The issue of judiciary system reforms in Polish political debates

The reforms of the judiciary system have been the recurring topic of the Polish public disco- urse at least since 1990. As widely noted, the post-1989 transformation did not indeed cover the organization of courts. Paradoxically, the majority of reforms were implemented in the declining period of the communist era (in the 1980s), and these solutions were subsequently repeated in new legal regulations without any significant modifications. The majority of newly introduced institutions, such as the Constitutional Court (Trybunał Konstytucyjny), were perceived as solutions borrowed from the Western countries, and consequently proper and correct, even though the communist authorities, while implementing them, adopted them to the circumstances of the socialist state.

On top of that, a large part of such syncretic institutions taken over from the democratic West, but adjusted to the socialist reality, were mandated by the upcoming erosion of the Communist system. The public viewed those institutions, among others, as contributing to the ultimate collapse of communism and the launch of democratic reforms. It is a particular paradox as it is already known today that some of those institutions were designed in an attempt to save socialism under the façade of democratic solutions. For this reason, some people openly state that the introduction of judicial institutions associated with democracy and with the rule of law gave the democratic façade to the third branch of power, even though no reforms were carried out to actually make the rule of law real. Shortly after, at the constitutional level, the ‘state of law’ principle was established, which, without any recognition of ‘transition justice’, covered the existing legal system with democratic rules, although in many aspects the system was of totalitarian origin. It is noted that in particular the Constitutional Court (established in 1982) and the National Council of the Judiciary (established in 1989) served as a democratic screen to cover the undemocratic reality. As a consequence, on the brink of radical constitutional reforms, the third power was, in fact, invisible, while the constitutional debate was focused on entirely different issues (such as the position of the President, two chambers of the Parliament, the status of the Prime Minister within the Government, relations between the Government and the Parliament, human rights and relations between the State and the Church). The outcome was the assumption that the new Constitution, finally adopted in 1997, petrified the position of the judiciary with only minor corrections being made (such as recognizing the Constitutional Court as a judicial body and granting the Constitutional Court new compe-tences, such as adjudicating on constitutional remedy). Other key solutions related to the judiciary remained practically unchanged, while the changes of 1997 were of limited scope (e.g., administrative court proceedings became two-instance proceedings).

Nonetheless, voices advocating for the real reform of the judiciary were still strong. These voices were even louder in response to judicial decisions on communist crimes that were found outrageous by the public (i.e., in the cases concerning the massacre of mine workers in the Wujek Coal Mine, the declaration of Martial Law, the killing of priest Jerzy Popiełuszko). At the same time, among others thanks to the activity of the Institute of National Remembrance, the public started to receive information on the so-called judicial crimes, namely the crimes of the communism period in which approx. 50,000 people linked to independence conspiracy were murdered in the name of law. The negative image of judges and courts was additionally exacerbated by disclosed pathologies, such as nepotism, cronyism or corruption. Various informal connections linking the environment of judges, politicians, and businessmen were also disclosed (for instance, the network in Gdańsk, which even became an inspiration for movies).
This image of the judicial power only strengthened the calls for authentic reforms. Such proposals were heard both from the left and from the right wing. Without such reforms, as Magdalena Ogórek, who was a candidate of the left wing for the President in 2015, pointed out, Poland would be only the state of lawyers and not the state of law. The need for change was expressed earlier in political programs of such parties as the Law and Justice and the Civic Platform. Grassroot, spontaneous citizens’ initiatives appeared as well, proposing quite radical judiciary reforms (for instance, Association of Victims of Judicial Bodies). The large majority of proposed reforms boiled down to the reorganization of three impor- tant aspects, i.e., the Constitutional Court, the National Council of the Judiciary, and the disciplinary liability of judges.

As for the Constitutional Court, the debate was held mainly in academic circles, which argued the former was a remnant of socialism and that it was the mechanism of selecting judges that should be changed above all, and that it was necessary to amend the operating mode of the Court, so that it could protect the rights and freedoms of individuals more effectively.

The National Council of the Judiciary (KRS), in turn, sparked interest not only among politicians but judges themselves. Andrzej Rzepliński, the former president of the Consti- tutional Court, stated expressly that it was impossible to perform a serious judiciary reform in Poland. In his opinion, the KRS is a corporate set of connections, selected in a non-transparent manner and representing not judges but judicial groups of interest. A meanin- gful proof is the opinion expressed by A. Rzepliński: If we do not rip the National Council of the Judiciary out from judges, nothing can be done with the Polish legal system. It is worth noting that also political parties, including the Civic Platform, believed that the reform of the KRS was necessary. The Civic Platform directly stated in its program that the reform of the KRS was indispensable as the success of any change in the judiciary depended on it. The leader of the Civil Platform already in 2007 pointed out that “the thorough reform of the National Council of the Judiciary should be carried out. It should cease to be a corporate body of judges and it should become a guardian of the citizens’ right to seek justice. The members of the National Council of the Judiciary should be selected by the Sejm from among candida- tes proposed by the senates of higher education institutions. They should be persons of good character, with higher education and significant professional achievements. Introducing to the Council people setting a moral and professional example from outside the judicial environ- ment is indispensable, not only for the purpose of making the Council the representative of the interests of citizens who are clients of courts but also for the purpose of making it the effective institution ensuring review of and control over the process of selecting and nominating judges who exercise a significant part of power within the state. Currently, this process fails to satisfy the requirements of democratic order as in practice judges are chosen from among the circle of corporate co-optation closed to citizens.”

The reforms of judges’ disciplinary liability mechanisms were also proposed multiple times, for instance, in response to social outrage and to the conduct of judges that infringed the dignity and seriousness of their office, often in breach of law, but were covered behind corporate liability mechanisms. The proposal of disciplinary liability model reform, including the establishment of the Disciplinary Chamber within the Supreme Court, was presented among others by the First President of the Supreme Court Małgorzata Gersdorf. She also shares the opinion that disciplinary liability in Poland was not enforced effectively, which translated into lack of trust towards judges, while such trust is a key value on which the judiciary must rely, not least that this branch of power is excluded from the mechanisms of democratic elections.

It should be emphasized that even today the representatives of the majority of political environments do not question the need to carry out reforms of the system of courts and judges. The representatives of almost all parties agree that courts in Poland require reform- atory actions covering various aspects of the functioning of the judiciary. Politicians voic- ing their opinions often state, however, that the direction of reforms introduced after 2015 is correct, but their largest flaw is that they were introduced by the right-wing government (understood as orthodox and extreme in its positions) and that they excessively distorted the existing connections and interests within the judiciary.