By Maciej Jóźwiak
After November 2015, when the right-wing party, Law and Justice (PiS), won the parliamentary elections and obtained majority in the Polish Parliament, a number of judicial reforms were commenced that stirred-up dramatic controversy in Poland and in Europe. The reforms covered the two key Polish judicial institutions – the Constitutional Tribunal and the Supreme Court. The Government also introduced changes in the law regarding state courts and prosecutors.
This play called “judicial reforms” started with an amendment which combined the roles of the General Prosecutor and the Minister of Justice. Currently these two positions are handled by one man. The amendment granted to a politician (the Ministry of Justice) the right to be involved in and to supervise all penal ongoing proceedings, either conducted by a prosecutor or before the court. This amendment restored a legal status of these positions changed in March 2010 by the previous government, established by the Civil Platform (PO).
The second act in the reform drama was the amendment to the Act on the Constitutional Tribunal. The reform itself was initiated by the previous government. On 8 October 2015, PO introduced a new law regulating the nomination procedure of the Constitutional Tribunal judges. Under this law the previously tenured Parliament was entitled to nominate two additional constitutional judges (two more than the standard three) for the next nine years. The Act, however, has been sent to the Constitutional Tribunal for a determination as to whether it is constitutional. In the meantime, the President of Poland, who won the election as the representative of PiS, refused to swear-in all five judges.
On 19 November 2015, PiS introduced a reparation Act which allowed the newly tenured Parliament to again nominate five constitutional judges, three already nominated by the previous Parliament and two new ones. Moreover, under this Act, the tenure of the President and the vice-President of the Constitutional Tribunal was terminated. The whole process of the introduction by the Parliament, the signing by the President and the entering into force of the reparation Act took no longer then one week. Under the new reparation Act, five new judges were nominated on 2 December and four of them were sworn-in by the President at night, between 2 and 3 December 2016.
On 3 December, the Constitutional Tribunal issued a judgment concerning the amendment Act introduced by PO. In its judgment, the Tribunal decided that three of the nominees were appointed properly but the appointment of the other two was unconstitutional. The government refused to publish this judgment. On 9 of December 2016, the Constitutional Tribunal ruled that the provisions of the reparation Act regarding nomination of the three already appointed judges and the termination of the tenure of the President and vice-President of the Tribunal were unconstitutional. The government refused to publish this judgment as well.
After 9 of December 2016 two additional amendments acts were introduced by PiS. Both were analyzed by the Tribunal and neither was declared constitutional. Neither judgment of the Constitutional Tribunal regarding these amendments was published by the government.
The second act of the reforms focused on the Supreme Court and the National Judicial Council. The amendment to the Act on the Supreme Court was introduced by PiS, together with an amendment to the Act of the National Judicial Council and the Act of the System for the State Courts.
The two key changes at the Supreme Court concerned: (i) a default retirement of all the Supreme Court judges, with the exclusion of those who are indicated by the Minister of Justice, and (ii) an appointment of a new chamber in the Supreme Court, dedicated to hearing disciplinary actions against judges.
The amendment of the law concerning the National Judicial Council focused on the politicians having more influence on this judicial body by establishing the new chamber of the Council, made up of Parliament’s representatives. This new chamber would have the right to veto all decisions taken by the “old chamber,” where inter alia sit judges as well as representatives of government and the representative of the president, among others.
And finally, we in the audience saw the Act of the System for the State Courts, which contained the following changes: (i) the power of the Ministry of Justice to call off and nominate new presidents of the state courts was established; (ii) cases were allocated between the judges based on their “weight” which is established by the Ministry of Justice; (iii) a case would have to be examined by the same judge from beginning to end; and (iv) the Act distinguished the age of retirement between male and female judges.
The proposals described herein have raised crucial constitutional doubts and even inspired a series of street protests by Polish citizens in many cities all over Poland.
The President of Poland decided to veto two of those acts (the Act of the Supreme Court and the Act of the National Judicial Council) and has signed the third one. The Act of the System for the State Courts comes into force 14 days after being published.
The drama, however, continues. The President has announced that he will prepare and present his own proposal of the amendments to the Act on the Supreme Court and the National Judicial Council within a couple of months. Thus, we are still waiting for an epilogue.
These reforms were introduced to improve the judicial system in Poland. As it was presented, the new law was intended to speed up proceedings, making the system more transparent and understandable for citizens. Instead, however, the reforms have made the judicial system more dependent upon politicians.
In times where certainty of the independent judicial system is one of the most important factors for business development, the situation in Poland is being viewed by some with worry. To minimize the risk of adverse influence of these recent legislative changes on business, many entrepreneurs are opting to include arbitration clauses in their contracts. Despite some formal requirements for arbitration clauses under the Polish law, arbitration and other ADR methods may offer just the calming influence needed to counter the dramatic recent changes in the Polish judicial system.