Everything you need to know about the rule of law in Poland

Anna Bator-Ciesielska, a justice of the District Court in Warsaw, has distinguished herself as another brave Polish judge. Judge Bator-Ciesielska referred questions to the EU Court of Justice for a preliminary ruling on the powers of the Minister of Justice and on the status of the new National Council of the Judiciary, the majority of whose members are now elected by politicians rather than by judges, as the Constitution dictates. The filing also asks whether rulings issued by the Supreme Court will be valid under European law if a representative of the new NCJ is involved in the process of assigning cases to the Supreme Court.

More specifically, judge Bator-Ciesielska asks whether the following is compatible with EU law:

– delegating by the Minister of Justice of judges to adjudication panels on the basis of a one-person decision, if the criteria for this decision are not known and no appeal against them can be lodged to any court, and the Minister may arbitrarily withdraw the delegation at any time.

– a situation where a court ruling issued by a judge delegated by the Minister of Justice may be appealed against only to the Supreme Court, where the order in which cases are considered is decided, inter alia, by an individual elected by the new National Council of the Judiciary. Judge Bator-Ciesielska has queried whether such a ruling by the Supreme Court creates any effect under EU law.

Judge Bator-Ciesielska is seeking to learn whether this is consistent with the requirement of effective judicial protection, including the independence of the judiciary, and with the requirements arising from the presumption of innocence.

On 30 August, Judge Anna Bator-Ciesielska was to settle a criminal case in the District Court in Warsaw adjudicating in a panel with Judge Przemysław Radzik, who is also the disciplinary spokesman for judges. Bator-Ciesielska refused.

Radzik’s name has appeared in the media in the context of a scandal in the Ministry of Justice concerning allegations of him coordinating a social media smear campaign with the Ministry of Justice against judges critical of changes in the court system.

On 2 September, Judge Radzik issued a statement demanding that “the National Council of the Judiciary, the Minister of Justice – General Prosecutor, the President of the District Court in Warsaw and disciplinary bodies, within the scope of their powers, adopt a position and take specific actions concerning (…) the behaviour of Judge Anna Bator-Ciesielska, preventing her and possibly other judges from taking actions producing chaos and destabilizing the legal order of the Republic of Poland”.

On 2 September, the Board of the Association of Polish Judges Iustitia issued a statement in which it declared that the Deputy Disciplinary Spokesman for Judges, Michał Lasota, and Przemysław Radzik were unlawfully initiating proceedings, as they circumvented the spokesmen competent in particular courts.

On the same day, basing on a case she was to rule on with Radzik, Judge Anna Bator-Ciesielska presented her questions to the Court of Justice (file number X Ka 645/19).

The CJEU is presently conducting several proceedings concerning preliminary questions posed by Polish courts concerning the effects of changes in the justice system.

In June, the Advocate General of the EU Court of Justice, Evgeni Tanchev, issued a crushing opinion to the National Council of the Judiciary and the Disciplinary Chamber of the Supreme Court in response to questions posed by the Supreme Court. The judgment will be announced in the autumn.

Furthermore, the Advocate General will reveal its opinion in joined cases C-558/18 and C-563/18 on 24 September.

Polish judges are using questions to the EU Court of Justice to obtain hard evidence from the CJEU that the changes in the judiciary being rammed through by the ruling majority are not compatible with EU law.

Their attitude has also inspired their colleagues in Hungary.

Polish judges are turning to the CJEU because they do not believe in the independence of the Constitutional Tribunal, whose remit is to rule on the compatibility of the introduced solutions with the Constitution of the Republic of Poland.

The Commissioner for Human Rights has either withdrawn or refused to submit applications to the Constitutional Tribunal, due to the fact that the adjudicating panels include persons who occupied seats in the Tribunal of judges who had been duly elected in 2015. As a result, judgments issued by such panels could be challenged, which would lead to further uncertainty.

The Commissioner has used such arguments in respect to the repressive law reducing pensions for persons working or remaining in the service of some agencies of the state apparatus in the years 1944-1990.

[Author: Anna Wójcik]