A Polish judge has ruled that a couple’s divorce was invalid because it had been granted by a judge who had been appointed during the lifetime of the previous Conservative (PiS) government.
The fate of a raft of divorce decrees is now up in the air as the current centre-left government led by Prime Minister Donald Tusk has queried the legitimacy of close to 3,000 judicial appointments, citing European Court of Justice (ECJ) rulings against the previous Polish government’s judicial reforms.
The dispute has hit the headlines with courts ruling that some criminal cases have to be heard again due to uncertainty over the validity of judges presiding over them.
The issue has now involved the family courts. In Giżycko, northeastern Poland, a judge rejected an application for the division of property following a divorce decree. It was ruled that the divorce was invalid because the judge who had granted it had been appointed during the PiS reforms.
Commenting on the case in Giżycko, justice minister Waldemar Żurek said yesterday that it had brought home the need for urgent reform of the judicial system system.
“The case in which a divorce judgement was deemed non-existent … reveals something deeply disturbing. The crisis surrounding ‘neo-judges’ [judges whose status is questioned] is now infiltrating the most sensitive areas of citizens’ lives – family matters, property issues and the fundamental sense of legal security,” Żurek wrote on X.
According to the minister, the situation has “generated chaos in the courts, and led to situations where people do not know whether their judgments actually exist”.
His PiS predecessor Zbigniew Ziobro blamed the present government for “chaos and anarchy” as it had questioned judicial appointments.
Ziobro was recently granted asylum by Hungary on the grounds that he would not face a fair trial for allegations of abuse of power during the PiS government’s reign. He also pointed to the fact that government ministers did not question rulings by the so-called “neo-judges” when those rulings suited them.
According to Polish media, the Giżycko case is the tip of the iceberg with many divorces granted by neo-judges being considered null and void by courts. That means individuals not aware of the fact their marital status is under question who enter into fresh marriages could soon be accused of bigamy.
“Unfortunately, some judges do not understand that they are acting clearly to the detriment of how the judiciary and their own professional community are perceived,” attorney Bartosz Lewandowski said on X.
Robert Mazurek, a leading political commentator for the popular independent You tube channel Kanał Zero, said the way members of the judiciary were behaving was unacceptable.
“Judges have become so politicised they are taking members of the public hostage in their fight against judges who were promoted under PiS,” he said.
“This is an outrage, we have members of the public who do not know their marital status and we have victims of crimes facing having to go through the trauma of being witnesses at retrials so that someone can prove a political point.”
Other commentators observed wryly that it was odd that while the Polish Government had recently decided to implement the ECJ ruling on recognition of same-sex marriages in other European Union member states, despite them being not legal in Poland, the same government is effectively encouraging Polish judges to invalidate traditional marriages at home in pursuit of its own judicial reform agenda.
The last PiS government had changed the way the National Council of the Judiciary (KRS), the body that recommends judicial appointments to the president, is elected from it being appointed by senior judges to appointments by parliament.
The ECJ and the European Commission objected to the PiS reform on the grounds that it allegedly threatened judicial independence. That was despite the fact that the Polish Constitution does not specify how the KRS should be selected and makes all judicial appointments the final and discretionary responsibility of the Polish president.
The present Tusk government agrees with EU institutions on the illegitimacy of PiS reforms and has attempted to legislate to nullify judicial appointments made during the lifetime of the last PiS administration.
Those attempts have proved unsuccessful as neither the current President Karol Nawrocki, nor his predecessor – both aligned to the now opposition PiS – would sign off on the reforms. In addition, the constitutional court, whose legitimacy is also questioned by the Tusk government and EU institutions, has ruled that the appointments were made in accordance with the Constitution.
As a result of the gridlock between the head of state and the government, the status of some 3,000 judicial appointments made between 2017 and 2023 are under question and therefore so are the rulings made by those judges in the Polish courts.
When Poland’s system of government changed from Communism to democracy back in 1989 there was no wholesale questioning of verdicts issued by courts and judges who had been controlled by the Communist state. At the time it was decided that it would be impractical to query all legal decisions reached over the time of the previous regime.
