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By Olivier Bault.

Published originally in French on Réinformation TV.

Poland – On Tuesday, 2018, July 24, the Polish Senate adopted in first lecture several amendments to the reform laws of the Judiciary. The particularity of those amendments was that they were an answer of the Polish parliament to the revolt of a part of the judges, supported by Brussels, against reforms that were voted by the parliament. The main amendment aimed to counter the obstruction announced by several judges and two associations of magistrates in order to hinder the nomination of a new president of the Supreme Court that is in Poland the highest judiciary instance in civil and criminal matters, as well as for labour laws and the military courts. Is that there an outburst of the judges’ dictatorship against the parliamentarian democracy?

Until now, the Judiciary was in Poland the only one of the three powers that did control the other ones and itself

Until now, the Judiciary was indeed the only one of the three powers that was able to control the others and itself without any external interfering, and the judges who abused of their power, were seldom punished by their peers of the National Council of the Judiciary (Krajowa Rada Sądownictwa, KRS). That is moreover what lead the PiS that is governing since the autumn of 2015, to modify the nomination modus of the 15 judges of the KRS (out of 25 members in total), in order that they would not be chosen by their peers anymore but by the parliament, as the Polish constitution did not mention by whom those 15 judges should be nominated. The argument of the existence of a post-communist shadow state anchored in the Judiciary is also what was used to justify the reduction of the retirement age from 70 to 65 years for all judges, aligning this way this age on the general retirement regime. That is this aspect of the reform of the Judiciary that is now the very centre of the revolt of a part of the judges today and particularly of the outgoing president of the Supreme Court, Małgorzata Gersdorf. She indeed considers that she is to remain president of the Court until the expiration of her mandate in 2020 and continues to come working at the seat of the Supreme Court in Warsaw, even if she avoids taking part in audiences (which verdicts would then have no value, as according to the law voted by the parliament, she is retired).

The retired president of the Supreme Court leads the attempted judicial putsch. The parliament majority counterattacks

To put it short, among the 120 judges of the Supreme Court planned for after the reform (versus 74 in an active service before the reform), 27 are older than 65 years and should, for continuing to serve, address themselves to the president of the Republic. The latter has then, before taking a decision, to ask an advice from the KRS. In theory, the PiS has this way the possibility – considering the change of the retirement age and the reorganisation of the Supreme Court – to supervise the nomination of more than the half of the judges of the reformed Supreme Court. To be more precise, this is President Duda, a member of the PiS, who will nominate the future members of the Supreme Court on proposition of the reformed KRS from which a majority of the members have been chosen by the PiS. In June, even before the retirement of a part of the judges who have reached the age of 65 years (some did not ask to remain and among those who wished to continue to remain active, a part has got a negative answer from the KRS, particularly due to their past as judges in the service of the communist dictatorship), President Andrzej Duda had already announced 44 vacant positions. But for nominating five candidates for the presidency of the Supreme Court to the president of the Republic, a quorum of 110 judges out of 120 was required. Facing the announced obstruction against the nomination of new judges to the Supreme Court (two judges organisations, Themis and Iustitia, appealed to their members to block the process), this quorum was mosr probably not reachable for a long time. In order to counter this revolt among the judges, the majority of the parliament voted, through an accelerated legislative procedure, an amendment to its own law reforming the Supreme Court and reduced the quorum down to 80 judges out of 120.

The outgoing president of the Supreme Court could have asked to continue to work (the declarations of President Duda let think that he would have agreed with it) and could even have made an application before the Constitutional Court about the lowering of the retirement age for the judges already in function. Instead of it, she refuses to obey the law and declares herself only submitted to the constitution (or rather to her own interpretation of the constitution) that guarantees her a 6 years mandate (but without precising that this mandate could not be interrupted by the retirement age applicable to judges as this age that, according to the constitution, is to be defined by the parliament). Curiously she went to Germany in order to get the support of her counterpart, the president of the Federal Court, Bettina Limperg, who, however, knows without any doubts the Polish constitution and laws as wrong as Frans Timmermans, the vice-president of the European Commission who persists in wanting to put his nose into the Polish reforms and now wants to call on the European Court of Justice against the reform of the Judiciary decided by the Polish parliament. Mrs. Gersdorf has also got the support of her surrogate, Józef Iwulski, nominated on an interim basis at the head of the Supreme Court in his quality of elder of the judges. In contrast to Gersdorf who was a member of Solidarność in the 80’s, Iwulski was a communist judge and participated to judgments against opponents under the martial law declared by General Jaruzelski and his military junta, what he had hidden in violation of the law, in his declaration towards the Institute of National Remembrance (Instytut Pamięci Narodowej, IPN). The KRS gave a negative advice concerning Iwulski’s request to continue his activity after the legal age of retirement.

Despite of the active support of Brussels, the judges’ dictatorship has lost a battle against the parliamentarian democracy in Poland

Not all Polish judges accept the attitude of the rebellious judges and of the magistrates associations Themis et Iustitia. Several eminent members of those associations who had expressed a divergent opinion, have been expelled of them. The demonstrations organised since two weeks in front of the Polish parliament did not appeal so much people, and the Polish opposition as well as the “putschist” judges put furthermore their hope into the European Court of Justice. However, even if it would accept to take on the reform of the Polish Judiciary that normally does not belong to the EU competences, the juridic effects of the laws voted by the sovereign Polish parliament would already have become irreversible. Between parliamentarian democracy and judges’ dictatorship in Poland, the elected parliament has already won a battle. And if the Polish people dislike those reforms, they will just have to vote for other representtives at the next general elections.

Translated by the Visegrád Post.