The centre-left Polish Government led by Prime Minister Donald Tusk has announced plans to remove 430 judges and demote another 1,200 appointed during the lifetime of the previous Conservative (PiS) administration.
On April 11, the Ministry of Justice announced how the government proposed to deal with more than 2,500 judges appointed by the PiS aligned President Andrzej Duda on recommendation of the National Judicial Council (KRS).
The thousands of court verdicts they have handed down could be challenged if their nominations were declared invalid.
After being suspended, the KRS was reformed during the lifetime of the previous PiS government and most of its members were elected by parliament rather than judges. That was questioned by the European Commission and the European Court of Justice as, in their opinion, it did not ensure the judiciary remained independent of the government.
Under the Polish Constitution, the method of election used by the KRS was not specified and it made Duda responsible for appointing judges from candidates recommended by the body. It did not cater for any recall or removal of judges.
According to the Tusk government’s proposals, judges would be divided into three categories on the basis of how they were appointed.
The first category covered approximately 900 freshly appointed trainee judges who, in order to become judges, had no choice but to allow themselves to be nominated by the KRS.
According to the government’s proposals, these judges will have their appointments confirmed.
The second category was estimated to cover around 1,200 are judges who were promoted by the KRS. They would be demoted to their previous positions under Tusk’s plans but not for a further two years in order not to cause disruption to judicial proceedings.
The third category related to 430 judges who were appointed from other legal professions. They would be returned to those professions or could become junior court officials, meaning they would be removed from the position of being a judge.
According to deputy justice minister Dariusz Mazur, the new legislation draft was ready and would be submitted to the next elected president “immediately” on coming to office in early August after the general election in May.
Current President Duda was opposed to the Tusk government’s proposals and has already launched a bill on reforming the KRS to the Constitutional Court. The government does not recognise that court on the grounds that three of its 15 judges were elected, it says illegitimately, during the time of the PiS administration.
Mazur was asked by portal Money,pl whether the government envisaged some of the judges in the second and third categories would remain in place if they passed impartiality tests suggested by Poland’s Ombudsman Marcin Wiącek.
The deputy minister poured cold water on the idea, saying: “This would require individual verification of each person, which in our opinion is impossible to do, at least not within a reasonable time.”
“We cannot afford to destabilise the entire judiciary and give society the feeling that the judiciary is stewing in its own juices for many years instead of resolving cases,” he added.
Mazur claimed “there were countries where such methods were tried on an incomparably smaller scale and it did not work anywhere,” but did not provide any examples.
The justice ministry’s plans were prepared in response to an opinion issued last October by the Venice Commission, a body of experts in constitutional law that advises the Council of Europe. It recommended that the judges in question should not face ” wholesale blanket exclusion” and should be given “individual assessments”.
Mazur also revealed that, according to the government’s proposals, rulings issued by the judges appointed under the previous government would remain binding, with only a one-month window in which interested parties could file a request to reopen cases where there had been objections to the status of the adjudicating judges.
Given the European Commission has previously sanctioned Poland for rule-of -aw violations, on April 15, Brussels Signal asked the body whether it found the judicial proposals acceptable.
While it did contact Brussels Signal, it had not replied to the question by the time of writing.
