10 Facts on Poland for the Consideration of the European Court of Justice

Dear Judges of the Court of Justice of the European Union,

soon you are to decide whether, despite massive legislative changes, the Polish judiciary is still independent and therefore able to ensure a fair trial to people extradited to Poland on the basis of a European Arrest Warrant. As a Polish lawyer, I have decided to use an old tradition of the amicus curiae letter – a letter from a friend of the court – to depict the situation of the Polish judiciary in 2018.

In order to do so, I have decided to step down from an abstract level of legislative changes and describe the situation of the Polish judiciary from the perspective of an individual. Therefore, let me present you with 10 facts that have a direct impact on the circumstances of every defendant currently subject to the Polish judicial system. For each fact I have provided several sources, the majority of which are only available in Polish but can be officially translated at your request should the need arise.

Fact 1: Political objectives of the governing party concerning crime and punishment

The Polish Minister of Justice’s explicitly stated political aim is to toughen criminal policy. On April 24th the Minister held a press conference during which he announced a new campaign against crime as part of a comprehensive reform package presented to the general public under the name “Justice and Security”. According to the information published on the Ministry of Justice’s website, “the introduction of the changes – besides the reform of the prosecutor’s office and courts – will be the most important task of the Ministry of Justice”.  At the press conference, the Minister announced a wide-ranging reform of the penal code, stating that “the penalties must be adequate to the fault. They must effectively deter criminals (…).” The planned changes will include severe penalties for petty theft, higher penalties for theft of payment cards and hacking of Internet accounts, and higher penalties for bribery.

In April 2018 the Minister of Justice also announced that the government wanted to “radically increase penalties for the most serious economic crimes”. As regards the enforcement of penalties, measures would be taken to ensure that incarceration became “a kind of shock, an experience that will forever encourage functioning in accordance with the legal order”.

On 16 April 2018, in the context of the European Commission’s doubts as to respect in Poland for the guarantee of the rule of law, in a television interview the Prime Minister confirmed that further reforms would be made to the Polish justice system, and stated that the governing party “cannot and certainly will not abandon” the reforms.

The above-described public statements indicate that persecuting defendants is high on the list of the priorities of the governing party. Hence, there is a political pressure to use all the available tools to reach this goal.

Fact 2: Political control over prosecutors

The Minister of Justice is both an MP of the governing party and Poland’s prosecutor general. As prosecutor, he possesses all the competences of a regular prosecutor plus the right to intervene with every case and command rank and file prosecutors to do whatever he wishes. The Polish constitution does not allow MPs to be prosecutors (see Article 103 point 2 of the Polish Constitution¹⁾); despite several attempts to force the Minister to comply with the constitutional requirement, he has refused to do so.

The current government’s new Act on the Public Prosecutor’s Office came into force on 4 March 2016 and led to:

• the position of Prosecutor General being combined with that of Minister of Justice (politicisation of the position of Prosecutor General)²⁾)),
• reorganisation of the Public Prosecutor General’s Office (and making a number of personnel changes, e.g. demoting prosecutors holding the highest office) and the introduction of a personnel management system³⁾,
• creation of a special Internal Affairs Department at the Polish Public Prosecutor’s Office, dealing with preparatory proceedings concerning the most serious offences committed by judges, assistant judges, prosecutors and public prosecutor’s office assistants, and also performing the function of prosecuting authority in such cases before the court.

The changes were widely commented on and criticised by the prosecution service, the opposition and the public.⁴⁾ The effect of the changes is that the public prosecutor’s office is dependent on the executive authority – the Minister of Justice may directly affect the outcome of criminal cases.

Fact 3: Changes concerning the organization of courts, including criminal courts

The aim of the recently passed amendment concerning the Law of the Organization of the Common Courts – according to the declaration of the parliamentary majority – was to dispel constitutional doubts over the new provisions on the ordinary court system.⁵⁾ Those provisions gave the Minister of Justice wide powers to appoint and dismiss presidents and vice-presidents of ordinary courts, thereby depriving the judicial self-governing body (the National Council of the Judiciary [NCJ]) of any influence on how these positions are filled.

The changes introduced by the current amendment are, however, a facade and they do not eliminate the lack of compliance with the Constitution of the regulation on the ordinary court system.  The regulation retains a mechanism that enables the executive authority to exert influence on ordinary courts, as it makes the Minister’s decision to appoint or dismiss the presidents and vice-presidents of courts ultimately dependent on the decision of the NCJ. In view of the parallel changes made to NCJ personnel (described in this letter) and the increased influence of the current governing majority on the composition of this body, in practice the changes are of a highly illusory nature.

The right to appoint and dismiss presidents and vice-presidents of courts gives the Minister a significant influence both on the organizational aspect of judicial activity and beyond it. It engenders a risk of transforming openly or covertly into interference in the way judges decide cases. Court presidents (vice-presidents) have not only supervisory administration functions but also certain jurisdictional functions, e.g. related to the allocation of cases to particular judges. Some powers given to presidents (vice-presidents) have an indirect or direct impact on judges’ impartiality: giving consent to a judge taking up additional employment, demanding initiation of disciplinary proceedings, ordering an immediate break in a judge’s judicial activities until a resolution is adopted by the disciplinary court. Clear separation of the administrative and strictly judicial functions of court presidents (vice-presidents) is not possible.

The Ordinance of the (current) Minister of Justice dated 28th December 2017 introduced a new electronic system for randomly allocating cases to particular judges.⁶⁾ That system, whose purpose is to promote transparency in the allocation of cases, is fully controlled by the Minister of Justice who – as Prosecutor General – at the same time is a potential party to every court case. Such control is incompliant with the case law of the European Court of Human Rights.⁷⁾ Moreover, the Ministry refused to reveal the random selection algorithm to a Polish NGO which requested its public disclosure.

Fact 4: Unconstitutional changes to the Polish criminal procedure

After 2015, the current governing majority introduced several changes to the Polish criminal procedure. Those amendments worsen the position of the defendant.

The Act of 11 March 2016 amending the Code of Criminal Procedure and Certain Other Acts introduced to the Polish legal system the rule that evidence obtained illegally, i.e. “fruits of the poisonous tree”, could be admitted in criminal proceedings. According to the new wording of art. 168a of the Code of Criminal Procedure (CCP), “evidence cannot be found inadmissible solely on the grounds that it was obtained in breach of procedural provisions or through a prohibited act referred to in art. 1 §1 of the Criminal Code, unless evidence was obtained through a public officer discharging his official duties, as a result of: murder, intentional bodily harm or imprisonment”.

The introduction of this Act was strongly criticised both by the judiciary and the public.⁸⁾ The effect of the changes it introduces is that state authorities can obtain evidence in breach of the law and subsequently use it in criminal proceedings. This could lead to culpable breach of the law by state officials without them bearing any consequences. The changes also show that the legislature has no respect for established case law of ordinary courts and is in clear breach of the constitutional standard.

Further legislative changes enormously strengthen the position of the prosecutor vis à vis defendants. According to Article 137 point 2 of the Law on the Prosecutor’s Office, enacted in 2016, a prosecutor does not bear a disciplinary responsibility for acting in a way that blatantly infringes the law, if he or she acts solely for the public interest. As the term “public interest” is extremely vague, such a regulation constitutes an open encouragement for prosecutors to act illegally while performing their duties.

Another recently enacted regulation allows a prosecutor to withdraw a case from the court at his or her will several times without giving the court a countervailing right to oppose that withdrawal and resubmit the case later.⁹⁾ The withdrawal of the case does not mean the defendant is acquitted – to the contrary, he or she remains accused and is forced to wait for the resubmission of the case. That regulation can be used by the prosecutor when he or she expects the case to be dismissed in order to enhance it and resubmit when new evidence is gathered. With no countervailing right of the court or the defendant to oppose such a move, the prosecutor can extend the trial as long as he or she wishes.

Fact 5: Inability to challenge the constitutionality of the amendments to the criminal procedure before the Constitutional Tribunal

The natural way of questioning unconstitutional legislation is to challenge it before a constitutional court. Unfortunately, this is no longer an option in Poland. In 2015, the current parliament arbitrarily decided that the appointment of three judges to the Constitutional Tribunal (CT) made by the previous parliament was invalid and elected three other judges in their place; moreover, the President took the oath from the later-elected judges, having refused to take the oath from the three judges nominated by the previous parliament.

Since 19 December 2016, a total of five unauthorised persons (M. Muszyński, L. Morawski [and after his death J. Piskorski], H. Cioch [and after his death J. Wyrembak]) have taken part in passing CT judgments. In a move contrary to the Polish Constitution, one of these unauthorised persons was appointed vice-president of the CT (M. Muszyński).   In 2017 the CT issued a total of 88 decisions, while since their appointment these unauthorised individuals have participated in passing 81 decisions; this leaves doubts as to the legality of a majority of recent CT decisions.

In addition to that, a motion filed by the Minister of Justice questioning the legality of the 2010 appointment of the three sidelined judges has led to their being effectively suspended by the Head of the CT. Consequently, in every case to come before the CT, an application has been filed for these judges to be removed. As the CT has still not examined the application on the matter of their election,  these judges have been excluded from judicial activities (e.g. in case nos. Kp 4/15 and Kp 1/17). Given the lack of explanation for why the Minister’s motion has not been examined for over a year now, the situation can be interpreted as a coordinated manoeuvre by the Minister of Justice and the Head of the CT to unconstitutionally suspend the three judges elected in 2010 .

Politicians of the government majority participate in informal meetings with judges at the CT. As stated by S. Biernat, former CT Vice-president “Justice Minister Zbigniew Ziobro, Deputy Justice Minister Marcin Warchoł, Special Services Coordinator Mariusz Kamiński and Member of Parliament Arkadiusz Mularczyk have been seen at the Tribunal”. The CT’s office admitted that politicians were received in the CT’s building.

Art. 38 of the Act on the Organisation and Procedures of the Constitutional Tribunal states that CT judges, including the presiding judge and the judge-rapporteur, are appointed to the bench by the President of the Tribunal in alphabetical order, having regard to the type, number and order in which cases are submitted to the CT. The President of the Tribunal may derogate from the above-mentioned criteria and assign a judge-rapporteur in justified cases, especially in view of the case’s subject-matter.

The decisions of the President of the Tribunal are not transparent. Statistics show a significant disproportion of cases are heard by particular judges – since December 2016, judges appointed by the current parliament are preferred, while those appointed by the previous parliament are discriminated against. For instance, M. Muszyński has been in the panel in 32 cases since his December 2016 appointment by the current Parliament in a manner contrary to the Polish constitution. In the same period, Judge Zubik, whose 2010 appointment has been questioned by the Minister of Justice, has not sat on any panel. In previous years, Judge Zubik was in the panel in 342 cases (an average of 57 cases per year).

In addition, in a recently published decision of the CT, M. Muszyński admitted that the President of the Tribunal changes the judge rapporteur at will if the panel does not agree with the judge rapporteur’s view on the case. The lack of procedure for such a change makes it entirely opaque.

The changes at the Tribunal have led to a drop in public confidence in the institution and consequently in the number of cases submitted to it:

• In 2014, 530 cases were taken to the CT, including 375 individual constitutional appeals,
• In 2015 r. 623 cases were taken to the CT, including 408 individual constitutional appeals,
• In 2016, 360 cases were taken to the CT, including 267 individual constitutional appeals,
• In 2017, 282 cases were taken to the CT, including 231 individual constitutional appeals.¹⁰⁾

The significant decrease in the number of individual constitutional appeals between 2015 and 2017 should be interpreted as a sign of distrust in the CT’s ability to protect individual constitutional rights effectively.

The number of questions referred by the regular courts to the CT has also dropped significantly. The number of referrals in 2015 amounted to 135, while the number of referrals in 2017 was only 21. This decrease should be interpreted as a sign of distrust in the CT’s ability to decide constitutional cases which are important for regular courts, including criminal courts.

The best illustration of the inability to challenge the constitutionality of the legislation before the CT is the Human Rights Ombudsman’s (HRO’s) attempt to challenge the constitutionality of the legislation introducing the “fruits of the poisonous tree” (use of evidence obtained in breach of procedural provisions or through a prohibited act) into the Polish criminal procedure.  In an application of 6 May, 2016, the HRO applied to the CT for a judgement on the constitutionality of allowing into criminal proceedings evidence obtained in breach of procedural provisions or through a prohibited act. In April 2018, the HRO was forced to withdraw the application due to the CT President’s unlawful interference in the composition of the bench hearing the case. Originally the case was to be heard by a full bench, but after J. Przyłębska became CT President in December 2016, the bench was groundlessly changed to a bench of five judges, on which sat two unauthorised persons: M. Muszyński and L. Morawski.

Then, two CT judges elected by previous parliaments were removed from the case. The case was finally heard by the CT in a bench chosen entirely by the current parliament. The same thing occurred in March 2018 in the case of an application filed by the HRO concerning the constitutionality of a law amending the rules for surveillance by the secret service.

As a consequence, Poland’s CT in is not at present meeting its constitutional obligations. Nor is it able to protect citizens against the infringement of their constitutional rights and freedoms as a consequence of unlawful measures taken by the executive authorities and of the legislative lawlessness of the legislator. The CT’s inability to perform its constitutional function is of utmost importance to the individuals involved in criminal cases. Not only are they deprived of the possibility to challenge the legislation influencing their rights via general constitutional motions (like those filed by the parliamentary opposition or HRO), but they cannot be sure their individual constitutional appeals (filed after the individual trial has ended) will be examined by an independent constitutional court.

Fact 6: Limitations to regular courts performing a constitutional review

With the CT ceasing to fulfil its function of providing centralised constitutional review, the only alternative is the decentralised variety, performed by the