This post contains an excerpt from the report “A year of devastation of the rule of law”, published by the Ordo Iuris Institute on 13 December. The full report is available at https://en.ordoiuris.pl/civil-liberties/year-of-devastation-of-rule-of-law-in-poland

Main theses

• Minister of Justice Adam Bodnar has been pressuring the judiciary by attempting to dismiss the presidents and vice presidents of some of the courts, in violation of existing laws.
• The Constitutional Tribunal, in its ruling on October 16, 2024, said that the possibility of dismissing court presidents and vice presidents without the participation of the National Council of the Judiciary consti-tutes a violation of the constitutional guarantees of judicial independence.
• The Minister of Justice’s actions are a clear example of an infringement of the principle of separation of powers and can be considered as a form of political pressure aimed at ensuring that the judiciary is amenable to the government’s actions.

The Importance of Judicial Independence

The basic building block of a democratic state based on law is judicial independence, which is not a power that a judge has, but is rather his fundamental duty . This principle constitutes a fundamental attribute of the state’s judicial system. On the other hand, the lack of such independence results in a sham, a mere fa-cade of handling disputes impartially and objectively, and above all fairly. There is no doubt that turning this principle into a reality is governed by the guarantees set forth in the Constitution: Article 178(1) explicitly states that judges, in the exercise of their office, are independent and subject only to the Constitution and the law. In turn, Article 179 stipulates that judges are appointed by the President of the Republic of Poland based on a recommendation by the National Council of the Judiciary (hereinafter: NCJ) for a period lasting for an indefinite time. Finally, Article 180 stipulates that judges are, as a general rule, irremovable and can only be dismissed, suspended from office, or transferred to another courthouse or another position against their will only by court order and only in cases specified by law.
Those elements which make up judicial independence can be summarized as follows, according to the case law of the Constitutional Tribunal:
– impartiality with regard to the participants in the proceedings;
– independence from non-judicial bodies (i.e. institutions);
– the judge’s autonomy from the political authorities and other judicial bodies;
– independence from the influence of political factors, especially political parties; and
– the judge’s personal independence .
There is no doubt that judicial independence should also be considered from the perspective of the judge’s relationship with other entities, including public authorities. As pointed out in the doctrine itself, “The independence of a judge means, first of all, his freedom from external influence – from the influence of representatives of the executive and legislative branches – but also from the judiciary and all outsiders, including politicians and journalists. Independence in relation to such parties is usually referred to as impartiality. Independence is an extremely important factor, without which there can be no talk of judges or even of an independent court at all. (…) The independence of the judge (…) is a subjective public right of the citizen. It is the citizen who has the right to an independent court and an independent judge. The independence of judges is thus the very foundation of a democratic state based on law. Without this independence, the judicial branch would be deprived of an essential attribute for carrying out the task entrusted to it, which is the administration of justice. Judges would become mere officials who are beholden to the recommendations and instructions of their superiors, and the fundamental rights of citizens would therefore be left unprotected.” The Constitutional Tribunal further pointed out that the impermissibility of any outside interference or coercion ensures “the neutrality of the judge and guarantees objective proceedings before the court on the basis of the Constitution and the law.”

Attempts to remove presidents of certain courts from office

A clear example of those actions of the Minister of Justice which are aimed at violating the principle of judi-cial independence are the attempts to remove court presidents from their positions, which are being car-ried out in violation of the proper procedures. Since the entry into force of the law of July 12, 2017 that amends the Law on the System of Common Courts as well as certain other legislation, court presidents no longer determine the rules by which cases are assigned to individual judges, as this is done randomly, in accordance with Article 47a of the law of July 27, 2001. This law, which governs the common courts , is still a very important one from the point of view of the courts’ daily operations.

According to articles 22 and 21 of the Law on the System of Common Courts, the president of the court, among other things, is the head of it and represents it externally, and also ensures its proper functioning; acts as the official superior of the judges, court assessors, court reporters, and assistant judges of a given court; and entrusts the judges, court assessors, and court reporters with performing their functions and can dismiss them. Additionally, following consultation with the court’s college of judges, court presidents de-termine the assignment of judges, court assessors, and court reporters to the court’s various divisions; as well as the scope of their duties, the manner of their participation in the assignment of cases, and the schedule of their on-call duties and substitutions.

Court of Appeals in Warsaw

On January 18, 2024, Minister of Justice Adam Bodnar requested, pursuant to Article 27 of the Law on the Organization of Common Courts, the college of judges of the Court of Appeals in Warsaw to dismiss Judge Piotr Schab from his position as president of that court . At the same time, acting in accordance with § 3. of this provision, the Minister suspended the president from performing his duties. According to Article 27, the Minister can remove a court’s president or vice-president if the college of judges gives a positive opinion concerning his decision or if it does not offer an opinion within 30 days. However, should the college of judges offer a negative opinion, then the Minister of Justice must appeal to the Na-tional Council of the Judiciary, addressing a request for dismissal to it along with a written rationale.

Although the Minister justified his decision by alleging that the president had grossly and persistently failed to perform his duties, and further that he had been unable to reconcile his continuing in the position with the good of the judiciary, it appears that his actual motives were political in nature .

On the very day of the announcement of his request to remove Judge Piotr Schab from his position, the court’s college of judges unanimously expressed a negative opinion concerning this decision . In spite of this, the Minister did not refer his request to the National Council of the Judiciary, but rather took the po-sition that the college of judges of the Court of Appeals in Warsaw had failed to provide a negative opinion in response to the Minister’s expressed intention to dismiss, as solely information concerning the result of the college of judges’ vote had been submitted to the Ministry – which, according to the same Ministry, cannot be considered an opinion on the dismissal . In view of the above, after 30 days had passed the Minister dismissed the president and shortly thereafter appointed a new individual to the position . It should be noted here, however, that the provisions of the Law on the System of Common Courts do not in any way specify what form an opinion on a motion to dismiss the court president should take.

Accordingly, on February 16, 2024 the Presidium of the National Council of the Judiciary adopted a resolu-tion to examine the constitutionality of Article 27 § 5 of the Law on the System of Common Courts, to the extent that it authorizes the Minister of Justice to dismiss the president or vice president of a court without an opinion from the NCJ; as well as the second sentence of Article 27 § 5a, to the extent that it limits the binding nature of the negative opinion of the NCJ for the Minister of Justice when it is issued regarding an intention to dismiss the president or vice president of a court only to those resolutions which are adopted by a two-thirds majority.

Constitutional Tribunal ruling of October 16, 2024, case K 2/24

The judgment in the above case was handed down on October 16, 2024. The Court ruled that the provi-sions in question in the Law on the System of Common Courts are unconstitutional insofar as they deprive the National Council of the Judiciary from participating in the procedure for suspending the president or vice president of a court; do not specify the duration of the suspension; limit the binding nature for the Minister of Justice of the National Council of the Judiciary’s negative opinion, when it is issued with the intention of dismissing the president or vice president of a court, to resolutions adopted only by a two-thirds majority; and provide that the failure of the National Council of the Judiciary to issue an opinion with-in 30 days from the date when the Minister of Justice presents his intention of dismissing the president or vice president of a court does not preclude the dismissal. . While the written justifications for the judg-ment was not available at the time of issue of this report, a communiqué posted on the Court’s website summarized its motives . The Constitutional Tribunal took the position that the dismissal of court presi-dents is not a purely administrative action, but rather constitutes a form of interference in judicial inde-pendence as guaranteed by the Constitution, and as such can only be carried out with the participation of the NCJ, a body whose primary constitutional duty (as set forth in Article 186(1) of the Constitution) is to uphold this principle. The Court also found that the requirement of a two-thirds majority vote, as well as the 30-day time limit for expressing an opinion – which would determine whether the NCJ’s negative opin-ion regarding the dismissal of a court president is binding on the Minister of Justice – are too far-reaching and may prevent the NCJ from performing its constitutional tasks.

Poznań Court of Appeal

Minister Bodnar also made other attempts to dismiss court presidents whose legality raised serious ques-tions. On January 15, 2024 the Minister requested the college of judges of the Court of Appeals in Poznań to express an opinion regarding the dismissal of this court’s president, Judge Mateusz Bartoszek, as well as its vice presidents, judges Przemysław Radzik and Sylwia Dembska, from their positions. According to the position which was taken on January 17 by the Presidium of the NCJ , the positive opin-ion of the court’s college of judges in this regard was given in a faulty manner; specifically, the vote was attended by a judge who had in fact been appointed by the Minister in connection with the suspension of the current president in order to carry out his functions. According to the NCJ’s position, the provisions of the Law on the System of Common Courts do not provide the authority for such a person to take part in the work of the court’s college of judges. According to the NCJ, the college of judges should therefore have been considered to have offered a negative opinion in the absence of this vote. The NCJ’s appeal to reconvene the college of judges in its correct composition was not heard, however, and on January 19 the Ministry issued an announcement regarding the “final dismissal” of the president and vice presidents as of January 18, 2024.

Radom Regional Court

On January 19, 2024 the Presidium of the National Council of the Judiciary took a position on the proce-dure for the dismissal of Judge Stanislaw Olchowy from his post as President of the Radom Regional Court. Stanislaw Olchowy had been appointed via a decision dated October 30, 2023 to perform his du-ties starting on December 19, 2023. Subsequently, however, on December 29, 2023, he was served with a decision from the Minister of Justice dated December 15, 2023, which revoked his appointment. The Presidium of the NCJ, in a resolution dated January 19, 2024 , took the position that the Minister’s decision had no legal basis, citing general principles of public law. It was pointed out that such an act, as a statement of the executive branch’s intentions, has an impact in the spheres of both constitutional law as well as individual rights and obligations only from the moment it is introduced into legal circulation, i.e. at the moment it is passed. If the act is not properly served, it should be considered non-existent, which is a conclusion the Presidium of the NCJ drew by citing extensive case law from the Supreme Administrative Court . This resolution further stressed that from the moment of taking office, dismissal can only be carried out through the procedure discussed above, as described in Article 27 of the Law on the System of Common Courts. The attempt to circumvent this procedure finds no legal basis and thus contradicts the principle of legalism, as contained in Article 7 of the Constitution and addressed in particular to the organs of the executive branch, ie. to the government in the first place. Accordingly, the Presidium of the NCJ urged the Minister of Justice to rescind the act of dismissal dated December 15, 2023, and stated that if his intention is to dismiss the president, he must follow the correct procedure. This appeal likewise went unheeded.

Warsaw Regional Court

Another such action by the Justice Ministry was a request made on June 18, 2024 for the college of judges of the Warsaw Regional Court to issue an opinion on the dismissal of the president and vice presidents of the court . The motion was accompanied by the suspension of the president and vice presidents from office, but more than that, at the same time the Justice Minister initiated the procedure to suspend the presidents and vice presidents of six of the eight Warsaw district courts, who are all members of the Re-gional Court’s college of judges. This was obviously intended to prevent the Regional Court’s college of judges from issuing a negative opinion. Since the Minister had set June 19 as the suspension date, howev-er, the Warsaw Regional Court’s college of judges met on the day of the application (June 18) and issued a negative opinion.

In view of the above, Minister Adam Bodnar again on July 1 attempted to dismiss the presidents of the Warsaw Regional Court and the Warsaw District Courts, this time suspending them with immediate effect. After the modified college of judges issued a favorable opinion in relation to the Justice Minister’s request, the Regional Court’s president and all its vice presidents but one were dismissed effective July 16. . In response, the Presidium of the NCJ reiterated its position, pointing to the likely political context of the Minister’s actions.

Summary

Although constitutional guarantees of the irremovable status of judges prevent Minister Bodnar from revoking those judi-cial appointments which were made in recent years (even though attempts to circumvent these guarantees have also been announced and carried out ) – at least for the time being – the Justice Minister has nevertheless been trying to gain sig-nificant influence over the judiciary in other ways. Attempts to remove court presidents and vice presidents from their positions, as described above, can be considered an act which serves this purpose.

In light of the Constitutional Tribunal’s ruling of October 16, 2024, these attempts should be unequivocally assessed as flawed and in violation of constitutional guarantees of judicial independence. The position of a court’s president entails significant influence over the court’s activities, hence the requirement of inde-pendence as stipulated by the Constitution also applies to it. The actions of the Minister of Justice consti-tute a clear example of a violation of the principle of separation of powers and can be considered as a form of political pressure aimed at ensuring that the judiciary is amenable to the government’s actions. The con-sequences of such a state of affairs should be of the utmost concern, especially in the context of the gov-ernment’s announced efforts to violate the very foundations of the Polish constitutional order, at least when it comes to such fundamental issues as the protection of life and the definition of marriage.