Judicial Transitology

The rule of law crisis in Poland consists of several elements – undermining the independence of courts, politicization of disciplinary proceedings against judges, and lack of legal certainty. None of them, however, raises so many doubts and concerns as the status of judges appointed or promoted upon the request of the politically captured National Council of Judiciary (NCJ).

In this blog post, we analyse the diverse composition of the group of judges appointed or promoted upon the motion of the NCJ from 2018. We also discuss the relevant jurisprudence of national and international courts and the current state of debate concerning this problem and possible solutions.

The role of the NCJ in the Polish rule of Law Crisis

The key element of the Polish rule of law crisis is inextricably tied to the problem of the National Council of Judiciary – a constitutional body responsible for protecting judges’ independence. Its main task is to review the candidates for judges and present motions to appoint a judge by the President of Poland. The NCJ is composed of 25 members: 15 judges, 6 representatives of both parliamentary chambers as well as the President, Minister of Justice, and the Presidents of the two highest courts. Until 2018, the judges were appointed to the NCJ by their peers. However, at the end of 2017, the appointment power was transferred to Parliament, putting it in control of appointing of 21 out of 25 members of the NCJ.

The adopted changes and how quickly they were implemented revealed the NCJ’s lack of independence and raised concerns about the legality of its decisions. Consequently, in 2021 the NCJ was excluded from the European Network of Councils for the Judiciary (which, ironically, the same Polish Council helped establish). Furthermore, the NCJ’s lack of independence and irregularities in its composition were subjected to several rulings of both international and national courts (see point 3).

Nonetheless, the NCJ in its changed composition continues its work and prepares motions to appoint or promote judges, now referred to as neo-judges.

Who are the Neo-Judges?

Judicial nominations (expressed in the NCJ motions for appointments) are prepared after the process of evaluation of a candidate in an open contest for a vacant position in each court.  From the outside, the group of the neo-judges may seem homogenous, but it is very diverse.

Since 2018, the President has appointed over 2200 judges recommended by the NCJ. The actual number might be smaller as some judges could have been promoted twice. This group can be divided into three sub-groups. One is composed of lawyers who completed the training in the National School of Judiciary and Prosecution, passed the judges’ exams, served as judges-trainees (assessors), and then, within 36 months applied for appointment for the position of a judge. The other group are lawyers who did not complete the training for judges but are qualified for judgeships due to their professional legal experience as solicitors, advocates, or prosecutors as well as court clerks or judges’ assistants. Contrary to graduates of the National School of Judiciary and Prosecution, these lawyers are not mandated to apply for judgeships before the politically captured NCJ. There are also judges who were promoted to higher positions on the basis of the new NCJ’s recommendation.

A report of the Helsinki Foundation for Human Rights notes that since 2018 47% of judges appointed upon the NCJ’s motion were judges of courts of lower ranks whereas 34% previously occupied non-judicial positions such as e. g. courts’ clerks. 19% were previously judges-assessors. The biggest group of judges (almost 1.000) was appointed to the district courts (lower instance courts) [p.4].

Finally, there is a relatively small, yet significant group of judges appointed in 2018 to the Supreme Court. This occurred despite an interim measure issued by the Supreme Administrative Court and the Prime Minister’s missing counter-signature on the President’s appointment announcement. These deficiencies exacerbated the already legally dubious appointment process of this group of judges.

Consequently, five years after the NCJ was captured, neo-judges adjudicate daily in all branches of Poland’s court system (common and administrative ones) and all ranks (from district courts up to the Supreme Court and Administrative Supreme Court). In 2021 alone, Polish courts ruled over 14 million cases.

Looking for Hints in Strasbourg and Luxembourg

The Court of Justice (CJEU),the  European Court of Human Rights (ECtHR) and national courts including the Polish Supreme Court have all taken issue with the changes to the Council’s appointment process and the NCJ’s resulting lack of independence.

Already in 2019, the CJEU formulated criteria that domestic courts can utilize to assess the NCJ’s independence, as well as independence of newly established chambers of the Supreme Court (including the infamous Disciplinary Chamber).

Later, in January 2020, the Supreme Court elaborated on this problem, holding that a Supreme Court composed of neo-judges is unduly composed in the light of the civil and criminal rules of the court procedure. However, in the case of common courts, it held that the court composed of neo-judge is unduly composed when ‘a defect in the appointment process leads, in specific circumstances, to a breach of the standard of independence and impartiality’ in the light of the Constitution, EU Charter of Fundamental Rights and European Convention on Human Rights.

In 2021, in W.Ż. the CJEU discussed legal validity of decisions taken by a court consisting of a person unlawfully appointed be new NCJ. It found that disregarding procedural rules of appointment can undermine the integrity of appointment and create reasonable doubts concerning judicial independence. Decisions made by a court bench consisting of such unlawfully appointed persons can be found ‘null and void’ (especially when neo-judge is the only person on the bench). The Court did not give, however, direct guidelines on what should be done with those ‘unlawful judges’ in general. All neo-judges were selected by the new NCJ, but not all of them have been appointed with such a flagrant violation of domestic rules as the persons in W.Ż. or Getin Noble Bank cases.

At the same time, ECtHR judgements focused on the problems of courts composed of neo-judges. In Reczkowicz v. Poland, the ECtHR concluded that the panel of the Disciplinary Chamber of the Supreme Court (entirely composed of neo-judges) that heard the applicant case did not constitute an independent and impartial court as all the judges were appointed upon the request of the new NCJ. Furthermore, in  Advance Pharma the ECtHR ruled that there was a violation of Article 6 of the Convention because the Civil Chamber of the Supreme Court, which decided the applicant’s case consisted of unlawfully appointed neo-judges. The Court explained that ‘irregularities in the appointment process compromised the legitimacy of the formation of the Civil Chamber’.

The Polish authorities have not implemented any of these judgements. The Polish governing majority has no interest in complying with the courts’ decisions in this regard. Moreover, the proper implementation of these judgements would require determining the status of the neo-judges and the validity of their rulings- a notoriously complicated question.

Possible Solutions

Despite the consensus between international and national courts that neo-judges’ status is legally flawed, their jurisprudence does not offer much guidance how to redress it. Should they be treated as judges and enjoy all the guarantees assigned to judges’ position? Or should they be treated as lapersons who never became judges? The answer to these questions is likely more nuanced than a simple yes or no.

The Committee of Ministers has recommended the following to implement the Reczkowicz group of cases: 1. restore independence of the NCJ; 2. ‘address the status of all judges appointed in deficient procedures involving the NCJ as constituted after March 2018 and of decisions adopted with their participation’; 3. ensure effective judicial review of the NCJ’s resolutions proposing judicial appointments; 4. ensure examination of the questions as to whether the right to tribunal established by law has been respected. Their implementation are a minimum condition for Poland’s return to the rule of law. Another hint was suggested by AG Bobek in his opinion in Getin Noble Bank, who wrote that “the ‘removability’ of non-independent judges is as important as the ‘irremovability’ of independent judges” and that “a legal system must be able to enforce compliance with the principle of independence of the judiciary”. Deciding who is independent (and impartial), and who is not, seems to be the crucial element of future transition to the rule of law.

Some (including the Judges Association IUSTITIA) argue that since the NCJ was not an independent body it cannot make a valid motion to appoint a judge. Hence, the candidates never acquired the status of a judge and are not entitled to the protection this status would entail. Supporters of this view have presented a draft legislation that propose a mechanism of transferring all the neo-judges (with the exception of judges who first served as judges-trainees, assessor) to their previously occupied judicial positions. Notably, the draft law does not address what to do with judges who previously occupied non-judicial positions.

This solution has clear flaws. First, restoring the rule of law should not lead to further violations of rule of law. Depriving judges of their status (even if acquired in a legally flawed process) in an automatic procedure and without a right to appeal to the court.  It not only goes against the recommendations of the Committee of Misters in Reczkowicz case, but also further undermines legal certainty. Moreover, such a neo-judge could present a relatively strong case before the ECtHR. A potential ECtHR win of a neo-judge could compromise the entire rule of law restoration. Secondly, neo-judges who previously occupied non-judicial positions might not be able to be returned to their “previous post,” which might no longer be available. They might litigate their deprivation of status, leading to the state’s liability.  Thirdly, the draft does not address the problem of the status of judgements rendered by the neo-judges. Given that it assumes that neo-judges were never appointed for the judicial position, their decisions should also be deemed non existing. Yet, the authors of this solution claim that the judgements will remain in force unless a party petitions the court to reopen the proceedings. Nonetheless, this might still endanger legal stability.

Other solutions might be available. We share the approach taken by some scholars argue (including Marcin Szwed) that the legal defects in the appointment procedure do not automatically lead to the conclusion that the appointed candidate is not a judge. Undoubtedly the NCJ is not an independent body, and it does not guarantee the highest standards in the process of assessing the candidates for judges. However, the question remains whether the legal and procedural flaws in this process would amount to claiming that the persons subjected to this process never acquired the status of a judge. Because the legal situation of the neo-judges differs, the mechanism adopted to redress their flawed appointment must show nuance.

A carefully designed authorisation mechanism for neo-judges would be a safer approach. This could take the form of vetting or re-examining all appointments of neo-judges (including the appointment of former judges-trainees). This would avoid an automatic removal procedure and the organizational chaos and risk of legal instability this carries. However, selecting the criteria for this verification process as well as how the time it would take to undertake could undermine public trust in this solution.

Political Response

Despite the scope of the problem and its detrimental impact the vital interests of Polish citizens, the issue has not been discussed during the on-going election campaign. The Polish opposition parties have focused on different problems, with the restoration of rule of law remaining a problem discussed in narrow circles of lawyers, civil society organizations and academia.

The biggest opposition party, Civic Coalition, in its brief and underdeveloped political manifesto “100 concrete things” suggests the potential removal  of neo-judges (described as ‘double-judges’ – a term reserved for unlawfully appointed persons in the Constitutional Tribunal). Meanwhile, the leader of Law and Justice Jarosław Kaczyński already announced that if his party wins the elections for the third time, it aims to complete the reform of judiciary. He likely refers to the idea of “flattening the structure of judiciary” – an idea to remove one instance of courts (likely the appellate courts, the highest courts in Poland’s three rank structure) and to force all judges to undergo a procedure before the NCJ to acquire the ‘unified’ status of a judge of the common courts (right now judges have the status of the judge of the court in which they adjudicate).

While civil society and academia are busy discussing how to restore judicial independence and trust in courts, the current ruling party thus clearly has a plan – which will not be consulted with anyone –to make such a restoration exceedingly challenging, if not impossible.