Poland and the EU: A judicial “Kill Bill”?

As the coronavirus continues to spread and make headlines all over the world, we may tend to forget the top stories that, only a few weeks ago, grabbed all the attention. This includes the years-long political tensions between Poland and the EU regarding the contentious issue of the Polish judicial system and the reforms passed by the government since first coming to power in 2015.

In February this year, Polish President Andrzej Duda signed the controversial bill on the disciplining of judges, allowing the executive power to impose fine or even dismiss judges in case of so-called “harmful” decisions, as well as the ability to reform the nomination process of the head of the Supreme Court.

The bill, which according to Justice Minister Zbigniew Ziobro is meant to “restore a normal state of affairs in Poland’s justice system”, has been criticized for undermining the rule of law, checks-and-balances and threatening judicial independence by the Polish opposition, as well as the European Commission, the U.N’s Human Rights Office, the Council of Europe and Poland’s Ombudsman, among others.

This law is only the latest development in the ongoing struggle over judicial reforms and ensuing constitutional crisis which was sparked ever since the rise to power of the Law and Justice (PiS) party in 2015. Time to delve deeper into this issue, often obscured by the judicial jargon and political rhetoric.

Judicial reforms in Poland: Fighting corruption or authoritarian power grab?

Let’s first take a quick step back. In 2015, the right-wing conservative Law and Justice (PiS) party came back to power after spending eight years in opposition. Jaroslaw Kaczynski’s political party won over 37% at the Sejm, Poland’s lower house of Parliament, and the absolute majority in the Senate.

Founded in 2001 by the twin brothers Kaczynski (Lech, who served as President, died in the 2010 Smolensk plane crash) as a conservative, Christian and soft-Eurosceptic party, it has been described as the Polish counterpart of the Hungarian party Fidesz, whose own track-record on rule of law and judicial independence is somewhat tainted, to say the least. This position was explicitly claimed by Jaroslav Kaczynski himself, when Poland’s current de-facto leader said: “One day, there will be Budapest in Warsaw”.

Judicial reforms have been one of the pillars – and arguably the most divisive one to date – of PiS’ self-proclaimed agenda to overhaul and modernize Poland, fight corruption and get rid of the legacy of both the communist era and the post-communist years, marked by countless scandals, fraud cases and systemic issues dealing with the court’s inefficiency.

According to PiS politicians and lawmakers, the reforms of the judicial system is necessary to improve its efficiency and strip it from the lingering remains of communism – a rhetoric and argument that, according to political pundits and commentators, were key to bolster PiS’ social and caring image towards the less privileged vs. an entrenched political and judicial establishment who were, allegedly, struggling at all costs to cling to their status, position and privileges.

But whether PiS is sincerely concerned about getting rid of the judicial system’s shortcomings or using it as an excuse to politicize the courts, tighten its grip on the justice system and grabbing more power for itself, is one of the most crucial questions that has been dividing Polish – and European – public opinion over the past few years.

The reform of the Constitutional Tribunal

It all started one month before the end of former President Komorowski’s term (Civic Platform, PO), when five judges were elected on the Constitutional Tribunal for a 9-year mandate by the Sejm, the Polish Parliament’s lower, and most powerful house. Stating that it would lead to the election of 14 out of 15 judges by the Civic Platform, current President Andrzej Duda (PiS) refused to swear the judges into office.

To solve the legal-political battle, Duda signed a constitutional reform law overhauling the decision-making process of the Constitutional Tribunal, while allowing the Sejm to annul the nomination of several judges appointed by the previous government and shortening the terms of the Tribunal’s president and vice-president from nine to three-years. The following year, the Tribunal openly rebelled against the bill, declaring it contrary to the Polish Constitution – a decision the executive refused to consider as valid to push through its reform.

The reform of the Supreme Court’s retirement rules

The Polish reform of Supreme Court judges is another key legislation in the judicial overhaul. In 2018, a new law on the Supreme Court came into force, lowering the retirement age for Supreme Court judges from 70 to 65 but allowing the Polish President to extend judges’ term for five years to whom he wishes.

This controversial law was challenged by the EU Commission before the European Court of  Justice for violating the principle of judicial independence, and was seen as a way to oust judges – in charge, among other duties, of overseeing election results – that were not loyal to the current leadership. The EU’s top court confirmed, in a 2019 ruling, that Poland’s bill lowering the retirement age of Supreme Court judges was contrary to EU law, and had previously, in an interim decision, ordered over a dozen judges that had already been dismissed to be reinstated.

The reform of Poland’s disciplinary chamber

Another 2017 reform changed the election process of the members of Poland’s judicial disciplinary panel. Being formerly chosen by their peers, disciplinary magistrates are now chosen via the lower Chamber of the Polish parliament, dominated by the ruling Law and Justice party.

Moreover, this new law would give the Minister of Justice extensive power to appoint and control the work of this disciplinary panel, in charge of launching the investigation and conducting the hearings against judges who could be sanctioned for their court rulings – usually, according to critics, judges who have questioned the government’s judicial reforms and turned to the European Court of Justice. poland judicial reforms

The European Commission also launched last year legal action against this reform that would “systematically subject judges to the political control of the executive” branch, according to EU Commission Vice-President Frans Timmermans. And earlier this month, the ECJ said that Poland had to suspend the disciplinary chamber over concerns to its independence. Poland has one month to comply or face possible fines.

The various reforms, along with others restructuring the entire Polish judicial system to reduce it from four to three levels of courts, or the overhaul of the National Council of the Judiciary (KRS) responsible for the appointment of most judges, have fueled growing tensions between Poland and the EU and the triggering of the so-called article 7 procedure for serious breach of European values, that could theoretically strip Warsaw from its voting right. The Polish Supreme Court even warned that Poland may have to leave the EU if these reforms continue.

Some changes on the Eastern front?

Some voices have expressed worries against the “Putinisation” of Poland’s judicial system and the existence of a so-called “Putin-Orbán-Kaczynski logic” qualified as “illiberal democracies” that pose a grave threat to the core values on which the EU is built. Others have argued that the EU is unnecessarily meddling in Polish domestic affairs and undermining the work of a democratically elected government, or a “modern-day Brezhnev doctrine of limited sovereignty”, as the U.K.’s Nigel Farage colorfully called it.

Beyond the escalation of words, one can only hope for sensible bilateral talks to solve the issue and say, with Lithuanian Foreign Minister Linas Linkevičius, that “dialogue is very complicated but […] ultimatums and strong reactions will not help to solve this issue”. The use of article 7 may be a strong signal sent to Poland, but an ultimately clumsy one, antagonizing Eurosceptics for little gain, considering it needs a unanimous approval of all EU members, and that both Poland and Hungary have repeatedly vowed to defend one another.

However, self-professed “illiberal” democracies, despite the concerns they can spark and threats they can pose to EU values, can also teach us lessons, lessons to build a common European space that, in the long-run, will necessarily have to take their views into account. Due to their past history, European countries, be it Poland, Hungary, France, Germany or others, can have widely diverging understandings of what concepts such as “sovereignty” means, or what the EU’s purpose ultimately is.

And although the issue of rule of law is now – or was, not so long ago at least – making headlines in the region, one shouldn’t forget that the EU’s prerogatives extended to these issues only quite belatedly, and that the European Union was not first and foremost founded on this ground.

A multi-faceted and extremely complex issue which, above everything else, won’t be solved by continuous political dueling but by a clearer understanding of one’s neighbour’s views and a never-ending commitment to work together towards a shared consensus.

Written by Jacques Bellezit

Former student of the Law Faculty of Strasbourg, Jacques Bellezit is interested in politics, law and culture. He’s currently working and living in Prague to gain professional experience before going back to other adventures.