Schrödinger’s Judges

The Polish rule of law restoration, following the opposition’s victory in December 2023, centres on the status of ‘neo-judges’ appointed after a 2018 reform under the Law and Justice (PiS) party, which altered judicial appointments in the country. This blog highlights the tension between ‘old judges’ (pre-2018), accusing ‘neo-judges’ of ethical compromise, and the new government, which aims to maintain judicial continuity and uphold past rulings. As a result, neo-judges find themselves in a liminal state akin to Schrödinger’s cat, their legitimacy simultaneously affirmed and denied. This paradox encapsulates the broader struggle over judicial authority and political influence in the country.

Judicial uncertainty

According to the Polish Constitution, the National Council of the Judiciary (NCJ) is responsible for selecting candidates who are later appointed by the president. In 2018, the ruling PiS terminated the term of the previous NCJ and overhauled the selection process for its members. This reform shifted the method of selection from an internal election among judges to one conducted by the parliament. At the time, the government justified this change as a necessary step to dismantle what it characterized as a corporatist, closed system that enabled abuses. However, the new system has been scrutinized in a series of rulings by the Polish Supreme Administrative Court, the Polish Supreme Court, the Court of Justice of the EU, and the European Court of Human Rights, all of which have raised concerns about its impact on judicial independence and citizens’ right to an impartial judiciary. These judgments did not focus on the qualifications or conduct of individual judges. They concerned structural and procedural aspects of the new appointment system. These rulings give rise to the claim that judges appointed after 2018 do not constitute a court within the scope of the Polish Constitution, European Union law or the European Convention on Human Rights. They also provoked the Constitutional Court, controlled by the judges loyal to PiS, to issue several rulings questioning the competence to examine the independence and correctness of the appointment of judges in Poland.

The rulings formed also a basis for dividing the Polish judiciary between the “old judges” (appointed before the 2018 reform) and ‘neo-judges’ (appointed after) whose number increased over the years. The new NCJ, ignoring internal and European rulings and invoking the Constitutional Court, has been operating in its new form and electing judges. According to the Helsinki Foundation for Human Rights estimates, only between January 2018 and August 2023 the president, at the request of the new NCJ, appointed 2204 persons to the positions of judges of all types of courts at all levels and it continues to work till this day. Neo-judges currently account for about 20-25% of the total number of judges in the country and each of these judges, depending on the specific court, can handle between 300-1500 cases per year.

Representatives of the old judges, who have questioned PiS’s reforms from the very beginning and have been mobilizing the courts to delegitimize the reform, are demanding drastic reform from the new government. They link participation in the new procedures to the ethical qualities of a judge and accuse the neo-judges of opportunism by taking advantage of the rule of law crisis to accelerate his career and advance in the judicial structure.

The ministry’s plan

The new government faces significant practical and political problems. The practical part is in concert with the fact that a direct challenge to the status of neo-judges would also mean challenging all their rulings. This could result in years of legal disputes and the need to repeat thousands of court proceedings. It would constitute an additional burden on the already inefficient Polish justice system. The political part of the problem is related to the fact that affiliated with PiS President Andrzej Duda does not agree with questioning his prerogative to appoint judges and is ready to veto all legislative attempts to reform the NCJ. According to the president, any procedural concerns about the way members of the NCJ are appointed are cured by his signature on the final judicial nomination and “neither the executive nor the legislature, but also judges in the exercise of judicial power, should question the validity and effectiveness of the appointment of another judge or a priori question the independence of another judge, relying only on flimsy arguments from a completely different order, such as current political disputes.”

In September, Minister of Justice, Adam Bodnar presented a rule of law restoration plan which assumes dividing neo-judges into three groups. The first and largest group (around 1600 persons) are young judges who have graduated from the National School of Judiciary and Public Prosecution (the School) and who “did not particularly have a choice”. One goes to School right after graduation, the education there is technical and apolitical in nature. It is also established to be appointed as a judge after graduating from the School and serving some time as an assessor. These judges are to remain in office and their status will not be questioned. The second group (around 500 persons) are those promoted by the new NCJ to positions of leadership in the judiciary and who have ‘participated in the construction of a non-democratic order in Poland.’ Their promotion is to be revoked, and they are to return to their previous positions. These individuals can also expect disciplinary proceedings which may result in expulsion from the profession. The third group (around 900 persons) are those who did not actively participate in the construction of the new order but merely took advantage of the opportunities opened by the new NCJ. Their promotion is also to be revoked but when these people ‘make an active regret’ i.e. ‘a statement and say that it was their mistake in life’ and voluntarily return to the court where they previously adjudicated then no disciplinary proceedings will be initiated against them. The ministry’s plan combines the pragmatic need to maintain the validity of the rulings of neo-judges with the language of moral condemnation of their participation in procedures by the new NCJ. The ministry expects the presidential veto issue to be resolved with the spring 2025 election, anticipating a ruling coalition victory.

Part of the government’s plan is to actively seek the support and legitimacy of the European institutions. In May 2024, i.e. even before the reform laws were not only passed but fully presented, the European Commission decided to terminate the Article 7 procedure of the EU Treaty against Poland. Furthermore, the Venice Commission, on the request of Minister Bodnar, adopted the October 14 joint opinion on the status of Polish neo-judges. The Commission has confirmed the general direction of the Ministry’s plans about the need to differentiate neo-judges and the lack of grounds for declaring all appointments by the new NCJ invalid. The opinion at the same time denied the possibility of legislatively fixing the invalidity of judicial appointments as contrary to the rule of law. The opinion asserts that Parliament lacks authority to decide who is a judge but supports a statutory solution addressing the consequences of unconstitutional judicial appointments. It envisions a reformed NCJ handling individual cases, with Parliament defining procedures. The Commission also recognised the need to maintain the judgements made by neo-judges with a time and procedurally limited possibility for citizens to review these judgements. The Commission did not consider any moral and ethical arguments about the motivations of those running for judicial office. In the Commission’s optics, the neo-judges are judges whose appointment was compromised by “deficient procedure”. This opinion is a valuable pointer to the Ministry, which at the same time gives resources for the mobilisation of neo-judges.

Mobilization of the neo-judges

PiS’s reforms were based on the belief that the key to control of the Polish state is control of the judiciary, and the key to control of the judiciary is control of judicial appointments. However, the party underestimated the mobilization of the judicial community, which through protests, communication with citizens, strategic litigation, and rulings bypassing legislation by using human rights standards slowed down the emergence of a new judicial elite. It slowed down but didn’t stop. What PiS reforms have resulted in is a significant group of judges who owe their professional and financial position to the windows of opportunities that PiS introduced. After the change in power and emergence of the new government in December 2023, this group began to mimic all the strategies of ‘old judges’ to undermine and slow down any rule of law reform attempts. They established an association “Prawnicy dla Polski” (Lawyers for Poland) that critically assesses any attempts at restoration, claiming that some groups ‘under the pretext of restoring the rule of law are actually calling for the demolition of the constitutional bodies of the state.’ They also appear in the media, especially alternative YouTube media, where they present their narrative, presenting the new government as an inherent threat to the rule of law and expressing objection to the questioning of their judicial integrity. The neo-judges are also trying to use the European judiciary to strengthen their position and postpone any verification of their status. They request a preliminary ruling from the CJEU just to have their questions accepted for consideration and thereby validate their status. After all, only a “court” and a “judge” can submit such requests.

Just recently Tomasz Szanciło of the Civil Chamber of the Supreme Court asked for a preliminary ruling in a proceeding concerning a decision imposing a fine by the Polish President of the Office of Competition and Consumer Protection. In the justification for his request, Szanciło indicated that questioning the independence of a judge without indicating the specific “circumstances of the nomination process of this judge with the circumstances of the case being considered’ or the specific ‘conduct of this judge after appointment, his susceptibility to influence from the legislative or executive power” is an abuse of law and should not be protected. Szanciło motion is part of a larger neo-judges’ tactic that is aimed at limiting the procedural possibilities of questioning the status of neo-judges by narrow interpretation of European rulings and emphasising, in the spirit of the Venice Commission, the lack of influence of any court decisions on invalidity ex tunc the decisions on appointment by the new NCJ. In response, in a judgement from November 7, in Case C-326/23, the CJEU held that “the judge of the Civil Chamber, who makes up the single-judge formation which referred the question to the Court for a preliminary ruling, does not constitute a court or tribunal within the meaning of Article 267 TFEU” and refused to answer the question. Despite the hopes of the neo-judges, the CJEU develops a broader interpretation of its rulings. This judgement deepens the liminal status of the neo-judges, as the lack of the “court or tribunal” attribute now applies not only to specific chambers of the Supreme Court and a limited range of cases, but to all judges appointed after 2018. The government has also effectively facilitated the undermining of the status of neo-judges by the European Court of Human Rights. The Tribunal decided to strike from the list of cases the complaints of 22 Polish citizens about the consideration of their cases in the Supreme Court by neo-judges because the Polish government has settled and will pay compensation of EUR 10,000 per applicant. For the first time, the Polish government officially recognised the appointment of neo-judges of the Supreme Court as a breach of Article 6 ECHR (right to a fair trial) of the Convention. This opens a potential avenue for recognition of a human rights violation for any citizen whose case the neo-judge heard.

Schrödinger’s judges?

Doubts about judicial reforms in other countries (e.g. in the case Ástráðsson v Iceland or Associação Sindical dos Juízes Portugueses case) were on a much smaller scale and involved the cooperation of all domestic political institutions with European bodies. Against this background, not only has PiS managed to saturate the judicial system with new judges to such an extent that they can organize to try to defend their interests. Also, some domestic political actors, the Constitutional Court and the President are questioning the very possibilities of assessing the Polish system of appointing judges and the need for the rule of restoration. Importantly, the whole problem is somewhat abstract, it is a conflict between new and old legal elites, that occurs not only above the heads of citizens but also most of the judges themselves. The conflict concerns the composition of the body electing candidates for judges and not specific cases for citizens. This makes the issue more political, related to the balance of power within legal profession, than to legal arguments.

Judges appointed after 2018 are thus in a state of limbo, situated between the day-to-day performance of their duties and the judicial and public discourse that undermines their status under constitutional and European law. They find themselves simultaneously in the role of both the object and the driving force behind the divergence between Polish, day-to-day legal interactions and constitutional and European legitimizing discourse. As objects, their very legitimacy is challenged by their verification through the “incorrect” ECJ, regardless of their individual intellectual and ethical qualities. As a force, they deepen the divergence simply through their everyday judicial activity. They are akin to the cat in Schrödinger’s paradox: whether they are truly judges or not will only become clear when a political force gains the position allowing them to “open the box” and legislate. And this depends on the results of incoming presidential elections. It seems that the sovereign, when it comes to the rule of law, is the one who determines who is a judge.