Krystian Markiewicz: politicians listen to judges, when they are in opposition
NOVEMBER 23, 2023
An interview with Krystian Markiewicz, president of the Polish Judges` Association Iustitia on how to build a modern, citizen-friendly judiciary in Poland.
MACIEJ CZAPLUK: - The incumbent opposition has a majority in the Sejm, that probably in December will appoint its government. What do you expect from this majority?
KRYSTIAN MARKIEWICZ: - We all want to live in a country where people are equal before the law, court cases are resolved efficiently, and judges are trusted in the society. This is our goal and it is within the capabilities of Poland - a country with such potential. We have excellent engineers, computer scientists, doctors, and recent years have shown that Polish judges have defended the rule of law. Throughout Europe, this is commendable. It is necessary to bring this task of rebuilding the rule of law a final conclusion, the dot over the "i" should be put.
From the ruling majority I would expect determination in rebuilding the rule of law and building a modern judiciary, to create a certain concept of how to do this in every field. I am referring here to the actions of the Sejm, government and the Minister of Justice. The previous opposition promised in the campaign to restore the rule of law, this was also one of the main motivations of its voters. This is a condition for Poland to get the money - European money, which the Polish economy needs like dry soil of rain. I would also like to see this concept and these measures established, among others, with judges and with prosecutors, i.e. with those who will implement these changes. I have a strong conviction that only cooperation, both in planning and later in implementation, has a chance of success.
What qualities should the new justice minister have?
He/She should be aware of what has happened over the past eight years. He/She needs to be determined in making bold decisions, including - when necessary – personal decisions. I am thinking here, among other things, of decisions regarding courts` presidents, disciplinary commissioners, the delegation of judges, the National School of Judiciary and Public Prosecution, and many others. The worst thing that could happen is if the minister does not make decisions, or makes decisions that will not actually change much. We have lost last eight years, and looking at the lack of real reforms, maybe even 30. Let's start by restoring the rule of law, and then start working on speeding up proceedings. It's better to cut the Gordian knot than to spend years untangling it.
Where should this restoration of the rule of law in Poland begin?
It seems necessary for the Sejm to pass two resolutions. In one, MPs would declare the appointment of so-called "understudy judges" to the Constitutional Court defective, and in the other they would declare that the judicial part of the National Council of the Judiciary (NCJ) has been staffed unconstitutionally. This would be a way to block its work. The rationale for the latter is the judgments of, among others, the Supreme Administrative Court or European tribunals, which have already stated this. Prof. Marek Safjan, a prominent Polish lawyer and judge at the EU Court of Justice, is of the same opinion. Also the former first president of the Supreme Court, Prof. Adam Strzembosz, allows such a solution.
And what would it change?
It would be the Sejm's confirmation of two obvious cases that have been fundamental to the destruction of the rule of law in Poland over the past eight years. MPs would have the opportunity to show that they are serious about the enforcement of court decisions in Poland. That it would no longer be the case that we recognize the verdicts we like, while those not to our liking we hide in a drawer and contest.
This should be the duty of the Sejm, because this body has led to a violation of the Constitution by its resolutions. At the beginning of the first term of the Law and Justice party, opposition politicians demanded the publication and execution of judgments of the then still properly staffed Constitutional Tribunal, which were inconvenient for the authorities. They also spoke of the unconstitutionality of the Sejm's selection of judges to the NCJ. Now they have a chance to prove that they do not intend to use similar methods.
And what's next? The Iustitia Association has prepared draft laws on the NCJ and the common courts.
We want to curb what has been a pathology in the judiciary and introduce solutions to make it independent, modern and efficient. One of the main changes is to unify the status of judges and significantly flatten salaries. The goal would be to stop the chase for positions and money that we have seen clearly in recent years. Promotion by one rank and a raise of 1,000 or 2,000 zlotys was an end in itself.
The best judges should also be on the front line, in the district courts, rather than fleeing for careers higher up. It would also reduce the influence of politicians on judges, because the president would appoint a judge only once, when he enters the profession, and not, as now, every time he is promoted from one court to another.
Another thing is to limit the supervision of the Minister of Justice over the courts. This is a Prussian formula, which may have worked, but in the 19th century. It treats courts like offices, and in the modern world the power of the government is so great that independent institutions to control power should be strengthened. Courts should stabilize democracy in times of crises, protect the rights of the weak, together with the prosecutor's office help fight corruption. We see in many countries, such as Hungary, how easily democracy is being dismantled using state money. That's why Europe is already moving away from a system of courts subject to the authority of the minister.
In Poland, ideas about what to do with the judiciary change at every general elections. We have a swing of ideas, and we would all like planning for years. It's like with land use planning: we need to think today about what we want our country to look like in 30 years. Another completely obvious issue is the questionable constitutionality of the minister's supervision of the courts in general. Everyone is rightly outraged by a politician's supervision of the prosecutor's office, but accepts his supervision of the courts.
Administrative courts in Poland are not supervised by the minister, but by the president of the Supreme Administrative Court. Despite this, or perhaps because of it, these courts are doing quite well, e.g. they have better databases of open rulings, which benefit citizens.
What else would change?
We are committed to opening the courts to citizens. The Law and Justice governments have shown that with bad will, no legislation will protect the courts from politicians, but ordinary citizens can. This protection will be more effective when the public in counties or municipalities treats the court and judges as "their own," and not as a body at the behest of the minister. Thus, we propose the establishment of a citizen council at the NCJ and the appointment of citizen judges - while giving citizens the choice of whether they want such judges to hear their case.
In addition, councils would be established at the presidents of appellate courts to show what works and what doesn't work in the judiciary in a given area. If the First President of the Supreme Court or the President of the Constitutional Tribunal presents to the Sejm the problems in the operation of the units they head, why shouldn't the president of an appellate court tell the local community what the problems are there, reporting to the appropriate level of local government?
Another thing is a modern system of judicial management. It would involve, among other things, weighing cases and adjusting the staff in the courts - not just judges - according to actual needs. Currently, in one court there is a six-month wait for a verdict, while in Warsaw there is a two-year wait for the first court date. In cases of Bank loans taken in CHF, people change their place of residence to get a verdict faster.
These changes would, of course, more than meet the so-called milestones needed to unlock funds for the National Recovery Plan.
It all sounds like a dream, but why would a government from one option and a president from another agree to it? Could it work?
If we didn't believe in it, we probably wouldn't do it. We believe, however, perhaps overly optimistically, in the wisdom of politicians, including the Minister of Justice, who will know what trends are beginning to prevail in the West, and will not be afraid of them. After all, we don't want to make these changes because we have such a whim, but because we are convinced of their effectiveness.
It will also be in the interest of that minister or other politician, because in four years' time people will go to the polls and say, "well, it was supposed to be better, and we're still waiting months for their case to be heard in court." And what will the politician tell them then? People want two things, as the polls show - for it to be faster and before an independent court.
Besides, we don't want to take power for ourselves. Our project assumes that oversight of the judiciary will go to the NCJ, not to Iustitia or another association. And who sits on the NCJ? 25 people, of which there are 15 elected judges. In addition, there is a representative of the president, the minister of justice, four deputies and two senators. This is the only body where there are representatives of all three authorities.
In addition, as I mentioned, we are opening this body to citizens. Let's remember that the rule of law is one of the guarantees of prosperity. Countries with the rule of law have more foreign investment, develop steadily and survive crises better.
And won't the disputes of the past eight years make it difficult to carry out your ideas? Law and Justice accused the Iustitia Association of extreme politicization.
Sometimes the defendants use such a method that when they want to delay a trial, they sue a judge for some made up case, only to then file a motion to exclude him, because as a defendant he is not impartial. It's a similar situation, because for the last eight years all we've done is defend the rule of law. It's like accusing doctors of talking about the harm of smoking cigarettes. After all, for God's sake, we defended the rule of law. We would have done so regardless of who happened to be in power. And now we are accused of politicization? This is nonsense. We have defended as judges the values that have been central to us not for eight years, but for more than 30 years. Judges are the third authority - we didn't invent it, it's just the way it is. And these authorities, according to the Constitution, are obliged to interact and cooperate. So it is probably natural that we try to interact as much as we can.
There is a saying that politicians talk to judges willingly, but only when they are in opposition. I remember conversations with the Law and Justice party before 2015. - At that time they supported our various demands, while the PO (Platforma Obywatelska political party) in power criticized us. This shows that we are consistent in what we do. We don't look at whether such a party or another party wins. We don't want to cooperate with politicians, but just with the government as such.
What if the new government also ignores your ideas and introduces its own? How will you react? Will you again exclude from the ranks of Iustitia judges who will participate in this?
Definitely yes. It's not that there are such parties in power now, so we will blindly accept all their ideas. We are not there to like or dislike one option or another. If this power would like to carry out destructive actions that would harm the rule of law, we will be the first critics. And this was the case before 2015, when Donald Tusk was still prime minister. I hope, on the other hand, that this will change. That politicians will be able to learn lessons and we will be able to work with each other in partnership, because this is key.
And if we are going to be surprised by various things, if this bad way of doing politics doesn't change, we won't participate. As an example, I can mention here the reform of Jaroslaw Gowin, Minister of Justice under the previous Tusk government. It assumed the abolition of many small courts. We were the first to oppose it then. And it will remain that way.
Returning to legal issues: what about judges who were nominated after the procedure before the flawed NCJ?
Two extreme opinions prevail on this issue. One assumes that we recognize and accept the current situation, the president`s appointments and we pass over it - except perhaps for glaring irregularities in disciplinary proceedings. Another is to expel everyone from office on the grounds that they embezzled their judicial oath. According to a recent poll by IBRIS for Rzeczpospolita, 34.2 percent of respondents expect the removal of all appointees from the judiciary under the Law and Justice (PiS) government.
We propose that all those who went through the procedure before the flawed NCJ return to their jobs from before 2018, that is, the introduction of these negative changes. They will then be able to run in contests before the new NCJ, which of course will require the prior enactment of a relevant law.
Our solution comes from the decisions of various international courts and tribunals, which have ruled that the acting NCJ is not the body referred to in the Constitution and does not have its qualities, such as independence or impartiality. Consequently, the president could not appoint these judges. Our solution assumes at the end a judicial review before a properly staffed Supreme Court. Prof. Marek Safjan is of a similar opinion. Such a measure is a systemic solution to the problem, respecting the rights of those who previously did not run in illegal contests, and guaranteeing everyone's right to a court. And another important caveat - revocation to previously held positions will not apply to former court assessors who entered the profession. We recognize the difficult situation of those who completed the judicial apprenticeship, passed the exam, and who were running out of time to enter the competition - and here we are still looking for a bridging solution for them. On the other hand, we do not believe in any vetting commissions or similar creations and endless processes that last for years. These mechanisms have not worked anywhere in Europe. This is not what the public expects.
What else should the new justice minister do?
First of all, I think that together with the Minister of Education, he should introduce a subject called "civic education" in schools, teaching why constitutional values are important for freedom. The second thing is immediate work to computerize the judiciary. We are backward compared to countries such as Georgia or Brazil, not to mention Estonia.
The other thing is to reactivate as soon as possible the codification commission under the Minister of Justice. This would be a space where judges, together with other lawyers, could work on changes to the codes, mainly those relating to proceedings, in order to streamline them and to remove many of the flawed provisions that have appeared in them in recent years. These are things that really should be done as soon as possible.
It is also necessary to mention the increase in salaries for court employees and an adequate number of clerks and registrars. These people must want to work and see meaning in this work, because there will be no efficient courts without them, just as there will be without judges.