The beginning of 2020 was filled with optimism, caused by the ‘march of the thousand robes’ on the 11th of that month in Warsaw and the resolution of 23 January 2020 issued by the Polish Supreme Court giving judges of Poland’s ordinary courts a tool in the form of a ‘test of independence’. By the end of the year this optimism has burst like a bubble, turning into a feeling of bitterness. The ruling camp in Poland used the whole of last year to circumvent or disregard the actions of the bodies of the European Union intended to protect the independence of the Polish judiciary, and to simultaneously deepen the process of its political subordination. The feeling of bitterness is deepened by the passive attitude of the European Commission, which is not fulfilling its obligations as guardian of the treaties.
I was filled with optimism in early January 2020 in Warsaw, when judges from over twenty European countries, as well as Turkey, came to Warsaw for the march of thousand robes to support their Polish colleagues in their five-year-long battle to preserve the independence of the Polish judiciary. The sense of togetherness with European judges and simultaneously belonging to the circle of European legal culture that I experienced then is a priceless and unique experience. Taking this opportunity, I would like to thank the members of the large delegation of Dutch judges who were present in Warsaw on that unforgettable day.
I felt even more optimistic when, two weeks later, three joined chambers of the Polish Supreme Court issued the resolution of 23 January 2020 giving judges of Poland’s ordinary courts a tool in the form of a ‘test of independence’ enabling the removal from legal circulation of judgments issued by judges appointed with the participation of the neo-NCJ that did not meet the criterion of independence from the political authority, if the circumstances of their appointment suggest that they are not independent judges within the meaning of European law and the ECHR. This same resolution made it clear that the Disciplinary Chamber of the Polish Supreme Court is not a court. It is difficult not to mention that this resolution was passed in the implementation of the CJEU ruling of 19 November 2019, which – in response to the question referred for a preliminary ruling by the Polish Supreme Court – confirmed that bodies such as the NCJ and the Disciplinary Chamber must be independent of the political factor, and indicated the detailed criteria for assessing their independence. Less than three months later, this assessment was confirmed in the CJEU ruling of 8 April 2020, which suspended the functioning of the Disciplinary Chamber.
These rulings of the Polish Supreme Court and the CJEU have accurately identified the enormous threat to the independence of the Polish judiciary posed by entrusting the fate of Polish judges to two politicized committees. The first is the neo-NCJ, which decides who will become a judge and which judge will be promoted to a more senior position, while the second is the Disciplinary Chamber of the Supreme Court, which ultimately decides to discipline judges, which includes the possibility of removing them from the profession.
Had the Polish government complied with the above rulings of the Polish Supreme Court and the CJEU, I would not have been worried about the future of the Polish judiciary. Unfortunately, the response of the Polish government took away all of my illusions that it intends to respect the decisions of the highest judicial authorities of Poland and the European Union, or to be guided by the principles of sincere cooperation and the primacy of European law. On the contrary, the Polish government used the bodies of legal protection subordinated to it in breach of the constitution and European law to launch a decisive legislative and disciplinary offensive intended not only to defend the unlawful status quo, but also to increase the politicization of the judiciary.
This is neither the time nor the place for a detailed description of all the unlawful actions taken against the Polish judiciary last year,1 as their scale exceeds the size of this article. I will just mention the most important of them, such as:
– the introduction of the ‘muzzle act’, which, inter alia, prohibited Polish judges – under the threat of being removed from the profession – from questioning or even examining the legal status of the Disciplinary Chamber and the neo-NCJ, as well as judges appointed with its participation, incapacitated judicial self-governing bodies (by depriving them of their right to take part in the public debate about the judiciary and the right to participate in the process of nominating and promoting judges), made it possible to elect the First President of the Supreme Court, who is subordinated to the executive;
– the initiation of disciplinary proceedings against all judges (21 to date) who in any way tried to implement the CJEU judgment of 19 November 2019 or the resolution of the joint chambers of the Supreme Court of 23 January 2020, or even in any way questioned the legal status of the neo-NCJ, or the Disciplinary Chamber (the culmination of which is the suspension of judge Juszczyszyn from office which was achieved in breach of procedural and substantive law); the fact that these actions had a strong chilling effect among Polish judges is best evidenced by the fact that only two Polish judges adjudicating in appeal divisions decided to conduct an independence test in accordance with the resolution of the Supreme Court of 23 January 2020;
– circumvention of the interim measure of the CJEU of 8 April 2020 by using the Department of Internal Affairs of the National Public Prosecutor’s Office directly subordinated to the Minister of Justice, as well as the politicized Disciplinary Chamber of the Supreme Court to initiate unjustified criminal proceedings and remove defiant judges from practicing their profession by lifting their immunity and the related suspension from the office and reduction of their salaries (this happened to two icons of the judiciary’s resistance, i.e. the president of ‘Themis’, Beata Morawiec, and an active member of ‘Iustitia’, Igor Tuleya);
– instituting collective disciplinary proceedings against members of the boards of judicial organizations or judges who are active in the public debate to an extent that is fully consistent with the ethics of the judicial profession (proceedings against the board of ‘Iustitia’, the standing presidium of the ‘Judges Cooperation Forum’, and 1274 judges-signatories of the letter to the OSCE);
– instituting collective disciplinary proceedings by politicized disciplinary commissioners (applies to several judges who issued procedural decisions in the criminal case of former Deputy Prime Minister Roman Giertych) and criminal proceedings by the Internal Affairs Department of the National Public Prosecutor’s Office (applies to fourteen judges from Krakow who issued procedural decisions in the case of the reinstatement of the rebellious prosecutor Krasoń) against judges who handle ‘sensitive’ cases, where it is obvious that the actions they take have the intention of putting pressure on judges to issue decisions in pending cases, which are favorable to the ruling camp;
– the use of the politically subordinated Constitutional Tribunal to formally invalidate the resolution of the joint chambers of the Supreme Court of 23 January 2020, which the Tribunal did in the ruling of 20 April 2020, holding that this resolution was allegedly inconsistent with European law and the Polish constitution; such a decision was made by the politicized Tribunal, even though it is not authorized to assess the validity of court judgments and even though the contested resolution was issued in accordance with the CJEU ruling of 19 November 2019, thereby constituting an implementation of European law;
– the activities of the neo-NCJ, which makes decisions, without any embarrassment, on the promotion of judges based on non-substantive criteria, and recently outdid itself by promoting a candidate to the position of judge in the Regional Court in Olsztyn, whose only advantage over substantively better candidates was the payment of € 3,000 to the Law and Justice party’s election fund.
As can be seen from the above description, the ruling camp used the whole of last year to circumvent or disregard the actions of the bodies of the European Union intended to protect the independence of the Polish judiciary, and to simultaneously deepen the process of its political subordination, in one way or another. The summary of these actions is the public announcement made in December 2020 by Jarosław Kaczyński, the leader of the ‘Law and Justice’ party, about the intention to introduce the re-appointment of judges of ordinary courts under the pretext of reorganization as the next stage of the pseudo-reform of the judiciary. This will enable judges to be removed from the profession if they have shown that they do not intend to be subservient to the political au thority. As if to confirm these plans of the government coalition leader, a ‘proscription list’ with the names of twenty activists of judges’ associations, who are to be removed from the profession in 2021, appeared on the last day of December 2020 on the Twitter account #Kasta-Watch, which is still an active tool of the famous ‘troll farm in the Polish Ministry of Justice’.
The events described above mean that the feeling of optimism described at the beginning of my article, initiated by the wonderful atmosphere of the ‘march of 1000 gowns’, burst like a bubble at the end of the year, turning into a feeling of bitterness, which is deepened by the passive attitude of the European Commission, which in my opinion is not fulfilling its obligations as the guardian of the treaties. For reasons that I do not understand, the European Commission did not recognize the proceedings to waive the immunities of judges conducted by the Disciplinary Chamber of the Supreme Court as a breach of the CJEU interim measure of 8 April 2020, even though these proceedings remove judges from their profession and reduce their salaries, which constitutes sanctions of a disciplinary nature.
Despite this, I am not going to give in, especially since the attitude of both Polish judges and our European colleagues who support us at every opportunity (if only to mention the letter sent to the European Commission in December 2020 for further action on the Polish judiciary signed by over 5.200 judges from all over Europe) nevertheless give grounds for optimism. As one of the many Polish judges who faced both administrative and disciplinary harassment because of actions taken in defense of the independence of the judiciary, I feel entitled to present postulates that may improve the future of the Polish justice system. These postulates should be close to the heart of every European judge who is aware that the European legal system operates on the basis of the principle of communicating vessels. Therefore, undermining the in dependence of the judiciary in any of the Member States undermines the integrity of the whole of the European community, which is no longer a single area of freedom, justice and security.
Moreover, I am well aware that the destruction of the guarantees of the independence of the Polish judiciary has already gone so far that only immediate and decisive action can prevent its complete political subordination. The activities listed below constitute the list of my postulates:
1) the European Commission should urgently request the ECJ to order the payment of a fine for the continuing violation of its interim measures of 8 April 2020 in order to prevent the Disciplinary Chamber from proceeding with any activities until the final decision of proceedings in Case C-791/19;
2) the European Commission should show much more determination and consistency in continuing the infringement procedure with respect to the Muzzle Law, which, in many aspects, directly violates judicial independence;
3) the European Commission should start new infringement procedures against Poland for the breach of EU Law as recommended by the European Parliament in its resolution of 17 September 2020, regarding:
– the politicized Constitutional Tribunal which supports the Polish government in the process of destroying the rule of law, the members of which include people who are not authorized to adjudicate;
– the politicized National Council of the Judiciary, which is pumping judges into the judiciary according to the criterion of political loyalty instead of merits;
4) additionally, the European Commission should consider starting infringement proceedings with respect to the Internal Affairs Department of the State Prosecution Service, which is directly subordinated to an active politician of the ruling camp, the Minister of Justice, and which is co-responsible for the suspension of Judges Morawiec and Tuleya; according to the opinion of Advocate General Michał Bobek (in joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, and C-397/19) the establishment of such a special prosecutorial unit with exclusive jurisdiction for offences committed by the members of the judiciary may be in conflict with EU law, especially if it is not justified by genuine and valid reasons and if it does not meet the requirement of being independent of politicians;
5) last but not least, the immediate reinstatement of Judges Beata Morawiec, Igor Tueya and Paweł Juszczyszyn who were unjustifiably suspended by the illegal Disciplinary Chamber.
Many people may think I’m just a dreamer. Fortunately, the march of thousand robes and the recent letter of five thousand European judges and prosecutors have proved that I’m not the only one, which gives hope and strength.
Dariusz Mazur is a judge adjudicating in the Third Criminal Division of the Regional Court in Krakow. He specializes in international co-operation in criminal matters and protection of Human Rights. As a lecturer on these matters he works with the Polish National School of Judiciary and Public Prosecutors, and with European Judicial Training Network (EJTN). He is a spokesperson of the ‘Themis’ Judges’ Society (the second biggest association of judges in Poland). This article is published in NJB 2021/204, afl. 3.
- For a more detailed version see https://themis-sedziowie.eu/wp-content/uploads/2021/01/Themis_From-bad-toworse_ang.pdf.