The Polish Ombudsman, Marcin Wiącek, has criticised the “rule of law” bill proposed by the coalition government because it is based on a “false premise”.
That “false premise” was, Wiącek stated, that judges appointed during the lifetime of the last Conservative (PiS) government are no longer judges because of the way they were appointed.
In October, Prime Minister Donald Tusk’s justice minister Waldemar Żurek presented the draft of what he called the “rule of law act”. It was intended to reform the judiciary and deal with what the government sees as the problem of illegitimate judges, which it calls “neo-judges”.
The main objective of the rule of law bill is to re-run judicial appointment procedures for all positions filled through the National Council of the Judiciary (KRS) since March 2018. In addition, it is intended and to “regularise” the status of judges allegedly appointed “illegally” between 2018 and 2025.
The key provision of the draft would relegate around 1,200 judges to their previous official posts and require them to re-apply for the positions they currently hold.
The government’s proposal has sparked strong protests in Polish legal circles. The Venice Commission, an advisory body of the Council of Europe, has also expressed doubts about moves proposed by the justice ministry.
The Ombudsman’s analysis of Żurek’s rule of law bill, published on October 31, maintains that the draft relies on the mistaken assumption that individuals appointed as judges in the lifetime of the previous PiS administration are not judges within the meaning of law or the Constitution.
Wiącek emphasised that the claim finds no support in case law of the European Court of Human Rights (ECHR) the European Court of Justice (ECJ), or in the rulings of Polish courts, including the Supreme Court (SN).
According to the Polish Constitution, although the KRS makes recommendations on judicial appointments, they are actually made by the President whose decision is final.
However, Tusk’s government has so far received backing from the European Commission for his plans to “return to the rule of law”. Within days of his returning to power in 2023 it unblocked Poland’s post-pandemic and structural funds that had been frozen during the time of the last PiS government as a result of alleged violations of the rule of law and independence of judges.
While Wiącek agreed that the status of judges appointed after that date indeed requires clarification and regulation, he stressed that such a process must take place within constitutional and international standards.
The Ombudsman also pointed to the draft’s internal inconsistency: On the one hand, it treats the KRS as a “non-existent” body and invalidates its resolutions; on the other, it acknowledges its capacity to issue binding decisions elsewhere in the draft.
According to Wiącek, the cancelling of KRS resolutions and the automatic dismissal or transfer of around 1,500 judges, without proper judicial proceedings and alongside the public disclosure of their personal data, would violate the principle of proportionality, the rule of law, the irremovability of judges and the right to a fair trial.
He warned that such measures would prompt affected judges to seek protection from the ECHR, and there is a high probability that it would find the process violated the Convention.
As a result, implementing the bill could deepen Poland’s judicial crisis and trigger new disputes over the status of Polish judges, argued Wiącek.
Additionally, he said the proposed special procedure allowing for the automatic annulment of certain rulings issued with the participation of post-2018 judges, even when such rulings were substantively correct, undermines the principle of legal certainty and the stability of legal relations.
Since the judges appointed under the PiS government account for close to 30 per cent of all active judges, there will be implications for the workload of courts and the time it takes to make judicial decisions.
The PiS-aligned President Karol Nawrocki has already hinted that he will not sign the government’s bill into law. In that case, since the ruling coalition lacks the required three-fifths majority to overturn any veto, the draft is unlikely to make it into law.
Zurek has, though, signalled he will ensure the so-called “neo-judges” are not on the bench in court cases.
The Tusk government is reportedly considering using parliament to dismiss the current KRS members and elect a new membership on recommendations of senior judges who support the government.
