Defending the Judiciary

This article was written on 1 May 2022 and does not take more recent developments into consideration.

The Polish constitution from 1997 was designed for an open society: for a democratic, pluralistic structure, built on the foundation of the rule of law, with separation of powers and a strong judiciary. Before 1997, separation of powers was not a constitutional principle in Poland. The courts were part of a unitary power apparatus.  Until 1980, they did not control the legality of administrative decisions, and – until 1986 – the constitutionality of laws. Only with the elevation of courts to the rank of the third power in the Constitution of 1997, courts became an actor/competitor in the system of checks and balance of powers. Once the courts were able to decide on the meaning of law (also in public matters) and to limit the exercise of political power, they were increasingly treated as competitors and – possibly – opponents of political power.

Authoritarian Shift, Legalistic Appearance: Poland since 2015

Since the 2015 elections, Poland underwent a shift from liberal democracy to authoritarianism. Increasingly, visible changes are justified by nationalist and sovereigntist ideology. There is growing symbolic and actual Euroscepticism of the power apparatus.  A small and unstable parliamentary¹⁾ majority, cannot change the constitution. Instead, it changes ordinary legislation and constitutional practice by evading, hollowing out and bending the Constitution.  The language of public discourse and propaganda masks the change in constitutional azimuths. The parliamentary majority, while seeking to take full control over the functioning of the state and society, strives for legalistic appearances²⁾.  It is inserting changes made in ordinary laws into the existing constitutional framework using interpretative juggling. This is accompanied by the interpretation of the Constitution, made ad usum delphini, as a support to political power. The rift between the unamended Constitution and the ordinary laws and the growing decision-making of political power is becoming apparent. The situation bears resemblence to the Doppelstaat phenomenon characterized by Ernst Fraenkel.

Courts (as well as other independent control institutions, local governments, NGOs, and the media) become targets of actions leading to their colonization: absorption and neutralization (similar to the Gleichschaltung and Ausschaltung³⁾strategies). The aim is to discourage the courts from scrutinizing and criticizing the political power and – as a consequence – to use them to implement the agenda of this power.  The means used by the political power: exchange of personnel, strengthening of administrative supervision over the courts, harassment and extended campaigns against resistant judges – all serve the purpose of further colonizing the judiciary and to produce a chilling effect over judges.

Strategies of Resistance

Yet, actions by political power against the rule of law (and the courts) are met with judicial resistance. Theoretically, judicial resistance has a choice between three strategies: Firstly, judges can obey to laws they don’t accept (pursued more-or-less consciously, performed sometimes with distaste). Secondly, judges can express demonstrative subversion (with the risk of departure from service or relegation); Thirdly, judges can turn to interpretive activism to defend judicial independence. This is the most successful, intellectually enriching strategy. Unfortunately, however, it does not always protect against the danger of subversion.

During the communist period, the only more visible strategy of judicial resistance was the search for a “safe harbour”, with judges escaping into verbal “ultraformalism”. This escape, characteristic for socialist countries, in which judges hid behind the alleged “will of the legislator” was not infrequently (and paradoxically) used to hide, in reality, the interpretative activity of the court, inspired by democratic and humanist axiology⁴⁾. However, this strategy has left a negative effect: it has perpetuated in the judiciary the habit of declaring a formalistic attitude.  Declared formalism can hide real interpretive activism as well as convenient judicial opportunism.

After 2015, Poland’s judiciary has come under attack without a change of the Constitution.  Thus, the resistance and protests of the judicature have a strong legitimacy here: they defend the Constitution against the ordinary legislation and the decisionism of the executive. According to article 178 par.1 of the Constitution, judges are obliged to obey not only “laws”, as directed by the previous Constitution (before 1997), but also “the Constitution”. The conflict of the judge’s conscience versus his duty to obey the law thus now extends to the situation where the ordinary legislation and the constitution are inconsistent. Judicial disobedience to the laws may thus turn out to be a defense of the Constitution itself against ordinary laws that hollow out, bend, and bypass the Constitution.

Decentralizing Control and Mobilizing EU Law

As one answer, the (not very popular) dispersed judicial control of constitutionality is now gaining importance. De facto, the centralized constitutionality control exercised by the Constitutional Tribunal has ceased (after the effective absorption of the Constitutional Tribunal, i.e. after 2018). The ordinary courts have become the natural inheritor of this function ⁵⁾. Indeed, the courts are now using the Constitution more widely as a tool for reinterpreting ordinary legislation. It is recorded in the Supreme Court’s and the Supreme Administrative Court’s refusals to apply unconstitutional provisions of ordinary legislation. This applies in particular to acts issued without sufficient constitutional legitimacy (for instance, regulations related to combating COVID 19; the state of emergency on the border with Belarus, limiting freedom of the media⁶⁾; restrictions on freedom of demonstration). Common courts, citing the Constitution, acquit those accused of violating unconstitutional restrictions on the individual (participation in demonstrations, prohibitions and orders formulated in administrative regulations).

However, not all courts of general jurisdiction follow the strategy of judicial disobedience; the conflict between conscience and the duty to obey may lead to a more convenient strategy – which is obedience to the law, regardless of the doubts this strategy raises in the judge himself. Lower courts in particular have difficulties to practice interpretive activism effectively (inexperience; chilling effect). However, without quantitative studies of judicial decisions, it is difficult to say which strategy prevails (ruling contra legem in defense of the Constitution/escaping into convenient formalism). In the media, the resistance strategy is more conspicuous; in the practice of the Polish ombudsman, dealing with cases of foreigners, prisoners and other violations of individual rights, the second strategy is more visible.

The most visible strategy at present, however, is the judicial resistance strategy which involves the use of European⁷⁾ law. Under this strategy, courts use the standards of the CJEU and ECHR, expressed in answers to preliminary questions or in other cases against Poland.  Yet, invoking standards of judiciary independence, adherence to European standards of due process, or European law in general, has led to harassment against judges. Asking a question for a preliminary ruling is sometimes treated as a disciplinary offence. Harassing, lengthy investigations, disciplinary or even judicial proceedings are initiated; sometimes dozens of charges are brought against a single, particularly active person; some judges are suspended (resulting in an automatic pay cut); and even immunity is stripped on the grounds of “judicial⁸⁾ misconduct. The system of disciplinary responsibility against judges (the so-called Muzzle Law of 2019 and the operation of the Disciplinary Chamber in the Supreme Court) has been challenged in judgments of the ECtHR and the CJEU⁹⁾. However, those judgments are  not enforced; this has resulted in fines for Poland.

The European strategy made it possible to bring the problem of pressure on the Polish judiciary to the EU level: hearings in the European Parliament, presentation of alternative (to the government’s proposals) reports on the situation of the judiciary in Poland, as well as actions through preliminary questions.

Since mid-2018,  the Supreme Court, followed by the ordinary courts, started to use the preliminary question mechanism on judicial independence and effective legal protection (Article 19 TEU). After 2018, the Supreme Court, the Supreme Administrative Court and – for the most part – ordinary courts have asked a total of 38 such questions; 16 are still pending. This strategy has spread interest in EU law and its use by the courts. At the same time, however, successive judgments of the CJEU and ECtHR have sparked further retaliation against judges, and have given rise to the Polish Constitutional Court’s questioning of the Polish authorities’ obligation to submit to the CJEU and ECtHR’s rulings.

The strategy by the judges’ associations to resist the Government’s attacks on the judiciary was to prevent judges from participating in promotion competitions organized with the participation of the neo-National Council of the Judiciary. (Currently, out of about 10,000 judges, about 10% hold positions through a procedure tainted in it by the neo-NCJ). One can see a decrease in interest among judges in extending the service – in particular, in judges who already have pension rights. The media widely commented on the example of a judge in his prime, who – threatened by proceedings to waive his immunity – resigned from his post.

Three Modes of Resistance: Individual, Symbolic, and Institutional

Another strategy is one of individual resistance by judges through their own complaints to the ECtHR and to national courts. Judges following this strategy have challenged the violation of Article 6 of the ECHR against them (see the cases Broda and Bojara v.Poland,  Dolinska-Ficek and Ozimek v. Poland; pending: Grzęda v. Poland, no. 43572/18, Żurek v. Poland, no. 39650/18, Tuleya v. Poland, no. 21181/19, Tuleya v. Poland (no. 2) no. 51751/20, Sobczyńska and others v. Poland, nos. 62765/14, 62769/14, 62772/14, 1178/18. In the case of judge  Wróbel v. Poland (application no. 6904/22), for waiver of immunity, ad interim measure was granted, staying the proceedings before the Disciplinary Chamber of the Supreme Court, which, according to the rulings of the CJEU , should cease its activities.)

The cases before domestic courts concern the protection of judges’ personal rights in connection with statements made by the Minister of Justice ( judge Koska-Janusz, judge Morawiec), the Prime Minister (a complaint filed by 30 judges from Krakow), an MP (a suit filed by judges  Gersdorf and  Rączka against Mr Piotrowicz, currently a judge of the Constitutional Tribunal); and for reinstatement of a judge to work in court (judge  Juszczyszyn). These cases usually end with plaintiffs winning, which, however, does not always result in the execution of judgments.

Finally, a strategy formerly considered inappropriate for the judiciary in Poland, is a strategy of symbolic resistance. This resistance is officially challenged by the neo-NCJ (by passing a resolution banning the wearing of external symbols, e.g. popular T-shirts with the inscription “Constitution”). Acts of symbolic resistance include, for instance, open letters, resolutions, protests, demonstrations, also in defense of harassed colleagues, monthly “days without proceedings”¹⁰⁾, or the public expression of alternative positions by former Constitutional Tribunal judges or former NCJ members.

Likewise, the se of internet and social media capabilities to document rule of law violations, the publication (also in English) of newsletters by judges’ organizations (Themis, Iustitia), providing information on harassment, and publishing alternative reports to official documents and government positions, presented to EU bodies, belong to this register of resistance.  Last, but not least, the cooperation with the bar and prosecutor’s offices and with NGOs should be mentioned here. The Committee for the Defense of Justice, for instance, is an agreement of 13 organizations of judges, prosecutors and other initiatives involved in protecting the rule of law. The Polish Judges Association “Iustitia” prepared and submitted to the Parliament a bill to heal the justice system.

A final strategy of resistance to be discussed here is of institutional nature. This kind of resistance could be observed in the Constitutional Court from 2015 – 2018¹¹⁾ and the Supreme Court from 2018 to the present. After several years of resistance, due to the expiration of the term of office of judges appointed before 2015, the Constitutional Court has become colonized. (In February 2022, the current attorney general joined the Tribunal’s judgeship). It has now become an instrument of providing legitimacy to the Government: in its new role, it has confirmed the constitutionality of laws enacted in the current period, as well as challenged¹²⁾ the principle of primacy and direct effectiveness of EU law, the admissibility of ad interim measures by the CJEU¹³⁾ and declared unconstitutional Supreme Court rulings issued as a consequence of the CJEU’s response to a preliminary¹⁴⁾ question. The Constitutional Court has also questioned the effectiveness of ECHR judgments and, indirectly, the European Convention on Fundamental Freedoms and Human¹⁵⁾ Rights itself.  The Supreme Court, by contrast, is still resisting attempts of absorption. However, the increase in the number of “new” judges in the Supreme Court, changes in the law and transfer of powers from chambers staffed with former judges to chambers with new judges, and the take-overof presidents’ positions (of the Supreme Court and individual chambers) by “new” judges make resistance increasingly difficult.

Conclusion  

The strategies of judicial resistance employed after 2015 are diverse and complementary. They appear with varying intensity at different times over the last few years.  They respond to changing and intensifying the pressure of political power on the judiciary. They are a consequence of the judgments of the CJEU and the ECHR concerning the administration of justice in Poland. To conclude, three final observations can be made: Firstly, the strategies discussed in this blog post have resulted in resistance and retaliation by the Government, in a spiral of actions and counteractions that had a negative impact on the efficiency of the justice system and legal security. Secondly, institutional resistance (by the Constitutional Tribunal and the Supreme Court) causes internal dysfunctions and, consequently, a decline in the prestige of the resisting bodies. And finally, a multicentric system of law (national law/EU law/ ECHR) is in itself difficult to apply and becomes chaotic when its coherence is questioned de jure (rulings of the Polish Constitutional Tribunal) and de facto (judges’ fidelity to European standards versus harassment for such an attitude by the administration of Polish justice).