Poland has ended the practice of the random assignment of judges to cases, returning to a situation where the majority will be chosen by chairmen of common courts whom the justice ministry selects.
The justice minister has published an ordinance outlining the move.
On September 30, Waldemar Żurek, the justice minister, decided that the chairmen of courts will have the discretionary power to select two out of three judges presiding over individual cases to “increase the effectiveness of the work of the judiciary”.
The system of assigning cases on a random basis was introduced by the former Conservative (PiS) government in 2018. It consisted of a computer programme that allotted cases to judges in a transparent manner. It was seen as an antidote to the power of the chairmen of the common courts and, through them, influence on cases from the ministry of justice, which has the power to appoint them.
Żurek has been using that power to dismiss and appoint chairmen of the common courts as recently as September 15 when he discharged 25 such chairmen and replaced them with his own appointees, despite protests from the courts involved.
According to the Association of Polish Judges, a lobby group composed of allies of the former PiS government, the ruling by the justice minister is evidence of “the destruction of judicial independence”.
“As a result of this ruling by the ministry in each case the majority of judges will be allies of the chairman of the court who has been appointed by the minister. Court rulings will no longer be a surprise for the government,” reads a statement published by the association.
Former justice minister Zbigniew Ziobro criticised the move on X saying: “Tusk with his justice minister are depriving Poles of random assignment of judges to cases.
“Żurek has been totally open about needing to have ‘trusted’ people around him so that he can decide what verdicts are reached. People on the government benches can sit easily, it’s the opposition that is to go to jail.”
Żurek, who took over as minister in August, has brought with him a tougher line on purging the judiciary of PiS influence.
He has said he does not regard judges appointed during the reign of the previous PiS-aligned president Andrzej Duda as being legitimate and has pledged to see them removed or downgraded. He wants the body that recommends their appointment, the National Judicial Council (KRS), disbanded and then reappointed so that it is elected by judges rather than parliament.
Zurek cites decisions taken by the European Court of Justice (ECJ) and the European Commission’s sanctioning of Poland over abuses of the rule of law as justification for his tough line.
However, the Venice Commission, the advisory body to the Council of Europe, has criticised the government’s wholesale attempts at purges as going too far.
With the installation of the current administration under Prime Minister Donald Tusk in 2023, the EC has lifted all sanctioning of Poland’s post-pandemic and structural funds, citing the new government’s willingness to tackle the rule of law problems the EC and ECJ identified.
Thus far, though, no legislation has been approved to reform the system . The government did not, in its submissions to the EC, specifically detail either the ending of the random appointment of judges to cases or the notion of purging all judges appointed under the previous government.
According to Poland’s Constitution, it is the president who appoints judges on recommendation of the National Court Register (KRS). It does not give the body explicit authority to question the president’s power of appointing judges.
Poland has three top courts: The constitutional court (TK) responsible for ruling on the constitutionality of legislation and elected by parliament, the Supreme Court (SN), which acts as the top court with regard to civil, criminal, family and labour law and the Supreme Administrative Court (NSA), which settles disputes in cases of administrative law.
In addition there exists a Tribunal of State (TS), a judicial body elected by parliament to rule in cases in which State officials are accused of breaching the Constitution.
The present government does not recognise either the TK or most of the judges in the SN because they were appointed or elected during the time of the previous government.
With regard to the common courts, although judges are appointed by the president, it is the government that takes the decision on whom it appoints to chair each of those lower courts.
In the court of public opinion, the wrangling over and within the judiciary is undermining trust in the system: An opinion poll published on September 20 by the daily Rzeczpospolita revealed 57 per cent of Poles distrust their country’s courts, the highest level ever recorded and up from 41 per cent when PiS left office in 2023.
