Thousands of Polish citizens in 160 cities took to the streets on Wednesday evening to protest against a draft law aimed at crushing judicial independence in Poland and at silencing and / or punishing judges who act in full compliance both with Poland’s Supreme Court and Constitution, and with a recent ruling from the EU’s Court of Justice. This is not the first attempt by the right-wing PiS [‘Law and Justice’] party in power to seize control of the judiciary, however the measures proposed against independent judges are so openly repressive that the law would inevitably raise questions about Poland’s continued membership of the European Union.

On coming to power in 2015, the PiS government behaved very much like UKraine’s President Viktor Yanukovych and his Party of the Regions in 2010. There were blitzkrieg moves to ‘tame’ a major part of the media and legislation to secure control over the judiciary. In Poland’s case this has meant that public television has effectively become a mouthpiece for the ruling party, with all issues of public importance, including the attack on an independent judiciary, reported with major distortion and manipulation.

PiS effectively took control of the Constitutional Tribunal back in 2015 and, under Zbigniew Ziobro as both Justice Minister and Prosecutor General, secured a dangerous level of control over prosecutors. Gaining control over judges meant a direct violation of the separation of powers (the legislature; executive and judiciary) which is fundamental to any democracy and judges themselves began sounding the alarm. There were huge protests in 2017 over efforts to take over the Supreme Court, and although President Andrzej Duda eventually signed a bill that was just as dangerous, the protests did lead to the EU’s Court of Justice becoming involved, and to PiS withdrawing some of the most overtly unlawful methods of getting rid of independent judges. In 2018, PiS did succeed in politicizing KRS [the National Council of the Judiciary] which appoints judges, and in creating a ‘Disciplinary Chamber’ within the Supreme Court, made up largely of ex-prosecutors close to Ziobro chosen by the new KRS..

While politicians connected with PiS talk of ‘reform of the judiciary’, the European Network of Judiciary Councils reacted swiftly to the creation of the ‘neo-KRS’, by finding that it was no longer apolitical, and suspending it from the Network. On 19 November 2019, the EU Court of Justice issued a long-awaited ruling in response to a question from the Supreme Court. The ruling disappointed those who hoped that the Court would immediately state that neo-KRS was no longer an independent body, as was not the new Disciplinary Chamber. Instead, EUCJ gave clear guidelines as to what constitutes an impartial and independent court, and left it to the Supreme Court to implement these directives.

The Supreme Court issued its damning judgement on 5 December. It said that neo-KRS did not fulfil the demands of judicial independence, and that the Disciplinary Chamber of the Supreme Court, whose ‘judges’ were chosen by neo-KRS was not a court in terms of EU law.

None of this was at all unexpected, but it does, of course, raise the spectre of judicial chaos. Essentially any ruling passed by a ‘judge’ chosen by neo-KRS can now be placed in question, including by a court in another EU country. The problem is exacerbated by the government’s refusal to comply with a ruling from the High Administrative Court (Naczelny Sąd Administracyjny) in July 2019 which ordered publication of the list of names of judges who supported the successful candidates for neo-KRS. There is clearly something wrong with these lists, with this presumably more than the already unsavoury fact that at least one candidate has admitted to signing in support of himself. This may have been behind one of the most aggressive acts of repression against a judge from Olsztyn, Paweł Juszczyszyn. He was demoted and then suspended after quite legitimately asking, as part of an appeal case that he was hearing, whether the first-court judge was entitled to pass rulings. In order to determine this, he had demanded from the Office of the Sejm that the above-mentioned lists supporting candidates to the new KRS be provided.

This is not the only time that independent judges have been demoted, suspended or faced disciplinary proceedings for carrying out their duties. The bill now before the Sejm is seeking to legislate such methods in what is obviously an attempt to intimidate judges into silence.

Ever since PiS first came to power in 2015, repressive legislation has been introduced and generally voted through late at night. This bill appeared, tellingly enough, the night before 13 December, the 38th anniversary of Martial Law imposed by a Soviet-controlled socialist regime to crush the Solidarity movement.

The new measures proposed essentially prohibit any judges and prosecutors from asking the legitimate questions that arise from the EU Court of Justice’s decision and the Supreme Court’s ruling. Instead of dealing with the judicial chaos they have created, PiS is trying to terrorize judges into silence, using the threat of severe penalties, demotion or worse. The law would apply even to judges of the Supreme Court, as well as to prosecutors.

The idea is that all queries should be directed to the Constitutional Tribunal which has been totally discredited through the appointment of people whose right to be considered judges is, in many cases, also in question. President Duda recently swore in two highly contentious politicians – Stanisław Piotrowicz and Krystyna Pawłowicz - as Constitutional Tribunal judges, despite their political engagement and major involvement in the worst aspects of PiS’ judicial changes. The appointment of Piotrowicz is particularly incredible given his past as a communist prosecutor who is known to have been involved in the persecution of at least one opposition figure. His appointment makes the government’s and President’s attempts to undermine judges of the Supreme Court by saying that they were first sworn in during communist times seem especially cynical. Piotrowicz’s appointment and the appearance of the new bill have generally coincided with a renewed campaign from the PiS-controlled media and on social media to stir up hatred towards judges. Earlier in 2019, it was discovered that a Twitter hate campaign defaming judges had been run by one of Ziobro’s deputies. PiS and Ziobro himself have claimed that he knew nothing about it, though most analysts believe this to be implausible.

The bill essentially turns everything on its head. Judges speaking out about the politicized neo-KRS would face disciplinary proceedings for their supposed ‘political behaviour’. Prominent PiS figures have even claimed that Poland is simply following German and French practice, a claim roundly denied by Laurent Pech, a French Professor of Law. In an interview for Wyborcza, he warned that „the government is leading your country to catastrophie. Poland will pay a bitter price for the shocking idea of subjugating judges.”

PiS, controlled by the head of the party , Jarosław Kaczyński, has often been impervious to protests, however it is possible that this time they will back off from at least some of the most appallingly repressive measures. Although PiS MPs have virtually never bucked their leader, however unconstitutional the laws they were passing, this time it will show since the senate is now controlled by the opposition. The latter cannot stop any bill, but they can prevent it being passed quickly and late at night, and can also highlight its undemocratic nature.

The other question which may not worry Kaczyński, but could scare people in his party and could certainly hurt Duda in the coming presidential elections is the fact that the new bill is so obviously in violation of European Union law. News of a recent survey showing over 40% of Poles having a negative attitude to the EU may suggest that the PiS-controlled TVP and individuals on social media are engaged in a very dangerous attempt at manipulation, since Poles have always been heavily in favour of EU membership. The EU is often painfully slow to react, but it would surely have no choice if judges were being openly punished for complying with EU law. Judging by the scale of the protests on 18 December, that is categorically not something that a very large part of the population would want.