Poland’s ruling Law and Justice Party has undertaken a systematic campaign for the past three years to control the Polish judiciary, culminating in recent, failed attempts to arbitrarily retire a third of the members of the Supreme Court. The ostensible “reform” effort collapsed after a backlash in which Polish and international civil society organizations rightfully sounded alarm bells.
While there seemed to be a moment of relief when President Andrzej Duda signed an amendment in December rolling back the mandatory retirement age for judges – if only to comply with a preliminary injunction issued by the European Court of Justice – the government had already shifted to another tactic that is lower profile and harder to track. A new “Disciplinary Office” created by the government and headed by a Disciplinary Officer for Common Court Judges (sometimes called a Disciplinary Prosecutor) is using frivolous disciplinary proceedings against individual judges who stand up for the rule of law. The range of punishments under these proceedings include warnings, reductions of salary, and even dishonorable discharge from the bench.
This backdoor strategy came to light in summer 2018, when the Minister of Justice appointed the Disciplinary Officer for Common Court Judges, Piotr Schab, and his two deputies. The court of last resort for these cases is a new Disciplinary Chamber of the Supreme Court, established as a part of the controversial Supreme Court Act that entered into force in 2018. The new judges in the Disciplinary Chamber were hand-picked by the ruling party, after closed-door proceedings in which some candidates were only interviewed for 15 minutes.
The objective of the new structures became clear with the beginning last year of what appear to be politically motivated disciplinary actions against a number of judges, including those who had sent questions to the European Court of Justice (ECJ) concerning the legality of the government’s judicial overhaul.
The president of the Polish Judges Association, Iustita, recently wrote to the European Commission, raising concerns over the disciplinary actions against judges and stating that the commission’s intervention would be needed to ensure the proceedings were fair. In response, European Commission Vice-President Frans Timmermans told reporters last month that the EU would take action against Poland if “judges are being faced with disciplinary measures because they ask questions to the [ECJ].” The specific nature of action the EU could or would take remained unspecified.
Narrow Basis for Action
Unfortunately, the basis for action expressed by Timmermans is too narrow. While targeting judges for sending a case to the ECJ – something that is unequivocally a part of any judge’s job in the EU in questions about compliance of a country’s laws with EU standards – is particularly egregious, disciplinary actions against judges who have been generally outspoken on the issues of rule of law and the independence of the judiciary deserve as much attention. Such disciplinary actions could, in the long run, give the executive complete control over the judiciary through the removal of independent judges and the intimidation of those who remain.
In addition to the irregularities in the naming of judges to the Disciplinary Chamber, there are additional grounds for concern that the new disciplinary process is susceptible to arbitrary application against independent judges. The Chamber has its own President, who is independent of the President of the Supreme Court, and its own budget. The judges of the Disciplinary Chamber will earn 40 percent more than justices on the Supreme Court, according to the President of the Supreme Court, Malgorzata Gersdorf, who helped lead the resistance against the government’s judicial-retirement gambit by refusing to retire.
Additional changes to the disciplinary system increased the role of the Minister of Justice and undermined the ability of those facing accusations to defend themselves. For example, the new Act on Common Courts establishes a new office of the Disciplinary Officer in charge of investigating and initiating disciplinary procedures against judges.
Notwithstanding the existence of this office, the Minister of Justice may appoint a Disciplinary Commissioner for the purpose of prosecuting a specific case, and in such a case, no other officer may take any action in that case. Furthermore, the Minister of Justice is authorized to object to the Disciplinary Officer’s decision not to commence disciplinary proceedings upon conclusion of an investigation into a matter.
Warnings to Toe the Party Line
Together with the politicization of the Disciplinary Chamber, the message is clear for all members of the judiciary: follow the party line or face the consequences. Indeed, there are early indicators that most of the disciplinary actions taken against judges so far have targeted judges who have been outspoken on issues of judicial independence and the rule of law.
Judge Krystian Markiewicz, president of the association, was summoned by the Disciplinary Officer for “crossing the boundaries of the judges’ freedom of public speech,” according to a report by the Helsinki Foundation for Human Rights of Poland. Other members of Iustitia, Judges Bartłomiej Przymusiński (the association’s spokesperson) and Igor Tuleya, were summoned to explain their criticism in news media of the new National Judicial Council, a body that recommends judges for nomination to the Supreme Court, which itself was stacked by party loyalists in the early stages of the “reform.” Confirmation of the manipulation of the National Judicial Council has led to Poland’s suspension from the European Network of Councils for the Judiciary.
In another case, Judge Włodzimierz Brazewicz was summoned by a Deputy Disciplinary Officer to clarify whether he had taken part in a meeting of a “political nature” because politicians such as candidates for local government were present at a meeting that the judge chaired. Judge Tuleya also was summoned, along with Judge Ewa Maciejewska, on allegations of what the Deputy Disciplinary Officer, Przemysław Radzik called “judiciary excess,” after they separately sent requests for preliminary rulings to the ECJ. The Disciplinary Officer has denied that the actions of his office were triggered by judges’ inquiries to the ECJ.
Judges Monika Frackowiak and Arkadiusz Krupa were commanded to appear after wearing their official robes while participating in a moot court at a music festival. After the investigation, the Disciplinary Officer instituted proceedings against Judge Frackowiak regarding 172 of her opinions.
Many other actions have been taken by the Ministry of Justice against outspoken judges, such as transfers to other courts, or elimination of departments over which they presided, effectively firing them from their leadership posts. Iustitia calls these actions gag orders that clearly are meant to silence judges who are critical of the executive’s “reforms.”
Judges, just like other citizens, have the right to freedom of expression, association, and assembly. International standards prohibit their removal from the bench except for serious infractions, and then only pursuant to due process standards.
Insidious Political Control of the Judiciary
Certainly, abuse of criminal or disciplinary proceedings to try to silence or intimidate judges has been tried in other countries with varying degrees of success. The American Bar Association’s Center for Human Rights has observed such proceedings in Venezuela, Guatemala, Spain, and Bulgaria. This method of political control can be more insidious and difficult to counter than outright attacks on judicial independence, because it involves proceedings in far-flung courts and factual determinations based on case files that are not necessarily public.
The need for vigilance by the international community is clear: Politically-motivated removal of judges can have a crippling impact on the court’s ability to hold members of the executive accountable to the rule of law. The ability of judges to render impartial justice, deciding cases according to the law and the facts in front of them, without fear of reprisal, is the safeguard of democratic society and the last line of defense for minorities otherwise subject to the majoritarian whims of the political branches. Legitimate judicial remedies also are important in upholding property rights and the sanctity of contracts, both of which are essential for investor confidence, business development, and trade.
It will therefore be important for the United States and the European Union to have a regular presence at any public hearings in disciplinary proceedings, to stand up for the due process rights of the accused and demand adherence to international standards.
In the meantime, the European Union should continue pressing on with the Article 7 process it started in December 2017 in an effort to hold Poland accountable for measures against its judicial system that violate EU regulations.
U.S. officials also should speak out – both publicly and in their private meetings – in support of American values of democracy, human rights, and rule of law, and in support of Poland’s civil society, which has been vocal about the government’s attacks on the judiciary. U.S. leaders must understand that their silence not only suggests endorsement and undermines EU measures, but also impinges U.S. interests in safeguarding democratic societies, especially those of historically close allies.
(Blair Campion of the American Bar Association’s Center for Human Rights contributed to this article.)
IMAGE: Polish Supreme Court Justice President Malgorzata Gersdorf (second from left) arrives for work at the Supreme Court building in Warsaw on July 4, 2018, as people gather to support her. She had refused to step down, defying a controversial new law by the right-wing government requiring her and other senior judges to retire early. The law has since been rescinded, but rule-of-law advocates say the government is trying other tactics to sideline certain judges. (Photo by WOJTEK RADWANSKI/AFP/Getty Images)