/19 and 57511/19), the Court of Justice of the European Union found that the panel of judges of the Chamber of Extraordinary Control and Public Affairs of the Supreme Court of Poland, the panel having been appointed by the politicised NCJ, is not an independent or impartial court previously established pursuant to legislation, as required by European Union law. It has been recognised that the totality of circumstances behind the appointment of justices forming the panel who had submitted questions in the case may – in the eyes of the public – raise reasonable doubt with regard to the independence and/or impartiality of aforesaid judges. It may further undermine the confidence that the judiciary should inspire in any democratic society or a state of law.

Poland’s parliamentary elections of October 15th 2023 brought a change in government, the established majority facing the task of remedying the judiciary and restoring the rule of law. Notable early announcements include measures intended to block the works of the National Council of the Judiciary, by preventing the Minister of Justice from publishing announcements concerning new judicial competitions. The Council has been continuing operations and making decisions crucial to the community, with the likely consequence of slowing down the tempo of expected changes in Poland. Such changes should be achieved through the systemic introduction of remedial laws accounting for the importance of the rule of law and principles resulting from European Union membership.