Opinion of Ordo Iuris Institute in regard of judiciary reforms in Poland

This opinion has been prepared in connection with the provisional agreement on a new general regime of conditionality to protect the EU budget, which reflects the dissatisfaction of EU institutions with the directions of judicial reforms in Poland and Hungary.

This opinion presents content and consequences of the abovementioned agreement and explains selected problems related to the reform of the judiciary in Poland carried out in 2015-2020, i.e. the CJEU judgments against Poland, biased position of EU Commission against Poland, changes in the criminal and civil procedure, and controversy over the method of appointing judges.

1. Provisional agreement on a new general regime of conditionality to protect the EU budget

In November the European Parliament and the Council adopted provisional agreement on a new general regime of conditionality to protect the EU budget, which is linked to the next Multiannual Financial Framework (MFF) and the post-pandemic recovery plan.[1]

The agreement, which builds on the Commission’s proposal, establishes rules to protect the EU budget in case of breaches of the principles of the «rule of law» in Member States. According to the draft agreement, the rule of law requires that all public powers act within the constraints set out by law, in accordance with the values of democracy and the respect for fundamental rights as stipulated in the Charter of Fundamental Rights of the European Union and other applicable instruments, and under the control of independent and impartial courts. It requires, in particular, that the principles of legality, including a transparent, accountable and democratic process for enacting law, legal certainty, prohibition of arbitrariness of the executive powers, separation of powers, access to justice and effective judicial protection by before independent and impartial courts are respected (para. 2 of the preamble). The agreement states three examples of indicative cases of breaches of the rule of law: 1) endangering the independence of judiciary; 2) failing to prevent, correct and sanction arbitrary or unlawful decisions by public authorities, including by law enforcement authorities, withholding financial and human resources affecting their proper functioning or failing to ensure the absence of conflicts of interests; 3) limiting the availability and effectiveness of legal remedies, including through restrictive procedural rules, lack of implementation of judgments, or limiting the effective investigation, prosecution or sanctioning of breaches of law (Article 2a of the agreement).

Sanctions may be imposed if breaches of the principles of the rule of law in a Member State affect or seriously risk affecting the sound financial management of the EU budget or the protection of the financial interests of the Union in a sufficiently direct way (Article 3 (1) of the agreement).

The procedure is initiated by the Commission when it has «reasonable grounds» that the conditions of Article 3 are fulfilled i.e. there is a breach of the rule of law affecting the EU’s financial interests or that there is a serious risk of that happening (Article 5 (1) of the agreement). It will then have to carry out an assessment within not less than one month nor more than three months, although the Member State in question may submit observations (Article 5 (4) of the agreement). If the remedial measures proposed by the Member State are not deemed sufficient, the Commission must submit, within one month (Article 5 (6) of the agreement), a proposal to the Council for an implementing act on the appropriate measures, where a decision must be made in no more than three months (Article 5 (7) of the agreement).

While still pending official approval by the Parliament, the new mechanism will enter into force on 1 January 2021 (Article 8 of the agreement). The Commission shall report to the European Parliament and the Council on the effectiveness of application of this mechanism in three years (Article 7a of the agreement).

In the opinion of the Ordo Iuris Institute, the adopted agreement exceeds the powers of the European Union, which is not authorized to interfere in cases reserved to the Member States, which include, in particular, the judicial system. The EU treaties clearly define the catalogue of EU powers and there is no judicial system among them (Art. 3, 4, 6 of TFEU), except power to facilitate access to justice (Art. 67 (4) TFEU).

A similar position has already been expressed in the opinion of the Council Service of the European Union: Respect of the rule of law by the Member States cannot be, under the Treaties, the subject matter of an action by the institutions of the Union irrespective of the existence of a specific material competence to frame this action, with the sole exception of the procedure described at Article 7 TEU.  Only this legal basis provides for a Union competence to supervise the application of the rule of law, as a value of the Union, in a context that is not related to a specific material competence or that exceeds its scope.[2]

Regardless of this, the Ordo Iuris Institute would like to point out to vagueness of the notion of the rule of law. It is defined neither in the Treaties nor in the above-mentioned agreement. Establishing a standard common to all 27 Member States of the European Union, containing specific guidelines on the status of the judiciary, is extremely difficult, if possible at all. This raises the questions such as: whether this common standard requires the existence of a constitutional judiciary? any form of judicial constitutional review? does it assume a specific model for selecting judges ?; excludes the possibility of government and parliament influencing the judges' election process?

As it is well-known, there are various solutions in the Member States in the area of ​​the review of the constitutional law, the manner of selecting judges and court procedures. Harmonisation of the judiciary system within the entire European Union would require profound changes not only in Poland, but also in most Member States, because many of them do not have a constitutional court at all, and the appointment of judges is influenced by the government or parliament (which will be discussed later).

Therefore, in the Ordo Iuris Institute's opinion, these differences should be respected, in line with the principle of the constitutional identities of the Member States (Art. 4 (2) TEU).

2. CJEU case-law in regard of judiciary reforms in Poland

The rulings of the Court of Justice of the European Union in the case of the Disciplinary Chamber of the Supreme Court[3], legislation on the disciplinary liability of judges[4] and on the retirement of some judges of the Supreme Court[5] were, in our opinion, issued ultra vires, i.e. with exceeding their powers. The role of the Court is to interpret EU law, and EU law is silent on how national judges should be elected and on rules of judicial procedure in Member States (Art. 267 TFEU).

Despite that fact, all CJEU’s rulings have been fully implemented by the Polish authorities. Provisions ordering compulsory retirement of current Supreme Court judges in age of 65 or older have been abolished and Disciplinary Chamber of the Supreme Court ceased to consider disciplinary cases against judges.

3. Biased policy of the European Commission in regard of protecting rule of law

In 2017, the European Commission initiated proceedings against Poland pursuant to Art. 7 of the Treaty on European Union^[6], and launched the infringement procedure in 2019 under Art. 258 of the Treaty on the functioning of the European Union^[7] in connection with the alleged threat to the rule of law. In the opinion of the Ordo Iuris Institute, the actions of the European Commission are unjustified and constitute indication of biased assessment of certain Member States. The European Commission accuses Poland of a lack of the rule of law, while it does not respond to far more serious infringements of the law in other Member States.For instance, no action has been undertaken to the open questioning of judgments of the Court of Justice by courts in Spain, as well as to the unacceptable acts of violence by the French police against demonstration participants and journalists.

For example, in 2019 Spanish Supreme Court ruled that MEP Oriol Junqueras should not be released from prison, denying him immunity as a  Member of the European Parliament. The Supreme Court refused to obey CJEU’s judgment, according to which Junqueras should be entitled to immunity and should be allowed to travel to a Spanish swearing-in ceremony at the parliament.^[8]

Moreover, since 2018 there were numerous reports regarding severe violations of freedom of assembly and freedom of expression in France. 2,945 protesters were injured during protests of “Yellow Vests”. At least 25 protesters lost an eye and five protesters lost a hand as a result. Steve Maia Caniço, a 24-year-old man, and Zineb Redouane, an 80-year-old woman, both died during law enforcement operations. In March, the UN High Commissioner for Human Rights recommended a “full investigation” into allegations of excessive use of force by police. According to Amnesty International, at the end of the year, the authorities had not set up any independent mechanisms to investigate such allegations. In October, a police unit tasked with investigating allegations of excessive use of force by police had opened 313 criminal investigations since the beginning of the movement. At the end of the year, only one police officer had been convicted for unlawful use of force during the protests. In the first six months of the year, around 11,000 protesters were placed in pre-charge detention and more than 3,000 people were convicted, mostly through fast-track proceedings. Hundreds of protesters were arrested and prosecuted for conduct that is protected by human rights law, including contempt of public officials, concealing the face or failure to comply with notification requirements. In the first nine months of the year, 954 protesters were convicted for “forming a group with a view to committing violence”, a vaguely defined offence which allowed arrests of protesters who had not engaged in any violent act.

Also hundreds of journalists reported injuries while covering the protests. On 5 December alone, 34 journalists were injured during protests against the pension reform. In most of these cases the injuries resulted from excessive or arbitrary use of police force. Independent journalists Gaspard Glanz and Taha Bouhafs were arrested and prosecuted for charges including contempt and rebellion. In November, the former was convicted to a €300 fine for contempt of public officials. Intelligence services  summoned at least nine journalists for a hearing in the context of a preliminary investigation into the “Yemen papers”, a series of publications of classified documents that proved that the weapons that the government had sold to Saudi Arabia and the United Arab Emirates were likely to be used against the civilian population of Yemen.^[9]

European Commission never even considered initiating Article 7 TEU or infringement procedure against Spain nor France.

4. State of the judiciary in Poland

In our opinion, the government of Law and Justice was extremely active in the field of reforms of the justice system in 2015-2020, and many changes deserve a moderately positive assessment, especially the major reform of the Code of Criminal Procedure and the Code of Civil Procedure and democratisation of appointment of judges procedure. However, the Ordo Iuris Institute is aware that these reforms have not yet brought significant improvements in functioning of the judiciary. The statistics show that the waiting time for the verdict continues to increase every year. For example, in 2014, Polish courts of first instance needed an average of 203 days to adjudicate a civil or commercial case, in 2016 it was already 225 days, and in 2018 as much as 273 days (an increase of 34%). Meanwhile criminal courts needed an average of 99 days to hear a penal case in 2014. Two years later, there was a slight improvement in pace and the courts were able to adjudicate in 95 days, but in 2018 the pace slowed again and the average time was again 99 days.[10] The Court Watch Polska Foundation's research shows that the transparency of the judicial appointment procedure is still low, and the criteria for selecting candidates for judges by the National Council of the Judiciary in many cases remain unclear.[11]

4.1. Reform of civil procedure in Poland

As part of the reform of the civil procedure, the following changes were made:

- new, accelerated economic procedure for entrepreneurs;

- only one hearing is to be held in less complex cases.To this end, a preparatory hearing takes place before the hearing, during which the judge and the parties prepare a detailed plan of the procedure; - extending the possibility of giving written evidence;

- the possibility of financial sanctioning a party acting in bad faith in order to extend the trial;

- repeated complaints in already resolved cases will be included in the files without the court issuing repeated decisions;

- the possibility of recording the hearings by the parties themselves, provided the court is notified thereof;

- in cases against companies, the plaintiff will be able to choose whether the lawsuit will be heard by a court located in his town or nearby, or where the company is based.^[12]

4.2. Reform of criminal procedure in Poland

As part of the reform of the criminal procedure:

- the anachronistic obligation requiring judges to read full judgment in the empty court room even has been abolished;

- special forms have been introduced for the preparation of justifications of judgments;

- the judges were released from the obligation to orally name at the hearing all the protocols and documents constituting evidence. Until now, they had such an obligation, which was regarded as significant problem in complicated cases, in which hundreds of volumes of files are placed on the table of judges, causing enormous prolongation of the proceedings i.e. by weeks or even months;

- the obligation to adjourn the hearing due to the justified absence of the accused has been lifted. Currently, the trial may be held in the absence of the defendant, if his lawyer is present. This solves a huge problem that causes lengthy court proceedings: using sick leave to adjourn a verdict. In practice, the court sets the date of the hearing, which is attended by numerous witnesses or experts, sometimes from distant places and even from abroad. At the hearing, the defense counsel often unexpectedly submits the accused's sick leave. This makes it impossible to conduct a hearing, and it forces witnesses to come back. The court has to schedule another time-consuming hearing, and the state budget allocates money to reimburse travel costs, accommodation and lost earnings of witnesses or experts. Today it is a common method of judicial obstruction used by criminals and their unethical trial representatives;

- an application for evidence (e.g. a document, calling a witness) submitted after the deadline will, in principle, be rejected. The only exception is when the evidence determines the criminal liability of the perpetrator, which is a consequence of the primacy of the principle of truth in the trial. So far, late submission of the application for evidence has not had any consequences;

- waiver of the obligation to interview all victims of a crime. The necessity to interrogate all victims in cases involving hundreds or even thousands of people was a serious burden for the police and the prosecutor's office in investigations and investigations. These include, for example, online fraud, pyramid schemes, moneylenders or the sale of a whole series of defective goods. In such cases, the hundredth or thousandth victim, as a rule, does not introduce any new facts into the proceedings, but only repeats the already established facts;

- a possibility was introduced to refrain from direct questioning of witnesses who are known not to bring anything significant to the case. Then it is enough to read the testimony of such a witness before the prosecutor at the hearing;

- possibility of presenting new evidence during appeal procedure has been limiting. This will only be allowed if the appellant could not have requested the taking of evidence before the first instance court (e.g. the witness was abroad) or the fact he / she wants to prove could not have been the subject of the original proceedings;

- everyone will be allowed to indicate a post office box for the effective delivery of pleadings (e.g. court, prosecutor, police). It is a convenience both for the persons notified (e.g. parties to the proceedings, victims, witnesses) and for the judicial institutions. Before such deliveries were made personally to the recipient, handed over to a household member or left for collection at the post office;

- disabled persons have been allowed to authorise any selected person to receive court correspondence at the post office.^[13]

The survey conducted among judges by the Ministry of Justice shows that the vast majority assessed the changes in the criminal procedure positively.[14]

4.3. Main controversies

However, the main subject of controversy, which is also discussed in EU institutions and countries abroad, are changes in the area of ​​the judiciary system, which significantly increase the role of the legislative and executive bodies in the daily activities of courts. In our opinion, these changes fall within the limits of the regulatory freedom provided to the parliament by the Constitution of the Republic of Poland and the EU treaties.

The essence of the dispute over the judiciary in Poland concerns the method of appointing judges. Most of the opposition parties and a significant part of the legal community are of the opinion that the judges appointed after 2018 were illegally elected, and that their judgments are invalid. This position results from a change in the procedure for appointing judges in 2018. However, all such allegations must be deemed unfounded, due to the following reasons.

Pursuant to the Article 179 of the Polish Constitution, judges are appointed by the President of the Republic of Poland at the request of the National Council of the Judiciary (NCJ), which holds competitions for judicial positions.

The Council consists of 25 members representing various branches of power (legislative, executive and judiciary): 15 judges, the President of the Supreme Administrative Court, the First President of the Supreme Court, 4 MPs, 2 senators, the Minister of Justice and a person appointed by the President.[15] Until 2018, 15 members of the National Council of the Judiciary were elected by judiciary corporations. Since 2018, these 15 judges have been elected by the Sejm (first chamber of the parliament) by a majority of 3/5 votes.[16] Thus, currently 21 out of 25 members of the National Council of the Judiciary are elected by the parliament. The legality of such a solution was confirmed by the Constitutional Tribunal in the judgment of 25 March 2019, K 12/18, in which it has been underlined that Article 187 (1) of the Polish Constitution does not specify which body is to select the 15 judge-members of the NCJ or what procedure is to be used.

According to some of the opposition and legal circles, this method of selecting the National Council of the Judiciary automatically means that all judges appointed in the new procedure are dependent on politicians, and thus do not meet the requirements of independence.

In our opinion, the very method of selecting the National Council of the Judiciary does not prejudge the judge's lack of independence. Competitions for judges' positions are still open, the requirements for a judge are strictly defined in the provisions of the Act, which include the requirement of legal education, completion of a 3-year judicial training at the National School of Judiciary and Public Prosecution and passing a judge's examination. Moreover, the co-option mechanism, based on election of judges to NCJ by other judges, cannot be regarded as a guarantee of their independence. It leads to a situation in which the check and balance principle becomes illusory, as the judiciary is completely separated from the rest.[17] Moreover, it should be noted that the National Council of the Judiciary has its counterparts in many European Union countries - but there are also those in which there is no such council (e.g. Germany, Austria, the Czech Republic), and judicial appointments and promotions are decided mainly by politicians (this is the case in Germany at the federal level and in most Länder). Polish regulations resemble Spanish solutions the most - judges also have the advantage in the judicial council there (in Spain this majority is 12 - 8; in Poland 17 - 8), who are also elected by the parliament for a joint term of office, by a majority of ⅗ votes.

There are numerous examples of judges appointed after 2018 who ruled against the ruling party. For example, in 2019 the Extraordinary Control and Public Affairs Chamber of the Supreme Court - composed entirely of judges appointed at the request of the new National Council of the Judiciary - refused to invalidate the elections to the Senate, won by the opposition, despite the fact that it was brought by the Law and Justice party.[18] In 2020, judge Renata Żukowska, promoted to district court by the new NCJ, refused to consent to the temporary arrest of lawyer Roman Giertych (representing many opposition politicians), despite the fact that the Prosecutor General supported such a measure.[19]

Out of approximately 10,000 judges in Poland, only a few hundred were appointed at the request of the new National Council of the Judiciary. Even if one has reservations about the current NCJ, it is simply unfounded to consider the entire Polish judiciary as discredited and deprived of any independence solely on this basis.

Conclusion

The Ordo Iuris Institute assesses the changes in the judiciary in Poland moderately positively, although not all the expected results have been achieved. There are no grounds to question the independence of the judiciary due to the new way of appointing judges. There are, however, serious reasons to believe that European institutions represent selective approach in regard of assessment rule of law in certain Member States.

Prepared by the International Law Center of the Ordo Iuris Institute