On 7 August 2021 the leader of the ruling Law and Justice Party Jarosław Kaczyński confirmed in a live interview that the Polish government will move to dissolve the Disciplinary Chamber in its current form. This decision was made against the backdrop of the recent judgment of the ECJ against Poland in C791-19 and the deadline set by the Commission of 16 August for Poland to address the continuing activity of the Chamber. This development while being a positive one is symbolic in nature and the rather than being a step towards the conclusion of the rule of law crisis in Poland, this is likely the end of the current chapter and the start of the next chapter in Poland’s democratic crisis.
The position of the Disciplinary Chamber within the Polish judicial order has been highly controversial and it has been the subject matter of some 38 proceedings before the ECtHR and ECJ. The Chamber was established within the Supreme Court under the New Law on the Supreme Court which came into effect on 3 April 2018. The Chamber enjoys an unusually high level of administrative independence and financial autonomy.(1) The procedure for appointments of judges to the Chamber is equally as unusually and deviated from the established norm of peer appointment common in many European states as appointments to the Chamber are made directly by the President of the Republic, on foot of a proposal from the KRS. In C-791/19, the ECJ ruled that the Chamber lacked the requirements of both independence and impartiality required under Article 19 TEU and that the composition of the Chamber failed to guarantee the existence of the rule of law in Poland.(2)
The judicial activity of the Chamber has also raised concerns both domestically and internationally. In Miasto Łowicz and Prokurator Generalny and Prokuratura Rejonowa w Słubicach disciplinary proceedings were brought against judges for the content of their judicial decision.(3 ) The Disciplinary Chamber has also suspended a judge on 14 February 2020 citing vague and unclear statutory provisions on the grounds that during the examination of an appeal the decision of the judge was one with no legal basis.4 Both of these examples demonstrate a chilling effect in the Polish judiciary and indicates PiS are willing to engage in mobbing tactics to silence dissenting judges.
The recent announcement by PiS regarding the dissolving of the Chamber is only a half-attempt to address the fundamental causes of the rule of law crisis in Poland. Reforming the Disciplinary Chamber is a cosmetic reform when the Krajowa Rada Sądownictwa (“KRS”) remains in its current form within Poland’s judicial order. Through the politicisation of the KRS and its functions the Polish judiciary is currently subject to the direct influence of the Polish executive and the independence of the judiciary is none existent. Until positive steps are taken to address the KRS in a meaningful way the rule of law in Poland is uncertain and Poland’s democratic future is at risk.
The KRS is Poland’s judicial council and it is tasked with guaranteeing the independence of the courts and plays a crucial role in relation to judicial appointments.(5) The move by PiS to reform the KRS in 2017 was met with public outcry and international criticism. Through the reform of the KRS all of the then sitting judges were purged and an entirely new panel was appointed directly by the Sejm. As of now 23 of the 25 sitting judges are political appointments. In A. K. and Others the ECJ ruled that the KRS does not constitute an impartial court independent from the executive and legislative. (6) In May 2020, the Polish Supreme Court weighed in on the KRS discussions and confirmed that the nature of the institution fails to satisfy the most basic requirements of independence required under Polish law.(7) PiS has already demonstrated that it is quite happy to ignore the decisions of the Polish courts when it suits them so it is unlikely that we will see any meaningful engagement with Supreme Court decision relating to the KRS.(8)
The functions of the judiciary and the role of judges in the guarding of democracy is currently being stifled by the influence of PiS being exerted through the KRS. Judges are not just adjudicators solving daily problems and providing remedies for injured parties. Judges play a role in the democratic order by acting as the procedural guarantors of the rule of law. Judges ensure that law is enforced day-to-day in an objectively equal manner and followed by all persons and powers within the state. Any activity that undermines the independence of the judiciary is an attack on democracy and a perversion of the rule of law into the rule by law. Under the rule by law the law is no more than a political instrument and justice cannot be done and there is no mechanism to prevent the executive and legislative from committing injustice.
The rule by law is a warped caricature of the rule of law that emphasis the substantive ideals of the rule of law such as certainty and legality but conveniently side steps the procedural ideals such as judicial independence. Without a sufficiently clear level of judicial independence the judicial cannot effectively counter the powers of the executive or executive and there is nothing to prevent arbitrary uses of power. Through the KRS in its current form the executive and legislative is free to pick and choose judicial appointments and more alarmingly, choose who will hold themselves accountable. The move to dissolve the Disciplinary Chamber is a step in the right direction but until the procedure for appointments to the KRS is addressed the rule of law in Poland is broken and the rule of law crisis in Poland will continue.
- "Ostatni aresztuje samego siebie" in English means "the last arrests himself"
- illustration by Marek Raczkowski
Footnotes:
1. C-791/19, Commission v Poland (Régimedisciplinaire des juges) at para 65
2. C-791/19, Commission v Poland (Régimedisciplinaire des juges) at 83 - 84
3. Miasto Łowicz and ProkuratorGeneralny (C‑558/18 and C‑563/18) and ProkuraturaRejonowa w Słubicach (C‑623/18).
4. C-791/19, Commission v Poland (Régimedisciplinaire des juges) at para 126
5. In Polish Krajowa Rada Sądownictwaand and in English NationalCouncil of the Judiciary
6. C-791/19, Commission v Poland (Régimedisciplinaire des juges) at para 66
7. Decision of the Polish Supreme Court, II GOK 2/18.
8. See President Duda won’t implement Constitutional Tribunal ruling | WBJ (archive.org) and Poland’s constitutional crisis goes international – POLITICO