This post originally published via the Ordo Iuris Institute for Legal Culture
Polish Prime Minister Donald Tusk and his Justice Minister Adam Bodnar presented on Sept. 6 the basis for a draft law on the status of judges who were appointed or promoted to higher positions after 2018.
Under the planned arrangements, only judges for whom this was their first appointment after graduating from the National School of Judiciary and Public Prosecution will retain their status. Those judges who were promoted to higher positions after 2018 will be treated differently. The promotions of some of them will be revoked three months after the law takes effect, and they will be reinstated to their previous positions. They will also be subject to disciplinary procedures. Other judges who have been promoted, in order to remain in office, will have to make a statement that they regret their decision. They will then return to court and be able to compete for various positions.
The announced bill, supposedly aimed at “restoring the rule of law” after the justice reforms introduced by the Law and Justice governments (voted by the Polish parliament in 2017), would affect about a third of Poland’s judges. Regardless of the announced draft law, since the beginning of the year, there has been a wave of personnel changes made by Minister Bodnar at the head of the country’s most important courts, often under questionable legal conditions, and after taking control of the prosecution service nationwide following the unlawful replacement (done without the required approval of the President of Poland) of the National Prosecutor.
The proposals announced by Tusk and Bodnar on Sept. 6 were said to be supported by the country’s legal community. However, a number of Polish legal organizations have issued a statement strongly opposing the planned changes, pointing out that it is an attack on the independence of the courts and the independence of judges. Here is their full statement:
This is the common position of the Polish legal profession on Sept. 9, 2024 regarding the announcements by the Prime Minister and the Minister of Justice, on a planned law, which will lead to the demotion of part of the judges or their removal from their profession.
We, the representatives of the Polish legal profession, strongly and with the utmost indignation protest against the announcements that have been made by the Prime Minister and the Minister of Justice concerning repressive measures – including demotions and expulsions from the profession – that will be taken against approximately 3,500 judges in the Republic of Poland.
The assumptions behind this act, which was presented on Sept. 6, 2024 by Prime Minister Donald Tusk and Minister of Justice Adam Bodnar, constitute an unacceptable attack by the executive branch on the independence of the judiciary as well as the independence of judges in the Republic of Poland. This is because, under the slogan of restoring the “rule of law,” this government intends to violate the constitutional principle of the irremovability of judges and, through the vetting procedure, to render the ability to remain in office of many constitutionally-appointed judges directly dependent on the decisions of government politicians.
The democratic systems of the European states are based on the principle of the tri-partite division of powers, which was developed in the 18th century. According to this principle, judicial power stands equal to legislative and executive power, yet is at the same time independent from them; i.e., judges are independent in their judicial activities. The Constitution of the Republic of Poland, which was adopted by the National Assembly on 2 April 1997, was likewise built on such foundations.
On Sept. 6, 2024, the executive branch, as represented by the head of the Polish government Donald Tusk and Minister of Justice Adam Bodnar, announced an unprecedented purge of the judiciary, involving removal from the judicial profession altogether or the demotion of part of the judges by adopting the arbitrary criterion of the date on which they had received their judicial appointment.
At the same time, the executive branch announced an arbitrary differentiation of the legal status of those judges who had received presidential judicial appointments after 2017 by classifying them according to stigmatizing subcategories based on discriminatory criteria. In some cases it was announced that the executive branch’s pressure would be relinquished (with regards to judicial assessors), while in others attempts are being made to intimidate judges by announcing disciplinary proceedings against them before collegial commissions that are to be newly established by the executive.
In the cases of a significant proportion of these judges, the government intends to demand formal statements of obedience to the executive (in the form of self-criticism, which has been dubbed “active contrition” by the Minister of Justice) as a condition for remaining within the judiciary.
Self-criticism by judges will only give an illusory character to their professional independence. Polish citizens – especially in cases involving disputes with state authorities – will undoubtedly lose confidence in the judiciary once it is packed with submissive judges.
The demand for an act of contrition from these judges by the Minister of Justice, in the form of “active contrition” – a concept taken from the norms of criminal law and which is intended for compliant criminals – should be seen as obvious blackmail, which will lead to a breach of judicial independence as well as a situation in which only those who will accept this violation of the Constitution and a new dependence on the executive branch will remain in the profession.
The ostensible justification for the application of these measures, including the requirement for judges to submit to a process of self-criticism before the Prime Minister, the Minister of Justice, and the executive branch’s collegial tribunal is the government’s questioning of the competition proceedings which were held for judicial appointments after 2017. Nevertheless, not only were these proceedings characterized by a transparency previously unknown in Poland, but above all they were based on statutorily-defined procedures. In the end, judicial appointments are made by the President of the Republic of Poland, who in doing so exercises his exclusive constitutional prerogative.
Such an arrogant and autocratic attempt to subordinate the judiciary to the executive branch has not been seen in the history of civilized European states since World War II. The proposed solutions not only contradict the very foundations of the Polish Constitution, but also the civilizational standards from which the so-called values of the European Union are supposedly derived. The domination of the executive over the judiciary is typical of satrapies and dictatorships. This is the direction in which the Polish government is currently heading.
The effect of these actions by the executive will be not only the commission of a constitutional tort, which in the future will form the basis for the culprits’ liability before the State Tribunal, but there will also be measurable damage to the Polish state’s functioning.
The tribute demanded from these judges as an acknowledgement of the domination and supremacy of the executive over the judiciary has no precedent since the time of the communist dictatorship. It was during the Stalinist reign of terror, both in the Soviet Union as well as in Soviet-occupied Poland, that individuals were broken and forced to pledge their loyalty to the party’s ideology by submitting to so-called self-criticism, which was usually carried out before special committees that were set up for this purpose.
We cannot lose sight, when it comes to the Polish justice system’s operations, of the history of Polish citizens who have been subjected to repression for opposition activities. In this context, we draw attention to the provisions of the Act of Feb .23, 1991, when it was recognized that judgments issued against persons who had been repressed for activities which called for an independent Polish state were invalid. This act is still in force in Polish law. Proceedings based on its provisions are still pending, specifically concerning the procedural decisions of the judicial authorities which were made during the period from Jan. 1, 1944 to Dec. 31, 1989 for the purpose of harming those persons who acted in favor of Polish independence.
Behind these sentences are specific judges who have never been held accountable or verified. But even in these cases, no self-criticism or other act of expiation has been demanded from such individuals.
The purges that have just been announced – i.e., the demotion of judges and their removal from public service – not only interfere with the constitutional guarantee of judges’ irremovability from office, but will plunge the entire justice system into chaos for decades. Already in some courts and in some types of cases, the involved parties have been waiting for years merely for a trial date.
It is with regret and concern that we note that the government’s announcements are a manifestation of the most radical demands, which until now had only been expressed in political struggle and in the media. By normalizing this peculiar coup d’état, judges who are known for their political activism, including those in the “Themis” and “Iustitia” associations, are taking an active part. Characteristically, among those judges who are endorsing this attack on the independence of the courts and the judiciary are government-salaried persons who currently hold prominent positions within the Ministry of Justice.
Numerous authors from various organizations authored this article, including Prosecutor Andrzej Golec from the Independent Association of Prosecutors (Ad Vocem) in Jaworzno; Judge Zygmunt Drożdżejko of the The National Polish Association of Judges (Sędziowie RP) in Cracow; Advocate Jerzy Kwaśniewski of the Ordo Iuris Institute for Legal Culture in Warsaw; Judge Łukasz Piebiak of the the Association of Lawyers for Poland in Tarnowskie Góry; and Advocate Krzysztof Wąsowski of the Warsaw Seminar on the Axiology of Administration in Warsaw
