Restoring Polish Judicial Independence

Restoring the Polish rule of law without doing more damage to it is a vexing challenge. Building Back Better becomes even more complex when the current president – part of the autocratic Law and Justice (PiS) party, which lost the previous elections – refuses to sign off on any law. Yet few would have expected the Venice Commission (VC), of all institutions, to make things even more complicated.

This contribution first tracks the state of play in Poland following the VC Opinions of October 2024 and December 2024. Given the central role of the VC’s thinking in Polish efforts to find a way out, and adding to Kim Lane Scheppele’s analysis, it then goes on to critique the Opinions on legal and strategic grounds before proposing an alternative route.

Mixing in the VC Opinions with Polish rule of law restoration

Upon taking office, the new government immediately initiated steps to restore the rule of law (this piece by Jakub Jaraczewski provides a comprehensive state of play). It first tried to “turn off the tap” on irregular judicial appointments by tabling a legislative proposal to reconstitute the Council of the Judiciary (KRS) to let it consist of a majority of independent and impartial members. In an effort to delay the process, the President referred that draft for review to the (captured) Constitutional Tribunal.

Second, the government sought a solution for all judicial appointments made through the KRS after its 2018 PiS capture. For this purpose, it asked the VC for advice. This February, a committee tasked with drafting proposals presented the Minister of Justice with two drafts, not one – one following the VC Opinions, the other not. This was telling, an indication that many in Poland did not find the VC’s advice compelling. In a recent interview with scholar and journalist Anna Wójcik, the Minister of Justice, Adam Bodnar, suggested yet another solution. He has not yet indicated what legislative solution he will table.

What all three proposals have in common is that they take the VC October and December 2024 Opinions as a reference point. However, any legislative proposal can only be expected to become law if the current President is replaced in May by someone from the democratic coalition. So, there is some time. The combination of these elements justifies a(nother) close look at the VC Opinions. This is necessary because it must be observed with the greatest respect that the VC, even if acting from the correct intuition, has both the law and the strategy wrong. As a result, clearly available alternatives that are legally sound and strategically much more savvy have not yet been considered, let alone discussed.

Absolutely right intuition, but simply wrong on law and strategy

The VC starts from an important premise. It states that it is unwise to facilitate, through legislation, an understandable desire to wipe the slate clean of all individuals appointed through the neo-KRS since 2018 (October Opinion, para 21). It is easy to agree, too, with the general slogan that you cannot restore the rule of law by breaking it (December Opinion, para 20). An autocratic regime acts like a bull in a China shop. However, when you are put in charge of re-democratisation, you cannot, even with all the right intentions, effectively write a new chapter in the autocratic playbook where winning elections means “bringing your own judiciary”. So, re-democratisation forces find themselves in a world that, rather than black and white, where everyone is either independent and impartial or not, is fifty shades of grey – with problematic individuals riddling your entire court system. You need to deal with that reality rather than delete that reality at even greater costs.

Still, the gist of the Opinions is problematic for two simple reasons: it interprets the law too narrowly and adopts a lopsided strategy. It should be acknowledged that this was hard to get right, because it would have required looking beyond the formulation of the Polish government’s abstract and somewhat leading questions (October Opinion, para 3). Yet their clear intention was to get a workable answer to the question: how do we solve this mess legally and quickly? Quite frankly, the VC could have been expected to interpret the questions as such.

First, and even if “rule of law” is a term of art, the Opinions operate with an unduly restrictive understanding of what the “law” in the “rule of law” is in this case. In particular: they ignore the implications of important parts of the Strasbourg case law on Polish judicial independence. Moreover, even if lip service is paid to it (October Opinion, para 23 and 25), they effectively disregard a parallel system of binding commitments for Poland: EU law. Europe’s two top courts have each assessed the implications of activities by individuals appointed post-2018 by KRS. As is well-known (including to the VC, as it quotes the relevant cases – October Opinion, para 24), the Strasbourg Court held that such individuals cannot help constitute a tribunal established by law and thus cannot guarantee the right to a fair trial under Article 6 ECHR. According to the Luxembourg Court, a judicial body that contains even individuals appointed post-2018 by KRS, cannot refer an admissible question to the CJEU under the preliminary reference procedure. This is simply because, as a matter of EU law, their very presence prevents them from being seen as “a court” (for two recent examples, see Cases C-718/21 (December 2023) and C-326/23 (November 2024)). These crucial judicial findings are either not given their due weight or are entirely absent from the Opinions. Instead, the Opinions take as their analytical starting point the national situation created by the Bull in the China Shop.

Thus, even if the VC’s correct premise is that you cannot restore the rule of law by breaking it, you need to then at least have a full understanding of the entirety of the norms constituting binding “law” here for the State seeking your advice. Otherwise, there is a risk of believing one is upholding the rule of law while simultaneously neglecting essential parts of it.

Second, and even more surprising, there is also a strategic problem with the Opinions. The official name of the VC is European Commission for Democracy through Law. This assumes law as a starting point. But – and this is explicated less often – it should also assume the strategic premiss of the desirability of offering authoritative expertise to a political context in a way that supports swift re-democratisation and slows down de-democratisation. The Opinions contain plenty of strategic considerations. But they now have the effect of freezing the effects of de-democratisation rather than facilitating re-democratisation.

Strategically, if the goal is re-democratisation, you would expect a single-minded focus on using the law to Build Back Better. The purpose is that, should autocratic forces regain power, they should not be able to just pick up on their Bull-in-The-China-Shop tactics from where they left off. This militates in favour of a relentless effort to help those in charge of re-democratisation identify those aspects of the existing (case)law that help solve the problem. We can illustrate this by returning to the same examples. Europe’s two highest courts are primarily concerned with the end-of-pipeline implications of politically captured judicial appointments (in that it excludes a tribunal being established by law as a matter of Article 6 ECHR and excludes the possibility of these individuals asking preliminary questions). This offered the VC the law-informed option to also centre recommendations around systemic end-of-pipeline considerations (“post-2018 appointments are problematic until proven otherwise”). Therefore, it is strategically odd, as the VC did, to solely focus on the beginning-of-the-pipeline considerations, assuming the legality of tenure under national law (“each appointed individual is innocent until proven guilty”). By taking this course, for all practical purposes, the VC partly whitewashed constitutional vandalism and provided de-democratisation forces with authoritative backing – despite there being no legal necessity to do so.

The alternative: Weaponising ECHR and EU law

Part of the reason why the combination of getting the law too narrow and the strategy upside-down is so unfortunate is that a more accurate analysis of both would have led the way to considering obvious solutions here. Regarding the law, the binding and hierarchically superior nature of ECHR and EU law offers an important chance to escape, as Kim Lane Scheppele has called it, the national constitutional prison that is created by local autocrats. The one crucial limitation for local autocrats is that they can only fully control their local legal context. However, international and EU law continue to apply in parallel, meaning that de-democratisation cannot be completed purely nationally – unless, of course, a state exits these treaties altogether. For the Polish government, and for all democracy-minded legal actors in Europe, the legal and strategic solution has always been, and remains, to leverage international and EU standards.

Concretely, the Polish Minister of Justice should consider a fourth possibility. Rather than treating the restoration of the rule of law as solely a national constitutional matter, he could justify actions by directly basing them on ECHR and EU law. For example, he could introduce a “Law to Restore the ECHR right to a fair trial and to Safeguard the integrity of the EU preliminary reference procedure”. This law could instruct judicial re-assessment, i.e. by a reformed KRS, of the judicial status of persons appointed by the neo-KRS since 2018 based on a binding, objective and external legal standard. The trigger moment would be when any individual appointed after 2018 might get involved in a case with potential Article 6 ECHR implications, or any case containing EU law aspects in which they could, or (if EU law so requires) should, ask preliminary questions. The terms of assessments would be those formulated in the Strasbourg and Luxembourg caselaw.

In practice, of course, this would apply in almost all cases. However, the justification and focus would not be on sub-groups of judges and their status in the national legal system, as in the current proposals. Rather, it would be based on the individual risk they pose for Article 6 ECHR rights, or for proper domestic judicial interpretation of EU law. Basing the law on this would also have the strategic advantage of re-confirming, in law, the parallel binding nature of EU and international law (which the captured Constitutional Tribunal has denied) and would put post-2018 KRS-appointed persons on the defensive rather than the offensive.

In short, this solution would embrace a comprehensive understanding of the law binding upon and applicable to Poland (including, crucially, EU law). It would use this framework to facilitate re-democratisation in a swift and strategic manner, enabling Polish democracy to Build Back Better in a way that restores the rule of law without breaking it.

This contribution is adapted from a talk given at the University of Cologne Academy for European Human Rights Protection online roundtable “The Way Back? Reversing Autocratisation through Legislative Reform in Poland”, 7 March 2024.