EVER SINCE the populist Law and Justice (PiS) party took power in 2015, Adam Bodnar, Poland’s human-rights ombudsman, has been warning against its relentless efforts to get control of the courts. To illustrate the danger, he uses an expression from communist times: lex telefonica. In the Polish People’s Republic, verdicts were routinely dictated by a phone call from an apparatchik at party headquarters. Today’s government has more subtle techniques, but the goal is the same, Mr Bodnar says: “If a judge has a case on his desk with some political importance, he should be afraid.”
The European Commission is worried, too. It accuses PiS of violating Poland’s commitments to the rule of law under the European Union’s founding treaty. In 2017 the commission took Poland to the European Court of Justice (ECJ) over laws that gave politicians control over appointing judges. (For example, they lowered judges’ retirement age while letting the justice minister pick whom to exempt.) The ECJ ruled against the Poles, who had in the meantime scrapped some of the measures.
Now another ruling by the ECJ threatens to force Poland into an open break with the EU. Last year PiS passed a law creating a disciplinary chamber for the country’s Supreme Court, which has stubbornly resisted government control. The chamber could suspend judges, and its members would be appointed by Poland’s president—a former member of PiS—along with the National Judiciary Council, the official jurists’ association. (This is now controlled by parliament, where PiS has a majority.) The Supreme Court queried the law in the ECJ, which laid out criteria for whether the system violated judicial independence. On December 5th the Supreme Court, applying those criteria, ruled that it does.
The government threw a fit. On December 20th it pushed a law through parliament’s lower house that directs the disciplinary chamber to punish judges who apply the ECJ’s ruling. On January 11th Iustitia, an independent jurists’ association, led a protest march in Warsaw of hundreds of toga-wearing judges from Poland and abroad, including Malgorzata Gersdorf, the Supreme Court’s president. The group calls the new law “unheard of and unimaginable in the circle of civilised states”.
The government says it is being treated unfairly. Under EU treaties, says Andrzej Duda, the president, “Poland has the right to regulate its internal legal order.” The opposite is closer to the truth. The treaties oblige national courts to apply EU law and obey the ECJ. European officials and experts in EU law warn that if one country’s courts are politicised, others may stop accepting their rulings.
That would threaten the legal sinews that hold the union together. Poland is not the only country facing concerns over the rule of law. PiS copied many ideas from Hungary’s ruling Fidesz party. Rule-of-law concerns have been raised in Bulgaria, Malta, Romania and elsewhere. While Poles worry about judicial independence, the EU worries about a threat to its architecture.
In a white paper in 2018, the government offered three justifications for its reforms. One was that the courts had never been properly de-communised. Three decades after the transition, this seems dubious. The average judge is far too young to have served under the communist regime. The government undermined its own case in November by appointing to the constitutional court an elderly PiS lawmaker who had served as a notorious prosecutor for the old dictatorship.
Quit judging me
Another argument is that cases take too long. The government cites a survey in 2017 showing Poland ranked 24th of 35 developed countries for public satisfaction with the judiciary. Backlogs are indeed long, but judges say the reforms will not shorten them. They have not added support staff or simplified procedures much.
A third claim is that the EU is biased against eastern European countries, since western ones also give governments some say in the judiciary. For example, in Germany, as in Poland, the president of the constitutional tribunal is picked by the government, and cases are heard by smaller panels of judges. But in Poland the court’s president gets to select the panels, and can choose loyal PiS justices.
This pattern of taking bits of other democracies and combining them into something authoritarian was pioneered in Hungary. (Kim Lane Scheppele, a political scientist, terms it the “Frankenstate” approach.) Such complex manoeuvres may fool lay people, but not the experts. “If you have some knowledge of the systems in Europe it’s quite obvious what is going on,” says Kees Sterk, president of the European Network of Councils for the Judiciary. His group suspended Poland’s National Judicial Council in 2018.
“Judges are starting to get disciplinary pressures because of our rulings,” says Tomasz Trebicki, who serves on a Warsaw city court. Those who cross the government are hassled over bureaucratic mistakes or reassigned to different courts. After the ECJ ruled last summer that Poland’s system was politically tainted, several judges asked it whether this meant that colleagues appointed under the new rules were illegitimate under European law. They all faced disciplinary procedures. The government’s new bill would bar such queries.
That bill will probably be rejected by the Senate, where PiS lacks a majority since last autumn’s elections. But it can only send the bill back to the lower house for amendment, not block it. A report by the Venice Commission of the Council of Europe, a legal watchdog, denounces the bill as a blatant violation of judicial independence. (Poland’s justice minister called the report a “parody”.) Meanwhile, the European Commission is taking more drastic steps. On January 14th it asked the ECJ to order Poland to suspend the Supreme Court’s disciplinary chamber, effective immediately.
Ms Gersdorf, the independent-minded Supreme Court president, must retire in April, and PiS will appoint her successor. Last month the court issued a warning that defying the ECJ could eventually force the country out of the EU. “You can’t be a member of the European Union if you don’t have independent, impartial courts,” Koen Lenaerts, the ECJ’s chief justice, agreed on a visit to Warsaw. Most analysts see a less apocalyptic scenario where Polish courts are ignored by other EU countries, sowing chaos in everything from business disputes to cross-border divorces. For Poland, that would be bad. For the EU, a union made of laws, it would be grave. ■
This article appeared in the Europe section of the print edition under the headline “Law and Justice v law and justice”