The Winding Road To The Mountaintop

We have learned very well how to violate the rule of law. We can identify the weak links of checks and balances and how to effectively eliminate them from functioning. The art of making institutions dependent on political will has been mastered to perfection, and we see that politicians from different countries can scale this knowledge – with only minor modifications.

We are much more reluctant to learn how to restore the rule of law. We begin with the fact that destroying it only takes a few steps. However, the process of restoring it is best captured by the allegory of Sisyphean labor. Somewhere high in the clouds is the peak and at the same time the end of the road back to democracy. But we cannot see clearly how it is exactly shaped. The roads leading to it are winding and intermixed, with protruding roots and stones often forcing us to start the journey again from the bottom of the mountain. Only a few coffee-drenched sheets of paper remain from the guidebook containing full route descriptions.

A recipe for the basics of rule of law

From their content emerges the Rule of Law in Poland Action Plan. It might have been a good starting point for developing the concept of restoring the rule of law. However, it remains unsatisfying that, after so many years of discussing the collapse of the rule of law, more elaborate ideas for its restoration were not put on the table. The timeline for implementing these measures could have been extended further, especially given the likelihood that President Andrzej Duda doing everything possible, until the end of his term in mid-2025, to obstruct their enactment.

The document, drafted by the Polish Ministry of Justice, was submitted to the European Commission in mid-February of this year. As a side note, it is worth mentioning that it was not publicly shared in Poland before it was submitted, and was the subject of conjecture rather than honest discussion for several weeks. However, due to its very general nature, it did not contain extraordinarily innovative or revealing prescriptions. It is also difficult to say that it defined the pinnacle of this journey. Referring to the allegory of climbing, it rather delineated the last base before the final ascent. Nor did it include instructions on how to reach it safely and quickly. Maybe it is simply not possible, or the author knew that navigating the route has to be programmed on the fly, given the unpredictability of all the obstacles.

At the same time, the Action Plan allows for convenient monitoring of what the government has announced and accomplished over almost a year since it was sworn in. The document outlines six areas deemed critical to achieving the rule of law in Poland: changes to the National Council of the Judiciary (NCJ); the Constitutional Tribunal; the Supreme Court; the Common Courts; the Public Prosecutor’s Office; and how the Polish government approaches cases pending before the CJEU and ECtHR.

A glass half full but you can’t drink

At the time the plan was presented to the Commission, the government was working on changes to the National Judicial Council. These were aimed at restoring the principles of its operation before December 2017 – including reducing the influence of politicians on the selection of the judicial part of the Council. The previous government had decided that deputies would elect them. Meanwhile, Article 187 of the Polish Constitution saying that the judicial members of the Council are chosen from among the judges should be interpreted in such a way that this process should be conducted exclusively by judicial bodies, without political interference. The Polish government informed the Commission that “the draft law introduces the rule that the judicial members of the NCJ will be elected by peers (other judges) in universal and secret voting, without any influence of politicians. ”

Indeed, such solutions were finally adopted by Parliament in July of this year. However, along the way, the suggestions of the Venice Commission were disregarded. The Commission had recommended that so-called “neo-judges,” i.e. people whose candidacies for judges, or their promotion, were considered by the Council established by the 2017 legislation, could not be excluded in gremio from eligibility for NCJ membership. This law, however, did not go into effect, as President Andrzej Duda exercised his veto power.

Accused investigates if guilty

Another commitment was to clean up the situation at the Constitutional Tribunal where the controversial election of three individuals to already occupied judicial positions has been a lingering issue since 2015. The authorities fulfilled the Action Plan’s commitment to adopt a resolution in the Sejm (the lower house of the Polish parliament) on the status of the Constitutional Tribunal. This occurred in early March and stipulated that the government and other institutions should not recognize the Tribunal’s rulings made by unauthorized persons. It also pointed out that the President of the Court – Julia Przyłębska – had not been correctly elected, and thus her actions – including the appointment of formations – should be ignored.

Since then, the authorities have consistently ignored the Tribunal’s actions, including not publishing its verdicts. While the diagnosis of the malfunctioning of the Tribunal is accurate and supported by the rulings of European courts (including the famous Xero Flor), the Seim’s resolution to disregard the constitutional obligation to publish (and consequently recognize) the Tribunal’s judgments may raise doubts.

Parliament also fulfilled its commitment by passing laws concerning the Constitutional Tribunal. I described their contents quite extensively on Verfassungsblog a year ago, as the drafts were already prepared in 2022 by Stefan Batory Foundation’s Legal Expert Team. However, Andrzej Duda referred both drafts to the Constitutional Tribunal – the very body these provisions were meant to reform extensively. The hearing set for November 20, has been moved to December 9, and as everybody assumed it was not held then either. In the meantime, several judges of the Tribunal, including Julia Przyłębska herself, have completed their terms. The ruling majority has decided not to nominate candidates and to drastically reduce the Tribunal’s budget for the coming year. Thus, the rule of law has been restored to a small degree. The paradox is that thanks to this, the Tribunal is not facing a deepening crisis because its rulings do not enter into legal circulation, thereby preventing any additional complications. Still, at the same time citizens have not regained the mechanism for defending their rights, and the parliament’s work remains unconstrained by the genuine threat of constitutional challenges.

Splitting prosecutor’s hair

In terms of restoring the rule of law in the prosecutor’s office, Poland’s accession to the European Public Prosecutor’s Office (EPPO) should be greatly appreciated. While this may not be directly related to the narrow concept of the rule of law, it can decisively improve the control of abuses in the disbursement of EU budget funds. This was also a critical factor in the decision to unblock Recovery and Resiliency Facility (RRF) disbursements and suspend Article 7 proceedings under the Treaty on the European Union. Work has also begun on separating the functions of the Minister of Justice and the Prosecutor General. This is an important, albeit symbolic, gesture. Law and Justice’s government has strengthened the position – its independence and competence – of the State Prosecutor, whose dismissal requires the participation of the President. The Minister of Justice found a way to circumvent it and dismiss a State Prosecutor, with close ties to the former power camp, but still, the legality of these changes remains under debate.

The most important missing travel items

There are no formal and detailed proposals on the status of the neo-judges and the regulation of the rulings they have issued over the past six years. As Przemyslaw Rosati, President of the Supreme Bar Council, points out in a recent letter to the Polish government on the need to implement the Walesa v. Poland ruling, “the number of complaints brought to the Court by Polish plaintiffs against the background of this crisis, in particular concerning violations of the right to have a case heard by an impartial and independent court established by law under Article 6(1) of the Convention, is growing exponentially and currently stands at around 700.” However, the full scale of the problem is more pervasive. Although there is no exact calculation, it is safe to assume that there are already hundreds of thousands of verdicts issued by neo-judges.

The situation is not so simple and its solution requires more of the artistry of a precise surgeon than that of a legal theorist. It is necessary to balance the need to implement the verdicts of the European courts with minimizing potential consequences for all subjects who rightly expect that the state should avoid solutions that could undermine the stability of the verdicts and public trust in the judiciary. Even if the same state has previously failed and introduced a politicized procedure for selecting judges. The Supreme Court, some of whose chambers (including the confirmed defectiveness of the Extraordinary Control and Public Affairs Chamber in the cited Walesa v. Poland case) cannot enjoy the attribute of an independent court as well.

The Polish government has recently been given more time to make changes in this area – the ECtHR has extended the deadline for implementing its rulings in this area until November 2025. Given the current polls, by that time, a new President aligned with the current government will likely have been elected. This increases the chance that he will interact with the government and support the directions proposed by the Minister of Justice.

Expedition participants’ feedback

However, I must make two important caveats. First, I believe that given the momentousness and urgency of the need to regulate the status of neo-judges, a major shortcoming remains the lack of concrete proposals. At present, only a general outline of the proposed changes is available, which was later criticized by the Venice Commission. The second issue concerns the general review of Poland’s democracy. I am well aware of realpolitik and that in polar-tribal democracy tensions between politicians coming from different political backgrounds are often destructive. On the other hand, however, there is something far more disturbing about the fact that to carry out reforms aimed at restoring the rule of law, all the institutions (in the Polish case, at least the government, parliament and president) must be in the hands of one party.

The government is doing (almost) everything it can to fulfill the commitments made in the Action Plan. What is important is the shift in the narrative regarding the courts and judges, which is markedly different from the combative one orchestrated by the previous authorities. Finally, the diagnosis of the direction of change and the commitment to move in that direction is apt. At the same time, it is fully justified to say that in the layer of real change, basically nothing has been achieved. If – in the event of early elections – Jaroslaw Kaczynski were to return to power, he would have the same legal mechanisms at his disposal that he left behind on the day he lost the elections.