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CHAPTER II.

JUSTICE FOR ALL

The courts, and the work of institutions related to the justice system, were not generally well regarded among Poles after 1989. During the first two decades of democracy, they were commonly perceived as the sector of public life that was slowest to reform. Poles were disconcerted by the many privileges enjoyed by judges and public prosecutors.[1]   The system was burdened from the start by “genetic” problems from the past, an excellent example being the fate of the law on examination of the past communist links of public officials (“lustration”). The Constitutional Court imposed such a narrow interpretation of the definition of cooperation with the communist security services (SB) as to make it extremely difficult to prove before a court that former secret agents had in fact cooperated.[2]

The Constitutional Court

The issue of the Constitutional Court took on particular significance at the very start of the period of Law and Justice government after the party’s victory in the 2015 parliamentary election. The example of the Constitutional Court’s action in the case of the “lustration” law gave reason to suppose that that body, by means of its own rulings, would be in a position to paralyse any attempt by parliament to reform the state. For this reason, one of the first reforming actions taken after the election was the reform of the Constitutional Court, into which Law and Justice was moreover virtually forced by the unlawful premature appointment of Constitutional Court judges made several months prior to the election.    

Under an act passed for that purpose in June 2015, in October of that year, just before the end of the second term of office of the Civic Platform–PSL coalition, the Sejm (the lower house of parliament) elected five new Constitutional Court judges,^[3] to replace existing judges whose terms of office were due to end in November and December, after the election scheduled for 25 October. Law and Justice, then in opposition, challenged their appointment, arguing that while the terms of office of three of the judges were due to end after the election but still under the current Sejm, those of the other two were not due to expire until December, during the term of the new Sejm. The intention of the hurried changes was in fact to to ensure that the outgoing coalition would maintain a majority on the Constitutional Court, which could block moves of the new government and usurp the role of “third estate”.

In an interview in 2017, Jarosław Kaczyński gave the following assessment of the situation with regard to the  need for changes in the Constitutional Court: “(...) The manoeuvres of Civic Platform and the PSL with regard to the Constitutional Court clearly served to turn it into a third parliamentary chamber that would block any changes. They were also completely at odds with constitutional practice as applied for many years. We responded to that. We had not only the right, but the obligation to do so. After all, it was an attempt to change a democratic system into one controlled by a tribunal. An attempt to bring about a factual change to the constitution. Following our victory, the Constitutional Court was supposed to put a spanner in the government’s works, to prevent us from succeeding in rebuilding the country.”^[4]

In late November and early December 2015, by special motion, the new Sejm invalidated the previous coalition’s election of five Constitutional Court judges, and on 8 December it elected five new judges in their place.

New laws on the Constitutional Court passed in 2016 and 2018 answered the demands of the parliamentary opposition and the recommendations of the Venice Commission in respect of the publication of judgments of that institution issued prior to the changes in its composition in late 2015.

“We have a normally functioning, politically unprejudiced Constitutional Court, not politically subordinate to anyone, that does not always rule in our favour. We have attempted to change the Constitutional Court in what is, in my opinion, a reasonable way. I am speaking here of the legislative changes, but in the final reckoning those changes are minor. As you know, there was much noise made about this, but the Court is continuing to function in an orderly fashion, and contrary to what is claimed by some, it does not always favour us”, said Law and Justice leader Jarosław Kaczyński at the ruling party’s 2018 congress.^[5]

In spite of resistance from certain circles at EU institutions, and the opening of proceedings against Poland at the end of 2017 – a procedure invented  ad hoc  in relation to Article 7 of the EU Treaty (also applied to Hungary in 2018 at the initiative of the European Parliament) – this did not stop the reform of the Polish justice system, and did not cause the Law and Justice government to renounce the goals and achievements of the changes initiated since its coming to power in autumn 2015.

 

***

 When Law and Justice came to power in 2015, the courts were widely seen as institutions in deep crisis. In site of attempts made in previous years (with some limited success) to remove obstructions to professional advancement by broadening access to apprenticeships in the professions of judge, advocate and notary, it was hard to speak of any fundamental improvement in the state of affairs. The justice system was increasingly seen as a kind of “state within a state”, outside any public control, and immune even from public evaluation and criticism. Compared with other EU countries, Poland has a large number of judges relative to the size of its population; however, this does not translate into efficiency of the system, or even the satisfaction of those in the profession.^[6]

Judicial circles had long displayed a tendency to close themselves off from any criticism, however well justified  . . Rational criticism of court verdicts was generally to be found only on the pages of professional journals. The young age at which judges were appointed, and fact that they were practically irremovable until the end of their professional career, were not balanced by any effective mechanism of public control. The courts operated ineffectively, increasingly losing the public’s trust. The greatest problems were corruption and nepotism, as well as the dependence of the organs of justice on a range of links to local lobbying and interest groups, dishonest businessmen, and finally the world of politics. Sometimes these were links of a subtle nature, involving a whole network of more or less visible relationships with particular circles, but in other cases they were more tangible – as in the case of the chief judge of the regional court in Gdańsk, who made decisions on the form and timing of hearings in consultation with the prime minister’s office^[7]. Despite its name, the justice system was increasingly perceived as somewhere that people would find not justice, but injustice and additional trauma. Courtrooms, and the offices of lawyers and notaries, became places where the law was applied selectively, in terms of equality before the law “some were more equal than others”, and the ordinary citizen stood no chance when up against the great official machine.

Reforms of the justice system were an explicit part of the Law and Justice party programme. Its official manifesto for the 2015 election contained such passages as this:^[8]

“The justice system and prosecution service in our country require fundamental repair, which should be based on three assumptions.

First, the justice system must not be a “state within a state”. While the basic constitutional guarantees of independence and impartiality are upheld, citizens must not be deprived of influence over the functioning of the “third branch of power”. It is to serve people and society, and not itself. There must be effective control mechanisms that prevent the dispensers of justice from turning away from their role as servants of society and failing to correct mistakes.

Secondly, criminal justice policy must ensure that offenders are effectively prosecuted and justly punished. It must be conducted primarily through the action of the prosecution service in pursuing and charging offenders and appealing controversial court judgments. Thus the prosecution service must again become an element of executive power headed by a Minister of Justice and Prosecutor General, an instrument of the realisation of a policy for which the government will be answerable to parliament.

The third assumption: zero tolerance for pathologies in the justice system. That system should be a sphere of state activity totally free of corruption, nepotism, and social and business links.”

After its victory in the election, Law and Justice initiated and implemented measures leading to a more efficient court system and elimination of the pathologies growing within it. What kind of pathologies? One Polish lawyer described the ills of the justice system as follows: “(...) We know of such practices as: judges dictating records of proceedings not in accordance with what actually happened in court (what was heard is not what was written down), reliance on impressions formed at an early stage of the case, and the “stereotyping” of parties before learning the merits of the case, according to extralegal criteria that make the work of the court easier. It is not possible to order by decree that logical reasoning must be applied and the facts must be thoroughly examined, but it is possible to create procedures that will encourage appropriate intellectual effort. […] As a glaring example, I know a case where an elderly judge with long experience in an insurance court routinely collected evidence before and outside hearings to the defendant’s advantage, corresponded with the defendant without informing the plaintiff, and at hearings merely questioned the plaintiff as to “the circumstance of the case”. He wrote the records in such a way that the plaintiff’s testimony was made to contradict his claim, even though it was clear that the plaintiff did not understand that his statements were being distorted. That judge no doubt conducted all of his other cases in a similar way for many years. I believe that a full list of such judges and cases would be surprisingly long, if reliable interview-based research were to be done into the matter.”^[9]

In turn, in an interview, Law and Justice leader Jarosław Kaczyński set out the principles of the reforms of the justice system as follows: “It is not without cause that the courts are loathed by ordinary people. For that reason we will not back down and we will remove those pathologies within the limits that the constitution allows. We do not have any political interest here, since it is clear that there will be conflict, uproar and protest, so it would be easier not to touch anything and enjoy peace and quiet.”^[10]

The essence of the changes in the Polish justice system was also outlined by prime minister Mateusz Morawiecki at a meeting with French President Emmanuel Macron, comparing them to the reforms carried out in France under General Charles de Gaulle, and indicating that they served to make a systemic break from the post-communist period.

“(...) I reminded the President of the reforms of Michel Debré, prime minister in 1959–62, which he carried out together with Charles de Gaulle following his return to power, (...) at that time, 15 years after the war, France – with the taint of Vichy, the part that collaborated with Hitler, the conquered France – wanted to cast off the legacy of collaboration and those judges who had indeed been tarnished by it. “(...) We, not 15 years unfortunately, but 25 or even 28 years after the fall of communism, similarly wish to cast off that iniquitous burden.”^[11]

In an article in the Washington Examiner, Morawiecki wrote that no democratic nation could accept for long that one of the branches of power stood above the system of checks and balances and public answerability. Judges from communist times continued to dominate the justice system for 25 years, and some of them were still working in 2015. “Even today, an elite council composed of 25 people, dominated by 15 appeal court and higher judges, appoints all judges, including their own successors. The process does not involve any judge from courts of first instance, or any elected official. The President may accept or reject a nomination. The system favours nepotism and corruption”, the prime minister added, underlining that the changes put forward by the Law and Justice governments could be expected to restore public trust in the justice system and reassure investors that every court case would be resolved in an effective and timely manner.^[12]

Courts brought close to the people

A basic goal of the reform of the lowest-level courts, being a logical step in the reform of the whole justice system, was to improve the functioning of the fundamental units of that system, those with which the ordinary citizen most often comes into contact. The idea of the changes is to make proceedings faster and more effective, and ensure that the decisions of judges engender confidence.

The changes adopted in April 2017 made judges free of pressure from their superiors, restoring impartiality and true independence. The new regulations introduced the principle of equal assignment of duties to judges and a transparent system of promotion, not dependent on good relationships with the court’s chief judge or with judges of higher courts. Past practice indicated that judges’ appraisals of candidates for posts were often based on personal friendships, and questions of merit played little part. Among the measures introduced were the random assignment of cases to individual judges, and the principle that the composition of the judging panel in a case could not be changed. At the same time a Justice Fund was set up as a special instrument to provide assistance to victims and witnesses. The new laws increase the competences of the minister of justice in appointing the chief judges of particular courts, because the minister has a statutory duty to ensure the proper functioning of the court system in its administrative aspects.^[13]

Under the reform, court chief judges and their deputies are appointed by the minister of justice. The minister may dismiss them during their term of office only in case of gross or persistent  failure to perform official duties, when for other reasons their holding of the post is not compatible with the good of the justice system, when they are found to have a particularly low level of effectiveness in performing administrative oversight or organising the work of the court or of lower courts, or in case of their resignation.

According to deputy justice minister Łukasz Piebiak, the changes upheld constitutional standards and put an end to “impossibilism” in court administration. The reform means that chief judges can be rewarded for good performance, and dismissed in case of poor performance. The justice minister has thus gained a dominant influence on personnel policy, on the appointment and dismissal of court chief judges and their deputies, but his powers are limited to matters relating to court administration, and in no way relate to the passing of judgments^[14].

It should also be noted that the reform of the common courts approved in July 2017 gave the justice minister independent power to appoint and dismiss chief judges and their deputies only for a transitional period of six months from the date on which the law came into force. After that period, the National Judicial Council (KRS) may, by a two-thirds majority, block any new decision of the minister to appoint or dismiss a court chief judge or deputy. The influence of the Prosecutor General on the appointment of chief judges and their deputies is therefore not unlimited.

 

A prosecution service in need of reform

Until 2015 the Polish prosecution service operated on the basis of statutory regulations, many times updated, that dated back to the mid-1980s. Following the changes of 1989, the post of prosecutor general was made subordinate to the ministry of justice, and was always held by the justice minister in person. In 2009, the Civic Platform–PSL coalition changed that system, separating the posts of prosecutor general and justice minister. In spring 2016 the Law and Justice government carried out the first comprehensive reform of the prosecution service for more than 30 years, and at the same time returned to the arrangement that had existed up to 2009. It was concluded that the experiment of the previous Civic Platform–PSL government in separating the offices of prosecutor general and justice minister had been a failure, as proved by the way responsibility was passed back and forth between politicians and prosecutors during various cases. The provisions in force at that time did not allow the prosecutor general to provide real direction of the institution of which he was in charge. The prosecution service lost the use of legal instruments by which prosecutors could be motivated to work intensively and energetically. Given the challenges currently faced by the Polish law enforcement authorities, it became necessary for one person to take responsibility both for the prosecution service and for citizens’ security.

Andrzej Seremet, who was prosecutor general during the Civic Platform–PSL government, appearing in autumn 2018 before the parliamentary investigative commission on VAT fraud in the years 2007–2015, gave the following explanation for the lack of action on the part of the service that he had headed in 2010–2016:

“I always said, throughout my time in office, throughout six years of work, that the prosecution service cannot bear an excess of democracy. If we place a prosecutor general at the top, then let us give him the tools and make him answerable for his actions or inaction. But give him the chance, and real significant power. During my time in office the prosecutor general was hampered by various political structures, initiative and institutions that overpowered his capacity for energetic action.”^[15]

As Law and Justice noted in its election manifesto, published in 2014, “following the changes made in 2010, when the posts of prosecutor general and justice minister were separated, and many regulations came into effect giving the prosecution service a corporate character, that service has proved to be an inefficient institution, incapable of performing its tasks effectively. This was spectacularly illustrated in the case of the murder of General Papała, which outraged public opinion: different parts of the prosecution service were conducting two incompatible investigations into the same case, and the prosecutor general was not able to resolve that contradiction, a result of which was the acquittal of those accused of incitement to murder, an embarrassment to the prosecution service. Also well known is the ineffectiveness of the prosecution service in conducting the investigation into the Smolensk tragedy.

That service found itself outside public control, but not outside the political control of the government of the day. The apolitical nature of the prosecution service is mere fiction if the supposedly politically independent prosecutor general waits for more than a year for a decision of the prime minister on the acceptance of a report on which his retention of his post may depend.

The return to a model in which the minister of justice also holds the post of prosecutor general will be in accordance with the legal tradition of the Polish Republic.”^[16]

The “Law on the Prosecution Service” passed by the Sejm in March 2016 made organisational changes in the service which answered the needs of a modern state governed by the rule of law, as well as challenges associated with growing rates of crime, particularly terrorism and financial and economic crime. A new National Prosecution Office was created, to coordinate actions related to the prosecution of the most serious offences and to handle cases involving complex subject matter and extensive amounts of evidence. The Prosecutor General and Minister of Justice, on proposals of the National Prosecution Office, appointed regional, district and local prosecutors and their deputies^[17]. The model of the prosecution service that has now been introduced in Poland has been used successfully in many European legal systems, where the prosecuting authorities are subordinate to the minister for justice. Classical models of this type operate in such countries as Austria, Belgium, the Czech Republic, the Netherlands and France.^[18]

Relics of the past in the National Judicial Council

According to the Polish constitution, the National Judicial Council (KRS) protects the independence of courts and impartiality of judges, and may make applications to the Constitutional Court in relation to various acts and other legal instruments concerning the judiciary. Polish politicians, even including some who do not share the vision of the reforms implemented by the Law and Justice governments, have drawn attention to the excessive dependence of the KRS on the judiciary, and the absence of actual democratic control over that body either by the public or by other state institutions, in spite of the fact that some of its members are elected by the two houses of parliament. It is noted in reports of the Venice Commission and the OSCE that councils of the judiciary must not be entirely dominated by judges, since this leads to a danger of favouritism, corporatism and clique formation^[19]. Under the rules in force in Poland before 2015, judges elected each other, appraised each other and came to decisions about each other.

“The KRS was established in 1989, it was appointed by the last communist-era Sejm as an obvious means of consolidating post-communism in the court system. In our view the courts are among the fortresses of post-communism in Poland. At their head is the Supreme Court, which has truly done a lot to protect people who served the old system, as well as having produced many dubious judgments. Moreover it has a strong tendency toward leftism and subservience to external forces in relation to Poland”, Law and Justice leader Jarosław Kaczyński said in an interview in 2017, adding that it was necessary to carry out a wide-ranging reconstruction of the court system, in terms of both structure and personnel.^[20]

Under the reform of the KRS, two chambers were created within that institution, and the terms of office of its existing members were terminated. The new law changed the procedure by which judges are elected to the KRS. They are now elected by the Sejm, and not, as before, by judges themselves.  The reform restored the principle of a tripartite division of powers, which requires mutual balance and control between the executive, legislature and judiciary.^[21]

As a result of the new act passed in December 2017, the 15 members of the KRS who were formerly elected by judges are now chosen by the Sejm for a shared four-year term of office. In their election, account is taken as far as possible of the need for representation on the council of judges of different types and from different levels of the court system. Candidates may be put forward by groups of at least 2000 citizens or 25 judges (excluding retired judges). The Sejm elects members of the KRS by a three-fifths majority, voting on a list of candidates drawn up by the competent parliamentary committee, which must contain at least one candidate nominated by each parliamentary party that proposed such a candidate. In case of failure to elect members of the KRS by this procedure, the Sejm elects them by an absolute majority of votes in the presence of at least one-half of the statutory number of MPs. Council meetings are broadcast on the Internet, unless the council adopts a resolution to hold a closed session due to the possible disclosure of protected information or breach of an important private interest through the disclosure of personal data.

The granting of the right to nominate candidates for the council to both judges and ordinary citizens, as well as the transparency of the election and the independence of the council members, which results from the principle of judicial impartiality, provide a guarantee of the autonomy of the KRS.^[22]

“Today the KRS is one of the most transparent institutions, its deliberations and the questioning of candidates for the Supreme Court are open and accessible to everyone”, prime minister Morawiecki commented in relation to the effects of the changes.^[23]

 

About the Supreme Court

The Supreme Court is the body of judicial power that provides oversight over the common and military courts with regard to their judgments. It protects the rule of law and social fairness in the dispensing of justice, as well as considering disciplinary matters as specified by law. Its tasks also include considering electoral protests, including those concerning elections to the European Parliament, and confirming the validity of elections to the Sejm and Senate, presidential elections and national and constitutional referendums. Laws have been passed which make significant changes to the internal structure of the Supreme Court.

Another set of changes serve not just to improve the court’s functioning, but above all to democratise the process by which its judges are appointed. One of the most important elements of the changes to the Supreme Court is the reform of the disciplinary system for judges, prosecutors, court enforcement offices, notaries and members of other legal professions, through the creation of a new autonomous Disciplinary Chamber within the framework of the Supreme Court. In cases concerning extraordinary appeals and in disciplinary matters concerning Supreme Court judges, judges will give rulings assisted by lay judges, chosen by the Senate.^[24]

This is a significant move towards public representation, since previously lay judges sitting in the Supreme Court did not take part in the issuing of judgments. The Supreme Court has become, as a result of the changes, a completely new court both organisationally and functionally. Such a large change in an institution also necessitates personnel changes, including the retirement of Supreme Court judges who were appointed under the old regulations. The previously existing four chambers of the Supreme Court were replaced with three: a Public Law Chamber, a Private Law Chamber and a Disciplinary Chamber. The last of these hears all disciplinary cases pursuant to the regulations governing the work of judges, prosecutors, advocates, legal advisors and notaries. It also considers cases relating to employment and social security law with respect to Supreme Court judges, and cases relating to the retirement of such judges. A Supreme Court judge may now be, among others, a person who has had at least ten years’ professional experience as a judge, public prosecutor, advocate, legal advisor or notary. The post may also be sought by persons with the academic title of professor or a post-doctoral (habilitation) degree in law. Any person who fulfils the criteria laid down in the act may submit their candidacy to the National Judicial Council (KRS) following the announcement of vacant positions in the Supreme Court. Supreme Court judges are appointed by the President on a proposal of the KRS.

The new law also allows the minister of justice, on a proposal of the First President of the Supreme Court or the President of the Disciplinary Chamber, to delegate any judge with more than ten years’ experience to work in the Supreme Court.

Under the new regulations a Supreme Court judge retires at age 65, and in the case of women may do so at age 60. The previous retirement age was 70. Nonetheless, if a judge expresses the desire to continue in office and presents a suitable health certificate, the KRS may consent to this, after obtaining the opinion of the justice minister^[25]. The final decision on extending a judge’s time in office to age 70, as well as on the appointment of a new member of the Supreme Court, is taken by the country’s President. Of the 120 judges who were to serve in the Supreme Court following the reform, on the day on which the changes came into effect there were 74 working Supreme Court judges, of whom 27 were already aged 65 or over. President Andrzej Duda thus had the possibility of nominating as many as 60% of the judges of the reformed Supreme Court.

However, in response to a temporary ruling of the European Court of Justice, to which a complaint had been made by the European Commission, in December 2018 Poland’s parliament approved a revision of the law reforming the Supreme Court. This restored to the bench all of the Supreme Court judges who had previously been compelled to retire due to the lowering of the retirement age for judges from 70 to 65. The new retirement age will thus apply only to judges appointed to the Supreme Court after the reform introduced by Law and Justice came into effect.

The law on the Supreme Court also provides for the possibility of lodging extraordinary appeals against final judgments from the past five years. Any party who believes that they were the victim of an unfair judgment, upheld in all instances, will be entitled to have the case re-examined. The law provides for such action in three circumstances: when the judgment violates the principles, freedoms and human and civic rights laid down in the constitution, when it is in gross violation of the law due to erroneous interpretation or inappropriate application, or when the court’s findings are manifestly inconsistent with the evidence in the case^[26]. Under the amended law of May 2018, an extraordinary appeal against a judgment may be brought only by the Prosecutor General or Civil Rights Ombudsman (the right had previously also been given to the president of the General Prosecution Office, the Children’s Ombudsman, the Patients’ Ombudsman, the chair of the Financial Supervisory Commission, the Financial Ombudsman, the Small Business Ombudsman, and the chair of the Office of Competition and Consumer Protection).^[27]