Kaczyński directly announced a purge among judges for the first time
Mariusz Jałoszewski, OKO.press, 22 December 2020
Link to the original publication in Polish:
PiS Chairman Jarosław Kaczyński talks about the ‘replacement’ of judges in Rzeczpospolita, which, in practice, means the reorganisation of the courts in Poland and the verification of judges. This will also include the Supreme Court, over which the Law and Justice party (PiS) has not yet taken full control.
PiS Chairman Jarosław Kaczyński announced the completion of the ‚reforms’ in the justice system in an interview with the Rzeczpospolita daily, which was published on 21 December. Kaczyński devoted a part of his interview to the courts.
When asked by ‘Rzeczpospolita’ journalist Michał Kolanko whether the next stage of changes in the courts will take place shortly, the PiS Chairman answered:
‘There will be changes in the judiciary; this is an internal matter for Poland. We never wanted to undermine the independence of the judiciary, because that would be a real breach of European principles.
We only want to remove the phenomenon that courts in Poland are politically dependent on the opposition (…). These courts are politicised; they are on the other side. Poland will need normal courts that stick to the law.’
Kaczyński: we shall replace judges
Kaczyński said in the interview that voters are complaining about the courts because they are working slowly. He did not add that Minister of Justice Zbigniew Ziobro has had five years to correct this. Meanwhile, the wait for the court to issue a ruling under his government has lengthened. Because the Minister of Justice focused on the replacement of personnel in the courts and the subordination of successive parts of the judiciary to the authority.
Kaczyński justified the progressing collapse of the justice system by the actions of the European Commission regarding matters of the rule of law. Kaczyński also said in the interview:
‘The judges have to recognise the Polish Constitution and recognise the equality of citizens. Of course, there are also good judges who do their job reliably, but a reform is necessary.’
‘So will it be a replacement of judges, or a change in procedures and the system?’ asked Rzeczpospolita’s journalist.
The PiS chairman answered: ‘Procedures, but also to some extent – there are full grounds for this in the Constitution – a replacement of judges. There cannot be corporationalization of the state apparatus in Poland. The judiciary as a corporation is today practically outside the state.’
Kaczyński added that the ‘reforms’ still need to be discussed within the coalition and with the president. The PiS chairman also made the assurance in the interview with Michał Kolanko that his private lunches with the president of the constitutional tribunal, Julia Przyłębska, have no influence on the judgments issued by that tribunal (the majority are advantageous for the authorities).
Ziobro is ready for a final showdown with the judges
The announcement of the completion of the ‘reforms’ in the courts is in line with what Minister of Justice Zbigniew Ziobro said at a press conference at the end of November. The minister then admitted that his ministry has prepared ‘draft laws on the broadly understood judiciary, regarding the ordinary judiciary, the Supreme Court, but also other side-line, but important aspects of the operation of replacing the judiciary related to these main projects.’
Ziobro also said that he was just waiting for the green light from the ruling coalition to put them to the vote in the Sejm.
The fact that PiS wants to take full control over the justice system has been loud and clear for two years. Jarosław Kaczyński was already sending out such signals before the parliamentary elections in 2019. Ziobro also spoke about this.
PiS needs full control over the courts, because this is one of the last independent areas of state activity. The take-over of the courts will give PiS full uncontrolled power. This authority does not need independent courts; in fact, they are treated as the last barricade to be overcome. All the more so because, in recent years, the judges have shown that they will defend the rule of law and independence to the end, even at the cost of repression.
Judges have also shown their independence in the courtrooms by issuing judgments that the authorities do not like. Like Judges Igor Tuleya and Paweł Juszczyszyn, who have been suspended for their judgments.
Or like the Kraków judges, whom the prosecution service is summoning for questioning for favourable decisions for the repressed prosecutor, Mariusz Krasoń.
Or, after all, like the judges from Poznań, who crushed the actions of the prosecutor’s office in the case of attorney Roman Giertych, which resulted in an attack by National Prosecutor Bogdan Święczkowski on them.
Stages I and II of taking control over the administration of justice
The PiS authority has spread the take-over of the justice system over several stages. Immediately after winning the parliamentary elections in 2015, it started by taking over the Constitutional Tribunal. Because the Tribunal examines compliance of regulations with the Constitution. And PiS wanted to turn off this ‘safety switch’ in order to be able to pass any law it thought up. And it succeeded in doing this. It has its president, Julia Przyłębska. It also filled the Constitutional Tribunal with its nominees. And today, the Tribunal frequently passes such judgments as the authorities would like.
The independent prosecutor’s office was simultaneously taken over. It was headed by Zbigniew Ziobro, while the management positions were taken over by his followers. Mass purges were also conducted at senior level in the prosecution service. Experienced and independent prosecutors were degraded. In the second stage, PiS took control over:
- The National Council of the Judiciary, which makes decisions on judicial promotions. The old legal Council was dissolved during its term of office despite the Constitution, while the new Council was elected in 2018 by MPs from the PiS and Kukiz’15 parties. Many of the judges elected to it decided to cooperate with PiS. The Council elected in this way often gives promotions to its judges.
- Management of the courts. PiS passed a law allowing Minister Ziobro to make a great purge in the management positions of the ordinary courts. Trusted judges were often appointed presidents and vice-presidents.
- Part of the Supreme Court. In 2018, PiS wanted to take over the NCJ, the managerial positions in the courts and the Supreme Court in one foul swoop. It succeeded with the NCJ and the presidents, but the power struggle was cut short at the Supreme Court. PiS then wanted to get rid of the president of the Supreme Court, Małgorzata Gersdorf (during her term of office) and send older judges on a forced retirement to make room for new ones. However, this was stopped by the protests of the citizens, which delayed the purge of the Supreme Court.
PiS then enacted the establishment of two new Supreme Court chambers – the Chamber of Extraordinary Control and Public Affairs and the illegal Disciplinary Chamber, which is supposed to help remove rebellious judges and prosecutors from the profession. The new NCJ filled both chambers. The Disciplinary Chamber has many of Ziobro’s colleagues and supporters of the authority.
Stage III – verification of all judges
The latest announcements from PiS Chairman Jarosław Kaczyński and Minister Ziobro apply to the third stage of taking control over the justice system. This means taking control of all the ordinary courts in Poland – and not just managerial positions – and of the whole of the Supreme Court and, as it seems, the administrative judiciary with the Supreme Administrative Court.
This is a major operation that can overturn the entire justice system, demolish it and cause a collapse in the examination of citizens’ cases for many years. Because if PiS takes this option, it will be associated with a major reorganisation of the courts, a change in their structure and a major purge on all judges in Poland.
What it will look like arises from the statements of the PiS chairman, the minister of justice and controlled leaks from this ministry to the media:
Zbigniew Ziobro wants to deal with independent judges in a single move. The Ministry of Justice wants to do this by flattening the structure of the ordinary courts. Instead of the three current levels, namely the district courts, regional courts and the courts of appeal, there would be two new levels. This would mean the liquidation of the current courts and the creation of new ones. Judges will be of an equal status – every judge would be a judge of an ordinary court.
The reorganization of the ordinary courts will open the door for a major verification of all judges in Poland (approx. 10,000). Because they will have to be appointed to new courts.
This means there may not be enough room for independent judges in the new courts, or they may get assigned a long way from home. Some may choose to leave on early retirement. However, the toughest who will remain in the profession and still remain independent will need to expect repression.
PiS is allowed to do this by Article 180, item 5 of the Constitution. This provides that judges are irremovable, but in the event of a change in the system of courts or a change in the boundaries of court regions, a judge may be transferred to another court or retired, namely he may be sent on retirement. And PiS wants to take advantage of this. It was this provision that Jarosław Kaczyński spoke about in an interview in Rzeczpospolita that allows the judges to be “replaced”.
Stage IV – weak and small Supreme Court
It also transpires from the leaks from Ziobro’s ministry that there is a plan to deal with the still independent Supreme Court. Today, PiS already has its own Disciplinary Chamber and Chamber of Extraordinary Control and Public Affairs. President Małgorzata Manowska (Ziobro’s former deputy minister) also heads the Supreme Court, having been appointed by the new judges of the Supreme Court and elected by President Andrzej Duda. But the independent judges from the old Chambers of the Supreme Court – Criminal, Civil and Labour and Social Insurance – are still in the majority in the Supreme Court.
According to the leaks from the justice ministry published in September 2020 by Rzeczpospolita, Ziobro already has a plan to finish off the Supreme Court. Only 20–30 of the current 100 judges would remain in the Supreme Court. The rest could be sent on retirement under the guise of reorganisation.
The Chambers of the Supreme Court are also to be merged. The illegal Disciplinary Chamber may be merged with the old, legal Criminal Chamber of the Supreme Court, which would legalise the people from the Disciplinary Chamber. The old Labour and Social Insurance Chamber is also to be merged with the Civil Chamber. The Chamber of Extraordinary Control and Public Affairs, which was formed by PiS, would still be a separate unit deciding on the legality of elections.
It is not known who would stay in such a shell Supreme Court. However, knowing the intentions of the current authority regarding the courts, it can be assumed that new judges appointed by the new NCJ will probably find themselves in the new Supreme Court. The key to selecting judges who are to remain in such a reduced Supreme Court may be the re-recruitment and verification of all current Supreme Court judges. And the entire operation would take place under the guise of a reorganisation which is permitted by Article 180, para. 5 of the Constitution.
The shell Supreme Court would lose its importance. Today, apart from considering cassations against final judgments, the Supreme Court also issues resolutions interpreting the law. In January 2020, the full membership of the Supreme Court, consisting of judges from the old chambers, issued a historic resolution, stating that the Disciplinary Chamber is not a legal court, while the new NCJ is dependent on the authorities.
Administrative courts also in the sights of the authorities
The authorities are also considering the option of removing the Supreme Court’s powers. As ‘Dziennik Gazeta Prawna’ wrote, the new Supreme Court would no longer deal with cassations (they would be handled by the current courts of appeal or by new courts to be established in their place). This would reduce the importance of the Supreme Court and its influence on the interpretation of the law.
The leaks to the media and Kaczyński’s earlier statements also show that the authorities are thinking of taking control of the previously independent administrative judiciary (it controls the decisions of the authorities), i.e. the voivodship administrative courts and the Supreme Administrative Court, the importance of which is equal to that of the Supreme Court.
PiS has so far not attacked the administrative courts and has not included them in the plans to change the judiciary. But the administrative courts, which were initially far removed from what the authorities did with the courts, have recently also started to defend the Constitution and issue rulings that are displeasing to the authorities.
Kaczyński: Brussels should not interfere with the courts
In an interview for Rzeczpospolita, Jarosław Kaczyński emphasised several times that changes in the courts are an internal matter for Poland. He did this for a reason. Because the assumption of control of the courts by the PiS authorities is the main bone of contention with the EU. It is for this reason that the Union has linked the payment of European funds from the new EU budget to the rule of law criterion.
Will this stop PiS from finishing off the courts? Everything will depend on the position of the European Commission, the European Parliament, the EU leaders and the PiS authorities. The adoption of the rule of law criterion is intended to protect the new EU budget against fraud. In turn, in order to dismiss the Polish veto on the new budget, EU leaders promised that the rule of law criterion would only be implemented after it was examined by the CJEU. It is estimated that this would take up to two years.
If the rule of law criterion is interpreted narrowly, only from the point of view of protecting the spending of EU funds against fraud, PiS can rather sleep peacefully.
However, if it is interpreted broadly, there may be tensions in relations with the EU. When asked about the interpretation of the EU regulation containing the rule of law criterion, Chairman Jarosław Kaczyński already announced that if it is not interpreted in line with PiS’ thinking, then ‘no one has any illusions that we will subordinate anything (…). In any case, we shall not yield. If anyone expects us to change our policy under the threat of taking funds away, they are mistaken’.
And it is in this context that Kaczyński repeated several times that the matter of changes in the courts is a domestic matter for Poland. So the Union should not interfere with this.
However, the implementation of stages III and IV of taking over the courts has to end with a clash with the EU – Brussels will have to react to the breach of the EU’s fundamental values, and one of them is independent courts.