Selecting judges in Poland and Germany: challenges to the rule of law in Europe and propositions for a new approach to judicial legitimacy (original) (raw)
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European Papers, 2020
The present Insight compares the decisions of two chambers of the Polish Supreme Court regarding the domestic enforcement, under the terms laid down in the Polish Constitution, of a judgment of the Court of Justice, the independence of the judicial branch and the consequences of a judicial appointment. The starting point for the analysis is an overview of recent reforms of judiciary in Poland and the judgment of the Court of Justice in A.K. (Indépendance de la chambre disciplinaire de la Cour suprême) [GC] (judgement of 19 November 2019, joined cases C-585/18, C-624/18 and C-625/18). The first discussed ruling of the Supreme Court aimed to fully enforce that judgment of the Court of Justice, whereas the second sought to limit its actual impact.
The position of the judge in Poland within the judicial system
2020
The purpose of the article is to present the fundamental rules and regulations constituting the position of the judge in Poland, which finds its basis first of all in the regulations of the basic law interpreted over the years by the Constitutional Court, but now – in the norms of international law. Moreover, the author included his thoughts on the issues of the legitimization of judicial power and its relationship with the legislative and the executive. He also referred to the ongoing discussions on the status of the National Council of the Judiciary as a constitutionally-established body, whose task is to guarantee the independence of courts and the independence of judges in Poland. Furthermore, the article discusses the procedure and criteria of appointing a candidate to the position of a judge to different levels of the judiciary. It also deals with the basic elements guaranteeing the effectiveness of the principles of the independence of the judiciary such as neutrality, irremo...
Judges and Representatives of the People: a Polish Perspective
European Constitutional Law Review, 2020
Relations between the judiciary and the elected authorities (i.e. the legislative and the executive) in each country and at all times are among the most sensitive from the point of view of statehood. The present paper undertakes a problem of the constitutional backsliding in Poland in and after 2015. It briefly summarises the problem of the independence of judges and courts from the perspective of both the Polish Constitution and international law and questions the argument that state sovereignty enables the political majority to impose unlimited change on the judicial system. The decline of constitutional review shows the disintegration of the discursive community of law in a country once treated as a model of the successful democratic transfromation. Polish judges found themselves in a hopeless position between the need of the constitutional obedience and the rising political pression. The strategy of the Polish government, quite different from the Hungarian one, highlights the need for a debate about the sources of legitimising the judiciary. Not in every country and under every political circumstance that the form of judges’ participation in public discourse can be limited to only typical judicial activities. The democratic crisis in Poland reveals a dramatic need for judges as educators and members of society to be active also outside the courtroom. Otherwise, it might not be possible to bolster the level of social confidence in the judiciary, and thus to strengthen its legitimacy, which has never been high and has been further reduced in recent years, mostly as a result of the progressing global socio-political crisis, which manifests itself in Poland and other Eastern European countries in a return to authoritarianism. A well-expressed but firm opposition to limitations placed on the constitutional competences of the judiciary by political authorities – the latter claiming to have the necessary democratic mandate – is not a form of political activity that is prohibited for judges, but is rather one of the legitimate instruments of participation in the debate. Even more than that, it is a manifestation of the judges’ implementation of their mandate towards the nation, which has constituted the judiciary as one of the authorities by which to express its will.
The article deals with two main problems. The first concerns the interpretation of the concept of "court" within the meaning of the provisions of Art. 47 CFR and Art. 267 TFEU. The second part is devoted to the analysis of judgements of the Court of Justice regarding the reform of the Polish judicial system. It enables one to draw several conclusions. Firstly, the Court of Justice found that Poland had violated its Treaty obligations by introducing the provisions that determine the retirement age of judges and establish the procedure enabling the extension of active service by virtue of the discretion of the President of the Republic of Poland. Secondly, the Court of Justice analysed the concept of "court" from the perspective of Art. 19, para. 1, subpara. 2 TEU. It emphasised that these provisions obligate the Member States to establish a system of legal remedies and procedures ensuring effective judicial protection in areas covered by EU law. It also stressed that this concerns a body that can only potentially settle cases with an EU element. Thirdly, the Court of Justice clarified the concept of judicial independence in the context of irremovability of judges and judicial impartiality. It formulated a certain test of judicial independence that should be conducted by the referring court.
2019
I. The essence of the democratic power established in the Constitution of the Republic of Poland (hereinafter the Constitution) is to limit this power in order to protect the rights of the individual from threats that may be posed by the rule of the majority, especially when this majority seeks to impose its values and beliefs on others. This limitation is expressed both by the principle of the separation and balance of powers, as well as by the principle of a democratic state ruled by law and, above all, by the principle of inherent and inalienable human dignity. The system of the Republic of Poland and the interpretation of provisions concerning the organisation of the state apparatus and its mode of operation are subordinate to the latter principle.1 According to Article 30 of the Constitution, the source of rights and freedoms is the inherent and inalienable dignity of the person. This dignity is inviolable, and it is the responsibility of the public authorities to respect and p...
Judiciary Saga in Poland: An Affair Torn between European Standards and ECtHR Criteria
9 Polish Rev. Int'l & Eur. L. 39 (2020) , 2020
Judicial independence is a cornerstone of contemporary constitutional systems within European legal orders that Poland, among many other European States, codified the principle at a constitutional level through Article 173 of the Constitution of the Republic of Poland. Nonetheless, the concrete implementation of the theoretical framework remains a bone of contention between the national States and the main international actors. The latter faction, based on the acknowledgement that no single political model could ideally comply with the principle of the separation of powers and secure complete independence of the judiciary, has developed an impressive number of legal tools that are part of a more diffuse European trend of interpretation, which should be labelled as European standard or European corpus aiming at preserving the judiciary order from outward interferences by the legislative and executive powers. In Poland, after the extensive victory earned by the Law and Justice (PIS) party in the Parliamentary election of 2015, the executive branch propelled a series of interlock reforms with the aim of reshuffling the whole judicial asset of the country. In the first place, the way forward was marked by a compound diatribe concerning the Constitutional Tribunal, and the essence of the dispute concerned the mandate’s legitimacy of three sitting judges after the Court’s reinterpretation of the K 34/15 ruling that ended up on 2.12.2015 with the election of five new judges appointed ex novo by the ruling party. Afterwards, the attention shifted towards the rethinking of the National Council of Judiciary (KRS), a mixed judicial body guardian of the independence of the judiciary, asserting, firstly, the unconstitutionality of its statute and, subsequently, planning a new method of appointment for the judicial members previously elected by the judiciary itself. Ultimately, as a closing step, the spotlight turned in the direction of the Supreme Courts judges, where the most spectacular sweep was the provision aimed at lowering the retirement age for the sitting judges on a scheme similar to the proposal made by the Hungarian government in 2011, where voices were raised, respectively, by the Hungarian Constitutional Court, the European Court of Justice and the European Court of Human Rights, and where, regretfully, the judicial independence standard played a minor role in the Courts’ reasoning. This concluding phase convinced the Commission to launch an expedited procedure against Poland before the Court of Justice, thus forcing the Polish government to retracts previous law through the adoption of a repealing law on 17.12.2018; in any event, as predicted earlier by the Opinion delivered by the AG Tanchev in Case C-619/18, the ECJ epilogue released on 24.6.2019, dissimilar to the one reached in the Hungarian case, was the heaviest ‘contrariness to EU law’.
Polish civil judges as European Union law judges: knowledge, experiences and attitudes
The study seeks to provide a better understanding of the way civil judges of lower courts in Poland – a relatively new Member States of the EU - behave in the context of EU law and, moreover, to explain how the national judges adapt to the new legal circumstances created by the law of the European Union. For that purpose, the study examines the way national judges approach the law of the European Union by providing empirical, that is to say quantitative and qualitative data gathered among Polish private law judges of lower courts. The respective data was collected by means of a questionnaire distributed among the respective judges and semi-structured in-depth interviews conducted with them. The present study is a descriptive attempt at evaluating and explaining what is actually happening in the Polish civil courts in the context of EU law application and more precisely how and why national judges participate in the process of legal integration within the European Union. For the fore...
On the Ethics of the Profession of a Judge in Poland
2019
The judges form a special legal corps which as a carrier of the authority of the judiciary has to fulfill an extremely important mission both systemically and socially. The power vested in them is in fact closely connected to such universal values as justice, freedom or equality. The public interest in maintaining citizens’ trust in the institutions of the judiciary obliges the legislator to establish certain ethical requirements for the judges. They are to ensure that the judiciary is in the hand of people with appropriate knowledge, high ethical standards and proper dose of life experience. The aim of the article is to review and discuss Polish regulations regarding the ethics of the profession of a judge, with particular emphasis on such concepts as: the independence of the judiciary, the dignity of the judge’s office or the „impeccability of character” of the judge.
Poland: Current Debates on the Supervision over the Administrative Activity of the Common Courts
European Public Law, vol. 20, issue 3, 2014
This article examines the institution of the supervision over the administrative activity of the courts of general jurisdiction (the so-called common courts) in Poland. This kind of supervision is performed in Poland by the Minister of Justice, judges seconded to the Ministry, as well as the presidents of the courts. The author considers the basic constitutional principles referring to the status of the judiciary and draws the reader's attention to the discussion on the current regulations concerning such supervision. The problem, first of all, lies in the ambiguous wording of the statutory regulations, which makes it difficult to clearly distinguish administrative tasks in a strict sense from duties connected with the dispensation of justice. Despite the friendly attitude of the Constitutional Tribunal towards the supervisory competences of the Minister of Justice, the author argues, like many scholars and judges in Poland, that the administrative activity of the common courts should instead be controlled by judicial organs (i.e., the First President of the Supreme Court on his own or with the cooperation of the National Council of the Judiciary). At the same time, the author is convinced on the necessity of pending general debates concerning the competence of executive power towards the judiciary in future.