Highly anticipated amendments to Poland’s law on the Supreme Court took effect on July 15, abolishing the controversial Disciplinary Chamber, a body that had been embroiled in controversy from its creation in 2018 because of the ruling party’s political control over its composition. The new measure – signed into law by President Andrzej Duda at the end of June – was part of an effort to unlock more than 35 billion Euros in European Union (EU) pandemic recovery funds that were frozen by the European Commission due to Poland’s failure to uphold its commitments on the rule of law. But domestic and international rule of law advocates say the legislative changes do too little to remove the core threats to Poland’s judiciary, including political influence over the body responsible for judicial discipline.
The standoff with the Polish government is one of a series of disputes between backsliding democracies in the region and EU institutions over adherence to the rule of law. The EU froze Hungary’s pandemic recovery funds along with Poland’s and the European Parliament recently described the government of Hungarian Prime Minister Viktor Orban as a “hybrid regime of electoral autocracy,” in large part due to its failure to honor key tenants of the rule of law. The parliamentary resolution cites the Orban government’s “assault on judicial checks and balances,” the concentration of media ownership, and the flagrant mixing of state and party resources as having greatly diminished the quality of Hungarian democracy. Meanwhile, the Court of Justice of the European Union (CJEU) concluded in 2021 that Romania’s national legislation governing the discipline of judges is likely to give rise to doubts about political pressure or control over the content of judicial decisions.
While each country’s politics are unique, the region has been marked in the past decade by centralization of power, stigmatization of civil society organizations, and the mixing of political with national interests. As the actions of Poland’s government undermine the rule of law at home, it also undercuts the EU’s credibility as a democratic bulwark and distracts from the vital role Poland plays in supporting Ukraine’s defense against Russia and in the broader NATO alliance.
Poland’s Obligation to Respect Judicial Independence
As a member of the EU and a State party to both the Charter of Fundamental Rights of the European Union and the International Covenant on Civil and Political Rights (ICCPR), Poland has an obligation to adhere to rule of law norms and ensure the independence and impartiality of its judiciary. The United Nations Basic Principles on the Independence of the Judiciary and the Bangalore Principles of Judicial Conduct underscore Poland’s treaty obligations. The U.N. Basic Principles recognize the duty of the government to “respect and observe the independence of the judiciary” and emphasize that there should be no “inappropriate or unwarranted interference with the judicial process.” The Bangalore Principles declare that “[j]udicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial.”
Yet the government’s stance toward international and European law and standards on judicial independence has ranged from minimal compliance to blatant defiance. Poland’s failure to take the actions necessary to reverse such democratic backsliding have resulted in multiple infringement proceedings initiated by the European Commission, the freezing of the pandemic-recovery funding, and numerous decisions and orders by the CJEU. Without meaningful changes to the disciplinary processes for judges, the Polish government continues to defy European and international law and standards on judicial independence and impartial courts.
Key Decisions by the EU Court of Justice
The numerous and sweeping disciplinary actions against judges by the Disciplinary Chamber led rule of law advocates and legal experts to conclude that it was simply a tool for the government to curb judges’ participation in the public discourse on the ruling Law and Justice Party’s judicial reforms. It also resulted in numerous proceedings before the CJEU.
In April 2020, the CJEU ordered Poland to suspend the jurisdiction of the Disciplinary Chamber in disciplinary proceedings concerning judges, citing insufficient guarantees of the chamber’s independence and impartiality. The April 2020 order was followed by a ruling in July 2021 in which the CJEU held that the Disciplinary Chamber does not fulfill the requirements of an independent and impartial tribunal under EU law because the context in which it was created, the characteristics of the chamber, and the manner in which its members are appointed raise doubts as to its neutrality and the specter of potential influence by the Parliament and the executive. (All of the chamber’s judges were appointed by the National Council of the Judiciary (NCJ), a body whose composition changed at the end of 2017 so that 15 of its 25 members are judges appointed by the lower house of Parliament, the Sejm.)
Also, in July 2021, the CJEU, in a different matter, granted the European Commission’s application for interim relief and ordered the suspension of the Disciplinary Chamber’s jurisdiction in additional cases affecting judges — specifically, the cases regarding lifting judicial immunity for criminal prosecution and the suspension of decisions already issued by the Chamber pertaining to the lifting of a judge’s immunity. Poland’s failure to suspend the work of the Disciplinary Chamber has resulted in daily fines that now exceed €250 million.
Shortcomings of Duda’s Judicial Reform Bill
The amendments ultimately passed by Poland’s Parliament and signed by the president in June were part of a judicial reform bill prepared and proposed by Duda. Although the legislation abolished the Disciplinary Chamber, Poland’s legal community remains concerned that the appointment structure for the replacement body – the Chamber of Professional Responsibility – still lends itself to political influence: It will consist of 11 judges, all appointed by the president. These 11 judges were recently chosen from among 33 randomly drawn by the head of the Supreme Court from the pool of approximately 90 sitting Supreme Court judges.
Of the 33 names drawn in August, more than half (17) are so-called “neo” (or “new”) judges who were appointed with the participation of the NCJ, a body whose independence also has been called into question by both the CJEU and the European Court of Human Rights (ECtHR) due to the fact that a majority of its members were appointed by the ruling political party and not by fellow judges. The involvement of the NCJ in their appointments renders immediate and irreparable defects in the selection process for the newly established Chamber of Responsibility. With Duda reportedly selecting 6 NCJ-appointed judges among the 11 to sit on the Chamber of Professional Responsibility, the new body will be ensnarled in the same controversy over independence and impartiality as plagued its predecessor.
Another concern expressed by Poland’s legal community is the law’s lack of an effective mechanism to reinstate judges who were previously suspended in contradiction to international and European legal standards. Though the amended law allows the suspended judges to seek reinstatement, the decision about such reinstatement would remain at the discretion of the Chamber of Professional Responsibility, which like its predecessor has already been deemed susceptible to political influence from the outset.
The recent amendments also fail to remove the Chamber’s authority to discipline judges who inquire about the independence of another judge based on a request from parties in a legal case. The amended law is flawed in this respect for two reasons: First, it did not remove the provision introduced by the ” that allows judges to be disciplined for questioning the legal status of other judges and central state bodies; and second, the “independence test” introduced in the amended law does not allow for an examination of the correctness of how a judge was appointed, but only in the judge’s subsequent conduct. In this way, the new law essentially rules out the possibility of challenging appointments made with the involvement of the current NCJ, and thus embodies the existing system, which as noted, has been found to be flawed by the CJEU and the ECtHR.
Although the European Commission has approved Poland’s recovery plan – a step toward unlocking the frozen funds – the Commission’s president recently stated that the law’s changes are insufficient to unlock the EU recovery funds “because its new law [does] not meet EU standards on the independence of judges.” Poland’s government in August lashed out in fury over the continued rejection.
It is essential for the Polish government, as a member of the international community, the EU and NATO, to bring meaningful changes to the justice system that ensure that judicial independence is consistent with Poland’s international treaty obligations, European values, and Poland’s own previously long-standing democratic and human rights traditions. The government needs to guarantee that Polish judges have adequate appointment and disciplinary procedures that are in line with the judgments of the CJEU and ECtHR and to execute the judgments of the CJEU and the ECtHR as they relate to the independence of Poland’s judiciary.
A New Twist for the Broader Context: Russia’s War on Ukraine
Tensions between the current Polish government and the EU over fundamental democratic principles have simmered for several years. Yet the context changed dramatically with Russia’s Feb. 24 full-scale invasion of Ukraine, as Poland became a pivotal security and humanitarian player. Not only is Poland’s military one of the strongest in Europe, but because of its geographic location, Poland has taken in millions of Ukrainian war refugees and provided a staging area for much of the Western humanitarian and military support flowing into Ukraine. This crucial role for Poland has further complicated the ability of the European Union to speak with a clear voice and to impose meaningful consequences on the Polish government for its undermining of the rule of law.
Notably, however, as Poland finds itself faced with different but growing challenges on its eastern border, both from Belarus and Ukraine, solidarity within Poland and among all the members of the European Union is crucial for Poland’s own national security. As Duda’s judicial reforms do little to alleviate ongoing doubts about the reliability of the rule of law – and democratic governance more broadly – in Poland, the government’s failure to resolve this row with the EU inserts distractions and divisions at a time of expanding external threat.
It is in the interests of the EU and the United States not to pull punches on such basic values in order to placate one political party, even if that party controls of the government of a strategic partner; indeed, it is more important than ever that the EU and the United States act in ways that ensure they together present a credible force and example of democratic governance. Duda’s failure to reverse course on actions that increase tensions and decrease solidarity in Europe distracts the EU and makes Europe a less able ally of the United States.
It also is in Poland’s own interest to comply with democratic EU standards, including on an issue so fundamental as judicial independence. In order to collaboratively resist external threats, it is up to President Duda to ensure that all partners aligning against Russia view Poland as adhering to the rule of law, following EU values and standards, and presenting a trustworthy partner for the necessary democratic bulwark against Russia’s tyranny.
(The views expressed represent the opinions of the authors and not those of any institutions or organizations with which they may be affiliated. The views expressed have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities.)