Poland : [country report]

European Papers, 2020

The present Insight compares the decisions of two chambers of the Polish Supreme Court regarding the domestic enforcement, under the terms laid down in the Polish Constitution, of a judgment of the Court of Justice, the independence of the judicial branch and the consequences of a judicial appointment. The starting point for the analysis is an overview of recent reforms of judiciary in Poland and the judgment of the Court of Justice in A.K. (Indépendance de la chambre disciplinaire de la Cour suprême) [GC] (judgement of 19 November 2019, joined cases C-585/18, C-624/18 and C-625/18). The first discussed ruling of the Supreme Court aimed to fully enforce that judgment of the Court of Justice, whereas the second sought to limit its actual impact.

Przegląd Prawa Konstytucyjnego 2020, 2020

The paper aims at analyzing the phenomenon of judicial activism in Poland against the background of a resolution of the formation of the combined Civil Chamber, Criminal Chamber and Labor Law and Social Security Chamber of the Supreme Court of 23 January 2020 (BSA I-4110-1/20). The author discusses the Supreme Court's powers to resolve divergences in the interpretation of law and then provides an analysis of the nature of the resolution of the Supreme Court. The considerations made in the context of the paper lead to the conclusion that in situations of a threat to the rule of law the courts not only have a right but also an obligation to take active measures to protect the common good.

Academia Letters, 2021

Following the victory in the presidential and parliamentary elections in 2015 right-wing PiS party has launched a large-scale controversial reform of the judicial system which brought significant changes concerning functions and compositions of the Constitutional Tribunal, the Supreme Court, and the National Council of Judiciary. Introduced changes call into question the independence of the Polish judiciary, both under national and EU law. The article summarizes the main reforms introduced by the ruling party and makes an attempt to answer the question of whether those changes mark only a temporary backslide or constitute a new reality of illiberal democracies within the European Union. The reform began with the Constitutional Tribunal when President Duda, despite the legal obligation to do so, refused to take oaths of new judges elected at the last sitting of the outgoing Sejm (the Lower Chamber of the Parliament). The new Sejm adopted resolutions invalidating the nominations of the previous legislature and elected new judges. Consequently, three judges were appointed for the vacancies already occupied by the judges elected in October. The above-mentioned controversies, together with further amendments on the functioning of the Tribunal, have been found unconstitutional by the Constitutional Tribunal. However, Prime Minister Szydło refused to publish Constitutional Tribunal's judgments in the Official Journal calling them the opinion of some judges. Thus, pursuant to Article 190 of the Constitution, the judgments have not come into force. The UNHRC Special Rapporteur stated that this constitutes a flagrant breach of the principles of judicial independence and the separation of powers[1]. Despite the constitutional obligation, on several occasions, Prime Minister arbitrarily decided on the publication of judgments. The adverse phenomena of peculiar "last instance" in the person of Prime Minister who decides when and whether at all a given judgment will come into force can be observed. The above constitutes a serious inference of the executive branch in judicial independence. Such interference happend once

www.democracy-reporting.org, 2020

Since 2015, a rule of law crisis has been intensifying in Poland. The ruling party has sought and partially succeeded to capture the most important judicial bodies through laws that contradict constitutional and European standards. The covid-19 pandemic has also had an impact on the rule of law, specifically in the unconstitutional decisions taken surrounding the presidential election originally planned for May 2020. These developments have been severely criticised both at the national and international level. While proceedings against Poland before the Court of Justice of the European Union are increasing, political procedures are stuck in political deadlock. Meanwhile, Polish society is deeply divided; while the attack on the judiciary has led to mass protests, the government still enjoys high public support. This report traces the development of rule of law backsliding in the country, explains the national and international responses and lays out possible ways ahead.

International Journal of Constitutional Law Blog, 2018

I-CONnect blog, 2019

Hague Journal on the Rule of Law

This article advances the thesis that disciplinary proceedings may constitute a tool for breaking the rule of law in Poland. In 2017, as part of a package of legal changes to the judiciary, a disciplinary system was created in Poland to ensure that judges were subservient to the political will of the authorities. From the beginning, new disciplinary officers appointed by the Minister of Justice (the Prosecutor General) have targeted judges who disagree with unconstitutional changes to the judiciary. Disciplinary proceedings are by no means repressions that affect judges who demand that other authorities respect the rule of law in Poland. The article discusses, on a step by step basis, the practical mechanisms taken by the political authorities to break the rule of law in Poland. Particular attention is paid to the measures which have been taken concerning the judiciary. The article discusses the judgment of the CJEU on 19 November 2019 in combined cases C-585/18, C-624/18, and C-625...

2017

With the latest draft laws about the judiciary, the Law and Justice party (PiS) has crossed yet another line. President Duda's announcement of a veto appears on first sight to present an obstacle to PiS' march towards completely unrestricted, unitary state power. In this post, I will examine first what effects the PiS drafts will have on the independence of the judiciary by the hands of PiS and then, whether or not President Duda's so-called veto holds what it seems to promise.

International Journal for Court Administration, 2020

This paper examines changes that occurred in the Polish lawmaking process associated with primary legislation (laws and amendments) affecting the court system. It uses the database of 126 laws adopted in the 1991-2019 timeframe (Ist to VIIIth term), that modified either (i) the law on common courts system or (ii) the law on the National Council of Judiciary -two legal acts constituting the backbone of the general jurisdiction courts system. A significant extension of our research is the coverage of RIAs and assessment of their quality. Analysis documents the transition from a rather consensual and deliberative law-making process to the partisan voting machine. That, in turn, enabled so-called 'reforms' of the Polish judiciary, implemented after 2015.

9 Polish Rev. Int'l & Eur. L. 39 (2020) , 2020

Judicial independence is a cornerstone of contemporary constitutional systems within European legal orders that Poland, among many other European States, codified the principle at a constitutional level through Article 173 of the Constitution of the Republic of Poland. Nonetheless, the concrete implementation of the theoretical framework remains a bone of contention between the national States and the main international actors. The latter faction, based on the acknowledgement that no single political model could ideally comply with the principle of the separation of powers and secure complete independence of the judiciary, has developed an impressive number of legal tools that are part of a more diffuse European trend of interpretation, which should be labelled as European standard or European corpus aiming at preserving the judiciary order from outward interferences by the legislative and executive powers. In Poland, after the extensive victory earned by the Law and Justice (PIS) party in the Parliamentary election of 2015, the executive branch propelled a series of interlock reforms with the aim of reshuffling the whole judicial asset of the country. In the first place, the way forward was marked by a compound diatribe concerning the Constitutional Tribunal, and the essence of the dispute concerned the mandate’s legitimacy of three sitting judges after the Court’s reinterpretation of the K 34/15 ruling that ended up on 2.12.2015 with the election of five new judges appointed ex novo by the ruling party. Afterwards, the attention shifted towards the rethinking of the National Council of Judiciary (KRS), a mixed judicial body guardian of the independence of the judiciary, asserting, firstly, the unconstitutionality of its statute and, subsequently, planning a new method of appointment for the judicial members previously elected by the judiciary itself. Ultimately, as a closing step, the spotlight turned in the direction of the Supreme Courts judges, where the most spectacular sweep was the provision aimed at lowering the retirement age for the sitting judges on a scheme similar to the proposal made by the Hungarian government in 2011, where voices were raised, respectively, by the Hungarian Constitutional Court, the European Court of Justice and the European Court of Human Rights, and where, regretfully, the judicial independence standard played a minor role in the Courts’ reasoning. This concluding phase convinced the Commission to launch an expedited procedure against Poland before the Court of Justice, thus forcing the Polish government to retracts previous law through the adoption of a repealing law on 17.12.2018; in any event, as predicted earlier by the Opinion delivered by the AG Tanchev in Case C-619/18, the ECJ epilogue released on 24.6.2019, dissimilar to the one reached in the Hungarian case, was the heaviest ‘contrariness to EU law’.