Blinded by Legality

The Venice Commission’s recent opinions on Poland’s judicial reforms have prioritized formal legality over substantive judicial independence. The Commission thereby effectively legitimizes the judiciary captured under the previous autocratic government. The Commission’s shift contrasts sharply with its own prior critiques and European court rulings, raising concerns that the Commission’s stance now shields autocracy under the guise of legality.

Between 2015-2023, Poland’s judiciary was hijacked by a governing party with autocratic ambitions bent on the consolidation of power. The PiS government illegally forced judges onto the Constitutional Court, politicized the National Judicial Council, mass-fired court presidents, compromised the judicial appointments process and installed about one-quarter of the entire Polish judiciary through this politically tainted process. In addition, it created two new Supreme Court chambers to bring the rest of the judiciary under political control. Both the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ) determined that many of these actions were violations of EU and ECHR law. These assaults on the judiciary, almost all authorized by formal law, also violated the Polish Constitution, though after the Constitutional Tribunal was captured, there was no independent institution that could say so.

The new Polish government, elected one year ago, has tried to restore the independence of the judiciary in draft proposals put before the Venice Commission. But the Venice Commission has rejected the core elements of these plans in two disappointing opinions, expressing the view that even improperly appointed judges must now be treated as if they are legitimate members of the judiciary as long as the procedure through which they were initially appointed was formally legal.

The Venice Commission changes its mind

The Venice Commission’s opinion of 14 October 2024 answered a set of abstract questions posed by Polish Justice Minister Adam Bodnar about the reform of the ordinary judiciary. In its opinion of 7 December 2024, it assessed a package of laws that would reform the Polish Constitutional Tribunal.   The rapporteurs – a very distinguished group – clearly understood how dire the situation is, but they nonetheless insisted that judges appointed “legally” may only be dismissed in a process run from within the judiciary or else the reforms would constitute a violation of either separation of powers (October opinion, paras 21-22) or the rule of law (December opinion, para. 31). As a result, only a declaration by the judiciary that their own appointments were unconstitutional or irregular would permit judges who had been appointed in a formally legal but tainted process to be removed.

The Venice Commission reasoned that, with regard to the ordinary judiciary, “the restoration of the rule of law should not itself cause a breakdown of the system and should not itself infringe the principles of the rule of law” (October opinion, para. 17). And with regard to the Constitutional Tribunal:

“All of the criticism that can be leveled at the Constitutional Tribunal for its role in undermining the Polish constitutional order and contributing to the systemic deficiencies of the judicial system (as highlighted in the caselaw of the ECtHR and the CJEU) does not change the fact that 12 out of the current 15 judges of the Constitutional Tribunal have been elected in accordance with the constitutionally prescribed procedure. . .” (December opinion, para. 31.)

The Venice Commission opinions contrast sharply with a recent ECtHR pilot judgment in the Walesa case, which summarized a set of ECtHR decisions regarding Poland that have repeatedly found that all “legal” appointments to judgeships made by the compromised National Judicial Council (NJC) – by now covering fully one-quarter of the entire Polish judiciary – were made “in manifest breach of the domestic law” because the NJC “no longer offered sufficient guarantees of independence from the legislative or executive powers” (para. 169). Instead, the law that changed the composition of the NJC “had practically removed . . . the safeguards of the independence of the judiciary . . . This, in effect, enabled the executive and the legislature to interfere directly or indirectly in the judicial appointment procedure, a possibility of which these authorities had taken advantage” (para. 173). The ECtHR argued that “legal” changes in Poland produced a serious violation of the ECHR and just a few weeks ago, indicated that it was giving the Polish government more time “to adopt general measures” to fix the problem.

The two new Venice Commission opinions now make changes in Poland politically impossible that would satisfy the ECtHR, and they represent a massive change of heart for the Venice Commission, which also seems to have ignored its own prior opinions in preparing its 2024 assessments. In reviewing the legal changes to the appointments process at the Constitutional Tribunal in 2016, the Venice Commission criticized the overwhelming power of the President of the Republic in shaping that court (para. 28-31) above and beyond condemning the three completely illegal appointments that he had already certified. In evaluating the political restructuring of the National Judicial Council in 2017, the Venice Commission found it disturbing that the existing peer-elected judges on the NJC were fired to make way for “15 judicial members [who] are not elected by their peers, but receive their mandates from Parliament” (para. 24). In commenting on the two new chambers at the Supreme Court that were established as part of the 2017 reforms, the Venice Commission noted that “it is of particular concern that the Draft Act seems to enable the President of the Republic to determine almost completely the composition of these two chambers and to ensure that they are wholly or mainly composed of newly appointed judges” (para. 43). As the Venice Commission explained in its 2020 report on the Polish judiciary, “[r]eorganization of the NJC and mass replacement of court presidents by the Minister of Justice was followed by an intensification of the disciplinary procedures against ordinary judges” (para. 11). In short, over a series of strong opinions, the Venice Commission had documented that the independence of the Polish judiciary was severely damaged by legal reforms that did not meet European standards. Taking those legal reforms as valid law in Poland now sends, at the very least, mixed signals.

The Venice Commission is out of step with EU and ECHR law

It wasn’t just the Venice Commission that expressed alarm over what was happening to the judiciary in Poland as the legal reforms by PiS were being enacted. The ECJ held, among other things, that the sudden lowering of the judicial retirement age violated EU law and that the composition of the Disciplinary Chamber of Supreme Court meant it was not a properly constituted tribunal. Most recently, the ECJ has indicated it would no longer take preliminary reference questions from the judges appointed by the tainted NJC, judges that the Venice Commission now insists must be regarded as lawfully appointed. The hit to judicial independence constituted the primary reason for the EU institutions to suspend all of Poland’s Cohesion and Recovery Funds starting in 2022.

The ECtHR has also been extremely critical as we have seen, but in other judgments  it argued that panels of the Constitutional Court, as well as the entire Disciplinary Chamber and Extraordinary Chamber of the Supreme Court, were unlawfully composed. After the Constitutional Tribunal declared that parts of the ECHR were unconstitutional under Polish law, the Secretary General of the Council of Europe activated the rarely used Article 52 ECHR procedure against Poland in December 2021 and in November 2022, she announced that Poland’s obligation to guarantee the Convention right to fair trial by an independent and impartial tribunal was not fulfilled.

The “legal reforms” made by the PiS government ensured that Poland’s judicial independence fell farther and faster than any recorded case according to democracy raters. But because they were legal, the Venice Commission now insists that they must be respected.

The status quo that the Venice Commission has taken as a rule -of-law baseline

The new Polish government elected in 2023 proposes to do precisely what the Venice Commission suggested in its opinions of 2016, 2017 and 2020 – which is to roll back the PiS government’s reforms . Faced with the new government’s proposals, however, the Venice Commission has suddenly decided that changing the status quo would be impermissible because Poland’s judges were appointed in procedures that were legal at the time. Let’s examine those “legal” procedures.

All of the judges presently on the Constitutional Tribunal were installed by the prior government on a party-line vote. A pending infringement action at the European Court of Justice alleges that this Tribunal has repeatedly violated EU Law. The Constitutional Tribunal has also violated ECHR law when it declared parts of the ECHR unconstitutional under Polish law. Even within the Polish legal system, judges in the ordinary courts who still value judicial independence have been bypassing the Constitutional Tribunal, believing it to be a government-controlled institution and not a proper court.   Three judges were unlawfully installed on the Tribunal when the PiS government first came to power, but that’s not its only problem. The Tribunal’s president and vice-president, who have presided over the body for nine years, were also irregularly installed.  Judges who were elected to the Tribunal prior to 2015 were excluded from preparing cases after 2016, prevented by the PiS-appointed judges from exercising their lawful responsibilities on the bench. The irregularly appointed president of the Tribunal has just been irregularly replaced this month by the PiS-aligned-holdover national President, Andrzej Duda. The new Tribunal president is a former prosecutor, a protégé of the former Justice Minister Zbigniew Ziobro who engineered the judicial reforms that have been decried by the ECJ, the ECtHR and (at least previously) the Venice Commission. The Constitutional Tribunal’s legitimacy problems run deep – and they continue to this day.

In the ordinary courts, nearly all of the presidents and vice-presidents below the level of the Supreme Court –  158 judges – were fired by law in 2017-2018 and replaced with new leadership appointed by the tainted NJC which was itself packed with politically appointed members reflecting the views of the governing party. In fact, all judges throughout the system since the NJC was politically captured in 2017 have been appointed by this body.  And the judicial leaders whose seats on the bench were procured by firing their predecessors have been responsible for case assignments within their courts even since.  The NJC’s ability to lawfully appoint judges has been sharply challenged by the ECJ because of the interference of politics in its composition and, as we have seen, the ECtHR has already found appointments made by that body to have violated ECHR law. (For a catalogue of all of the European cases that have found fault with Poland’s judiciary through early 2023, see this.)

Under these circumstances, should the new government’s hand be stayed in reforming the judiciary until the packed Constitutional Tribunal rules that its own existence is unconstitutional? Should the politically selected court presidents and the compromised NJC now preside over the restoration of the rule of law? These are what the Venice Commission’s new opinions leave as the primary lawful options.

The Venice Commission admitted that some violations of the rule of law were so egregious that extraordinary measures could be taken. So, for example, the three judges pushed onto the Constitutional Tribunal when the PiS government first came to power in 2015 must be removed because their original appointment was unlawful (December opinion, paras. 23-29). But where the appointments were lawful, as the Venice Commission adjudges all of the other appointments to be, the rule of law requires that judges be treated as presumptively legitimate, removable only by a judicially led process and for individual cause. That is a reversal of the Venice Commission’s own 2017 opinion.

The Venice Commission’s new opinions essentially give the prior Polish government a free pass for its attacks on judicial independence because they destroyed it by law. The Venice Commission does not seem to realize that legality is the fashionable fig leaf behind which autocracy hides itself these days.    Where once democratic governments were toppled by coups, now elected autocrats typically consolidate their power by law. They start by capturing the apex court that could tell them that what they are doing is unconstitutional. And, once neutralized, the rest of the judiciary is crushed by laws that formally pass constitutional muster according to the packed apex court, but that would have been anathema to any independent court. That’s a general recipe we’ve seen over and over again, and it is precisely what happened in Poland. Contemporary autocracy is formally, often obsessively, legal.

Judicial independence should be assessed by whether the judiciary is actually independent, not just by whether the judiciary was (apparently) lawfully constituted, especially not when the laws were written by aspirational autocrats. An unlawfully constructed judiciary is clearly a problem, but so is a judiciary that is legally constructed to be politically dependent.

What the Venice Commission should have said

What should the Venice Commission have said in assessing the proposals of the new Polish government?  It should have taken seriously its role in restoring the rule of law to countries that have experienced democratic backsliding. The new Venice Commission opinions instead look only at what I have called “the rule of law writ small,” in which the rule of law is seen only from within a particular legal system and its vitality is judged only by reference to national legality. But as a body articulating the standards of  the Council of Europe, the Venice Commission should think in terms of “the rule of law writ large.” Member states of the EU and CoE join these transnational organizations by promising to honor their values, which are not mere aspirations but also law. Member states must therefore build into their domestic legal systems the transnational standards that they have signed onto as well. The rule of law writ large requires that national law be harmonized with a country’s transnational obligations.

Seen this way, it may be justifiable to violate the rule of law writ small (that is, to violate national law) in order to achieve the rule of law writ large (that is, to restore compliance with transnational standards). Using European values as the North Star for navigation in these difficult waters, the rule of law writ large allows us all to clearly distinguish what the PiS government did as it dramatically pulled the Polish legal system out of compliance with European law from what the current coalition government is doing now as it tries to bring Polish law back into compliance with European law. This is not a slippery slope or the opening of a tit-for-tat game in which first one side violates all of the rules and then the other side is given implicit permission to do the same. Using European law as a standard, which is after all what the Venice Commission is supposed to do, a government that promises to restore the rule of law writ large is doing something totally different than a government that previously destroyed the rule of law writ large.

During the eight long years of the PiS government, Poland drew the criticism of the Venice Commission as it repeatedly violated EU and ECHR law through the very national laws that the Venice Commission now wants to say must be honored in Poland. It seems odd, to say the least, that the very laws that packed the bench with government supporters – laws that were repeatedly challenged through infringement actions, preliminary references and ECtHR decisions that to this day have not been honored and that were sharply criticized in real time by the Venice Commission should now be worshipped lest the rule of law be violated. Poland now seeks to undo the effects of the assaults on judicial independence, but the Venice Commission insists that it would be a violation of the rule of law for it to do by reversing the effects of the laws that destroyed judicial independence in the first place.

The national election in Poland one year ago may have changed the government but it did not change the judiciary, which is still in the pocket of its prior masters. Both international rankings of judicial independence and Polish public opinion reflect the fact that Poland’s judiciary is still no longer meaningfully independent of the prior government’s autocratic aspirations. The new government consulted the Venice Commission on its proposed reforms to the judiciary no doubt expecting that the Venice Commission would repeat the criticism expressed in its earlier opinions and welcome proposals to restore judicial independence and the rule of law writ large. Instead, the Venice Commission ignored its earlier condemnations of the PiS government’s judicial reforms and essentially made Poland safe for autocracy by deeming its captured judiciary to be lawfully installed. Blinded by legality, the Venice Commission has lost its way.