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Polish judicial reforms

05 September 2018 Blanka Kolenikova

Personnel changes at the Supreme Court - the highest court in Poland - due to legislation lowering the compulsory retirement age represent the latest development in the ongoing dispute over Poland's wider judicial reforms.

  • The contested legislation, which will lead to the replacement of around 30 personnel of the Supreme Court (Sąd Najwyższy: SN), is criticized as the latest attempt by the ruling right-wing, conservative Law and Justice (Prawo i Sprawiedliwość: PiS) party to politicize the judiciary.
  • SN's response - challenging the legislation at the European Court of Justice and suspending it - has the potential to result in inconsistent rulings.
  • October/November local elections results and the intensity and frequency of likely protests against the government will determine the future of PiS's wider judicial reforms.

Latest development…
The Polish National Council of the Judiciary (Krajowa Rada Sądownictwa: KRS), a public institution responsible for overseeing ethical compatibility and nominating judges, has reportedly nominated new candidates to the SN. The move comes after the new legislation by PiS, lowering the compulsory retirement age for SN judges, came into effect on 3 July. The law will push almost 30 SN judges into forced retirement, including the SN president Margorzata Gersdorf (see Poland: 24 July2018: European Commission's criticism unlikely to persuade Polish government to halt Supreme Court legislation). The SN has criticized the legislation for "politicization of the judiciary" and for the first time in Poland's history has suspended the legislation, while turning to the European Court of Justice (ECJ) for a legal opinion as to whether the new law adheres to the European Union (EU) treaties and the EU Charter of Fundamental Rights. Following the KRS's nominations, Poland's Association of Judges (Iustitia), supported by some other civil society activists, has called on President Andrzej Duda - who has the right to approve or dismiss KRS's nominations - to wait for the ECJ ruling before making final appointments.

…in the ongoing issue over contested judicial reforms
The SN's and KRS's actions continue an ongoing political conflict over the judiciary that was initiated when the PiS assumed power in 2015 and embarked on a large-scale judicial reform. The stated intention is to make the system more transparent and efficient, and to curb corruption. Despite Poland having carried out some judicial reforms prior to 2015, Polish courts still suffer from ineffectiveness and a very high backlog of cases. The situation remains serious especially in Warsaw, the country's capital and business center, where on average a commercially related trial can last three years, compared to the national average of two years.

Initially, there had been wider acknowledgement from the public and even the political opposition about the need for judicial reforms to make the system more efficient. However, critics now claim the judicial reform was narrowed down to personnel replacements, rather than significant systemic changes that would improve the system. As such, opponents to the PiS's judicial reforms argue that the measures undermine judicial independence, allowing the PiS party to appoint its nominees. For this reason, the judicial reforms have triggered an infringement procedure by the European Commission as well as investigation under the EU's Article 7 rule of law procedure. The Commission argues that the judicial changes hinder the system's independence and undermine the EU's democratic system of checks and balances.

Nonetheless, the SN's move also has resulted in divided opinion among Poland's constitutional experts: some argue that the decision was justified amid ongoing concerns over the state of the Polish judiciary due to PiS's judicial reforms. Others argue that the suspension of law by the SN creates a precedent that may cause longer-term instability in the judiciary, as courts of any level would start arbitrarily suspending previous rulings that they deem contradict EU laws. Due to such divergent legal opinions, it is unlikely the conflict will be resolved at a domestic level without the ECJ's intervention. If passed immediately, the ECJ's opinion could serve as an important indicator for further developments. However, given that even accelerated ECJ procedures take on average around seven months, it is unlikely that Duda, or PiS, will wait for its decision, pressing ahead with the SN personnel replacements (as proposed by the KRS), further antagonizing the disputing parties.

Outlook and Implications

Elections due in 21 October and 4 November will be a key indicator to watch. Despite the controversy surrounding the judicial reforms, the PiS leads in public opinion polls by around 11% compared to the opposition Civic Platform. The PiS has above all benefited from Poland's favorable economic growth (IHS Markit is projecting GDP growth of 4.1% in 2018) as well as extensive welfare program. However, should PiS perform worse in the local elections than the current opinion polls indicate (according to Idris pollster, PiS could secure 10 out of 16 local assemblies, based on the August data), the party would be likely to tone down its rhetoric and become more accommodating to the domestic critics' and the Commission's judicial reform concerns.

In contrast, stronger than expected results would probably embolden PiS to become more combative in its rhetoric, hoping such a strategy would benefit its prospects at the European Parliament (May/June 2019), parliamentary (fourth-quarter 2019) and even presidential (third-quarter 2020) elections. Examples of such approach include accusing the EU of interfering in Poland's domestic affairs in terms of the criticism of its judicial reforms, or refusing to support some EU-wide policies, for instance those related to migration. Such approach would be well received particularly by PiS's core conservative, rural voter base.

Additionally, the frequency and intensity of public protests against the PiS-led government and/or specifically against the judicial reforms will also likely shape the government policy course in this matter. Several demonstrations, largely peaceful, have already taken place: the latest one on 27 August, when a group of protesters blocked the entrance to the KRS building in Warsaw until they were removed by the police. Further protests are likely in September after the summer holiday season. If the protests become large (e.g., attract tens of thousands of people), involve multiple cities and become disruptive (e.g., either turning violent or taking place several times a week), this would be likely to put pressure on government to postpone implementation of the SN legislation and possibly judicial reform overall, until the ECJ issues its ruling and/or Poland reaches a compromise with the Commission. We see this scenario, however, as unlikely.

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