Recently, while I was on the tram, a fellow passenger told me, `keep on fighting, don't give up’. Such remarks always uplift my spirits and show how the perception of judges in society is changing. On the other hand, it also reveals the pathological situation that Poland has found itself in. Judges must defend their independence against their own country’s government. Meanwhile, it should be the government defending the independence of its judges.
In 2016, the Polish government and parliamentary majority declared war against judges. The Law and Justice Party counted on buying the majority of judges with promotions, committee memberships and delegations to higher instances, while hoping to face opposition only from a few representatives of the old system who could be discredited as post-communists or members of a privileged elite. Yet not everything went according to plan. Despite the brutal political offensive, the judges were not to be bought or intimidated. What’s more, the staunchest resistance against the political takeover of the courts came from judges in their forties who were far too young to have had any communist affiliations. Indeed, they mostly became judges after the year 2000, often by nomination of president Lech Kaczyński, the twin brother of the current leader of the Law and Justice Party.
Yes, these are the facts – today the average Polish judge is forty years old. The government is not struggling against the remnants of some post-communist ancien régime. It is struggling against thousands of people educated in an independent Poland who want to do their work in accordance with the spirit of law. These judges, whom politicians call the Caste, risk their entire professional lives by taking to the streets, making decisions in defiance of politics and standing up to defend the rule of law.
Why are they doing that?
I will answer for myself: because this is the moment of truth for which I have been preparing my entire professional career. One becomes a judge to defend people: to protect their rights and freedoms. Today this freedom is under threat.
This is a job you really choose out of a sense of mission. When I graduated from law school, the general opinion was that becoming a lawyer or legal advisor is much easier, if you have a lawyer or legal advisor in your family. The application route for judges had a reputation for requiring dedication and effort. The judicial exam was considered the hardest. This is how the generation of judges in their forties was shaped: they know that they do not owe their position to anyone but themselves.
The value of integrity and independence is witnessed by Poland’s history.
One of the bitterest experiences of the communist period was the powerlessness of citizens in confrontations with the state: the sense that the authorities can do anything and that anyone who disagrees with them can be put in prison. That nobody would defend people. That is why a judiciary that was free, independent and far removed from political control became one of the main symbols of the change that occurred after 1989. From the beginning of free Poland, the courts developed in a healthy separation from other authorities.
The shift of 1989 opened an opportunity to build a new judicial staff – one selected not according to political criteria, but personal skills. Even when, two decades later, the administration underwent political erosion, no one raised their hand against judicial independence.
This changed in 2016, since impartial courts are inconvenient for the authorities. Let me remind you of the infamous accident in which a Seicento collided with a convoy of official state cars. Less than a day later, minister Błaszczak pronounced the driver guilty without waiting for an independent inquiry. Or consider the case of the leader of the ruling party who is suspected of a crime. If politicians had their own judges, one phone call to the president of a court would be enough. Matters would be settled without a political muddle. Authorities would go completely unpunished. These are the stakes in this game.
You may also be at risk
I get the impression that due to the constant buzz of information, "political rows" which continue for years, twists and turns of current events, daily quarrels in parliament and the evening news, people are distancing themselves from the battle for the courts. This is a mistake. Do you think this does not concern you? That it's just “politics”? See how comfortable you will feel next time you find yourself in a minority.
The weight of the issue was felt, for example, by protesters against logging in the Białowieża Forest. The state forestry and the police relentlessly demanded their punishment. The courts acquitted the protesters in many cases regardless. People who were uncomfortable for the ruling party were saved by the fact that judges were able to freely pass verdicts that were fair in their opinion, and not that of politicians.
Or let's take victims of hate crimes related to activism that the government disapproved of. Such people seek court protection. They must be certain that the court scheduled to hear their case is independent, even if their actions are inconvenient for those in power.
Are you not a member of any of these groups? Alright. You might be an entrepreneur with a contract with a state-owned company. Or a person who has been denied a benefit. Or have a dispute about a plot of land with the son-in-law of a local politician. If you argue with a person in a position of power, who should make the call whether you deserve compensation or should go bankrupt? An independent judge or one on the phone to a political committee?
Fruit of the poisonous tree
After these few years, where do we stand legally?
For the government of the Law and Justice Party, the key to gaining control over the judiciary was to pacify three institutions: the Constitutional Tribunal, the National Council of the Judiciary and the Supreme Court. The current state of play is that the political takeover of the Constitutional Tribunal and National Council of Judiciary is complete, while the Supreme Court has managed to retain its independence so far, thanks to the judgment of the Court of Justice of the European Union in Luxembourg (CJEU).
The problem is that the so-called "fruit of the poisoned tree" has already been introduced into courts. By this I mean the judges elected to the National Council of the Judiciary in 2018. Until then, they were elected by bodies of the judiciary. Meanwhile, the 15 members of the neo-NCJ were chosen in parliament by the votes of the Law and Justice Party and the party Kukiz'15.
The consequences are twofold. The first is that judges immediately realized that career progression no longer depends on competence, but only on contacts and loyalty to certain politicians.
What was that like? I will tell you. People with lower competencies, for example with large numbers of overruled judgments, but with strong political contacts started winning promotions. The interviews for applicants to the Supreme Court were shorter than those for the post of a courier, while the successful applicants were all well known to the Minister of Justice. The minister dismissed several hundred presidents and vice presidents of courts by fax and then replaced them with new ones. Trials were moved to earlier dates, insubordinate judges were transferred to other departments and disciplinary proceedings were opened against critics of the authorities. The new National Council of the Judiciary went on a spree of judicial nominations, as a result of which the President appointed more than 300 judges. The political virus introduced into the judicial system spread and replicated itself. The effect may be that "political" judges will endorse others of their kind and become the largest group in the judiciary. No one whose case is presided over by such a judge can feel confident that the decision will be taken in the courtroom and not by some party committee.
The second effect concerns citizens directly. If a judge is nominated in violation of the law, their verdicts are easy to challenge. Suppose that you are a party in a case about inheritance, overdue invoices or child custody. After a verdict is passed, the other party can undermine it by claiming that it was issued by an incorrectly appointed court.
This means chaos. And it was this chaos that the Supreme Court tried to stop.
By resolution of its three joint chambers, the Supreme Court allowed anyone who has a case in court the right to request a check on their judge to see whether they have been politically appointed or not. Minister Ziobro announced immediately that the Supreme Court’s resolution is invalid. Meanwhile, today there are already over 70,000 cases whose legality can be doubted and potentially challenged! 70,000 cases of citizens, whose life plans concerning business or family rely on the court’s decisions. They all face the risk that any sentence could prove invalid! This is the true face of the issue about the judiciary: the one relevant for ordinary people. While the Minister of Justice is busy organizing another press conference in parliament, we, the judges, keep repeating: people need stability and trust in the legal system.
Poland may fall outside the EU legal system
This chaos, completely neglected by politicians, may soon grow to an even larger scale. If President Duda signs the so-called “muzzle law” which has already been passed by the lower chamber of parliament, he will complete the destruction of judicial independence and the country will cease to be viewed by courts and lawyers abroad as having a stable legal system. It will stop being a partner.
If you are suing a foreign company which owes you a payment for your work and a Polish court decides that they should pay, the company’s lawyer may challenge the judgment abroad by saying that it was issued by a court that acts illegally.
You just won a case over a piece of land and want to rent it to a foreign tenant. Their lawyer may tell them that your ownership is uncertain and the transaction is risky.
Here’s another real-life case. Are you divorcing a foreigner and fighting over child custody? Your spouse’s lawyer will be able to negate the Polish court’s sentences indefinitely. This is the utter destabilization into which Poland and the Poles are being dragged into by today’s government.
Recent announcements by politicians of the ruling party imply that they are still fighting for full control and want to pacify the Supreme Court by using the Constitutional Tribunal. This will mean ever greater chaos, because they will not be able to impose their solution on ten thousand judges.
Every day these thousands will deliver justice on the basis of genuinely binding law. The government might try to use force by removing a few dozen of the most outspoken judges. In this they would be aided by three disciplinary commissioners: Mr. Radzik, Mr. Lasota and Mr. Schab, as well as the Disciplinary Chamber composed of Ziobro's allies. Such practices alone place Poland in the company of such countries as Turkey and Belarus.
This threat has been recognized by the European Commission. It has already appealed against the provisions which allow the discretionary direction of judges before the Disciplinary Chamber and has been trying to freeze the ongoing disciplinary proceedings. Now it only remains to wait for the reaction of the Court of Justice in Luxembourg, which ought to safeguard the same level of independence for the Polish judiciary as in all other member states of the European Union.
I think that citizens may feel like they are watching some abstract film. They are swamped by a mass of complicated legal information, comments, conferences: a constant stream of contradictory messages. It's hard to make heads or tails out of all that. I suspect that this might be the government's goal: to create a buzz of information and divert attention from what really matters.
What really matters?
Firstly: ordinary people will foot the bill for the political struggle over the control of the courts. It won’t be the politicians or their relatives. Even today your case may be heard by a judge who owes their promotion to politicians. Who will they listen to? Who can punish them? If they are in the grip of politicians, have you got a chance to win against the authorities?
Secondly: today we are facing the great risk of falling outside the European Community. Every Pole must understand this, since it will translate into their own security, economy and everyday life.
Thirdly: fortunately, we are still in the EU. This entire political dance takes place in a reality wider than that of one government or another. Regardless of how many times Minister Ziobro or other party politicians repeat that they do not care about the verdict of the Supreme Court or the court in Olsztyn, the European Union and the CJEU will not be impressed. The Union will defend the independence of Polish courts. And they have the tools to enforce obedience to European law from the government. Let us remember – it was the CJEU that put an end to logging in the Białowieża Forest by threatening the government with enormous sanctions.
That is why we, judges, will not give up. It is our duty to reach for all available legal instruments and fight. But the most important ingredient in this fight for freedom will be solidarity.
Bartłomiej Przymusiński. Judge, member of the National Board and spokesperson for the IUSTITIA Association of Polish Judges.