Independence of judges and prosecutors in Poland in light of international standards

Abstract

Open AccessIndependence of judges and prosecutors in Poland in light of international standardsMaciej Serowaniec, Marcin DorochowiczMaciej SerowaniecSearch for more papers by this author, Marcin DorochowiczSearch for more papers by this authorhttps://doi.org/10.7767/9783205217381.37SectionsPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinkedInRedditEmail About1. IntroductionAs the bearer of the judiciary’s authority, judges and prosecutors form a special legal corps that has an exceptionally important systemic and social mission to fulfil. This is because the authority entrusted to them is closely linked to such universal values as justice, freedom and equality. The public interest in maintaining citizens’ trust in the judiciary institutions obliges the legislator to give judges and prosecutors a special legal status. This is intended to ensure that the administration of justice is carried out by persons with adequate knowledge, high ethical standards and substantial life experience.1The authors of this article will attempt to answer the question of whether, and to what extent, the reforms initiated by the current government concerning the functioning of the judiciary in the broadest sense of the term affect the independent observance of international and constitutional standards by common court judges and prosecutors. 2. Independence of judges in Poland in light of international standardsThe preservation of the prestige and dignity of the judicial profession is one of the primary objectives pursued by the standards of professional deontology for judges adopted under international and national law. The first recommendations for developing a contemporary judicial ethos were formulated under the auspices of the UN. However, the Basic Principles on the Independence of the Judiciary, adopted by the UN General Assembly in Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, focused exclusively on identifying institutional, functional and financial safeguards to ensure the independence of judges, leaving aside issues of ethics and deontology regarding the judicial profession. Only subsequent charters, documents and recommendations (e. g., the Charter of Judges in Europe,2 Recommendation 94/12 of the Committee of the Council of Europe,3 the European Charter on the Status of Judges,4 the ‘Magna Carta of European Judges’,5 the Report of the Venice Commission on the Independence of the Judicial System6 or the Kiev Recommendations on the Independence of the Judiciary in Eastern Europe7) adapted the previous guarantees to the changing social and cultural realities by emphasising ethical and moral issues. However, the indicated documents continued to emphasise the priority of the values attributed to judges, such as independence, independence or impartiality. The first of these values operates in a dual perspective. In the individual dimension, the independence concerns each judge and the extent to which they are free to decide cases according to their own assessment of the facts and understanding of the law, excluding any influence. On the other hand, independence in the institutional dimension is understood as the independence of the court from the legislature and the executive and as the exercise of jurisdiction over all matters of a judicial nature.8 The concept of independence has also been linked to the responsibility of judges to (among other things) strengthen and protect the legal culture of society. In contrast, impartiality has been defined as the need for a judge to resist judgments based on his or her experiences, stereotypes and prejudices. In parallel, impartiality has also begun to be linked to the judge’s responsibility for the conduct of judicial proceedings.9The Bangalore Principles of Judicial Conduct (Bangalore Principles), adopted in 2002 by the Judges’ Group for Strengthening the Integrity of the Judiciary,10 has also played an important role in shaping the contemporary judicial ethos. The UN Economic and Social Council adopted the document by Resolution 2006/23 of 27 July 2006. The preamble to this document emphasises that ‘public confidence in the administration of justice and the moral authority of judges is of the utmost importance in a democratic society’. Six fundamental principles of judicial conduct are identified: independence, which is a condition of the rule of law and should safeguard personal and institutional independence; impartiality, which is expressed not only in the decision itself but also in how the decision is made; integrity in the exercise of the office; propriety, relating to all activities of the judge; ensuring equality; competence and diligence.11 Despite their non-binding nature, the Bangalore Principles, like the other international documents analysed, have played a key role in shaping national systems of professional deontology for judges. In light of the jurisprudence of the Court of Justice of the EU and the European Court of Human Rights, the international standards on judicial independence and independence of judges insist on the absence of not only real but also even apparent dependence of the courts (i. e., judges) in their adjudicatory activity on factors other than the mere requirements of the law. Therefore, the assessment of whether a body (court) deciding a case is independent, as required by Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention), should be made while particularly taking into account how its members are appointed, the existence of guarantees of protection against external pressure and whether there is an impression of the independence of the body (court).12Of fundamental importance for forming the ethos of the judicial profession in Poland is the provisions of the Constitution of the Republic of Poland of 2 April 1997.13 The Constitution regulates, among other things, the issue of the right of citizens to a court (Article 45), the nature of the judiciary (Articles 175–177) and the status of a judge (Articles 178–181) and formulates specific metanorms of judicial ethics in the form of the principles of judicial independence, independence and impartiality.The concept of judicial independence was used in the Constitution of the Republic of Poland of 1997 without any closer definition. However, there is no doubt that the legislator used a ‘foundational term’ here, the meaning of which was already formed in interwar Poland. In defining the principle of judicial independence, the Constitutional Tribunal indicated that it ‘encompasses several elements such as: impartiality towards the participants of the proceedings; independence towards extrajudicial authorities (institutions); independence of the judge towards the authorities and other judicial authorities; independence from the influence of political factors, especially political parties;14 internal independence of the judge. Respecting and defending all these elements of independence is the constitutional duty of all bodies and persons coming into contact with the activities of the courts’.15Implementing the principle of judicial independence is served by several constitutional institutions of a systemic, procedural and economic nature.16 According to Article 178(1) of the Constitution, judges in the exercise of their office are subject only to the Constitution and Acts. As noted by the Provincial Administrative Court in Poznań, ‘thanks to the above constitutional empowerment, a judge (…) may, in a particular case, when the legislative authority fails to perform its duties or performs them in a highly negligent manner, directly apply the relevant constitutional provision so that the principle ex iniuria non oritur ius is applied in a democratic state of law’.17The institution of judicial immunity also secures the separation of the judiciary from other authorities. As underlined by the Constitutional Tribunal, judicial immunity provides protection ‘for the holders of the judiciary against provocation and retaliation, as well as against pressure (albeit indirect) from other authorities or – which nowadays possess the greatest threat to the distinctiveness of the third power – against the influence of political centres interested in the staffing of the judiciary, and misdirected media pressure’.18 Indeed, according to Article 181 of the Constitution, a judge may not, without the prior consent of a court specified by law, be held criminally responsible (formal immunity) or deprived of liberty. Nor may a judge be detained or arrested (principle of immunity), except when caught in the act of committing a crime, and only if his or her detention is necessary to ensure the proper course of the proceedings.19The Constitution also links to the principle of independence the obligation of judges to remain apolitical (Article 178(3) of the Constitution). A judge may not belong to a political party or a trade union or engage in public activities incompatible with judges’ judicial independence and independence. In addition, a judge may not take up additional employment, except for employment in a teaching, scientific or research position, if the performance of such employment does not interfere with the performance of the duties of a judge.Professional stability is ensured through the principle of appointment of judges by the President of the Republic for an indefinite period (Article 179 of the Constitution) and the principle of non-removability of judges (Article 180(1) of the Constitution). Indeed, a judge’s removal or suspension from office or a judge’s transfer to another seat or position against his or her will may take place only as the result of a court ruling and only in cases specified by statute (Article 180(2) of the Constitution). Moreover, the retirement of a judge due to illness or loss of strength, rendering him or her incapable of performing the duties of his or her office, may take place only in the procedure provided by statute (Article 180(3) of the Constitution). The constitutional regulation further stipulates that in case of a change in the structure of courts or the boundaries of court districts, it is possible to transfer a judge to another court or for the judge to retire with full remuneration guaranteed (Article 180 (4) of the Constitution). Therefore, any attempt to introduce legal regulations that force the termination of judicial service due to a change in the retirement age should be treated as a violation of the standards arising from Article 180 of the Constitution.Article 178(2) of the Constitution, in turn, introduces the requirement to ensure that judges’ working conditions and remuneration correspond to the dignity of their office and the scope of their duties. Indeed, the system of judicial remuneration, which corresponds to the indications of Article 178(2) of the Constitution, is an important element of the judicial system. Therefore, the status of a judge, including his/her financial status, is one of the determinants of judicial independence.20Since the entry into force of the Constitution of the Republic of Poland on 2 April 1997, it seemed that the constitutional standards guaranteeing judicial independence would be able to effectively protect judges from excessive interference from the legislative and executive powers. Following the parliamentary elections of October 2015, the ruling majority embarked on intensive legislative work in the prosecution service, the general judiciary and the Supreme Court. In July 2017, the Sejm adopted an amendment to the Act on the System of Common Courts. The Act introduced, among other things, a new procedure for appointing and dismissing presidents and vice-presidents of courts, a new retirement age for judges and new rules for judicial promotion. This Act and the simultaneously processed draft amendments to the Acts on the National Council of the Judiciary and the Supreme Court provoked opposition from legal circles, as well as mass social protests. Despite the ultimate vetoing of two of the latter acts (on the Supreme Court and the NCJ), the President signed the amendment to the Act on the System of Common Courts. The amended Act entered into force on 12 August 2017. In turn, on 8 December 2017, without public consultation, the Sejm adopted the version of the Act on the Supreme Court proposed by the President.21From the beginning of 2016, the Ministry of Justice has significantly reduced announcing competitions for judicial vacancies, resulting in a so-called ‘freeze’ on judicial posts. Nevertheless, since 2016, the number of vacancies for judicial positions began to increase exponentially, reaching 745 vacancies in April 2019.22 Furthermore, within six months of its entry into force, the Act amending the Act on the System of Common Courts gave the Minister of Justice the power to dismiss presidents and vice-presidents of courts completely at will, without the need for any other opinion. The Minister, exercising his power, dismissed 158 presidents and vice-presidents between 12 August 2017 and 12 February 2018. The amended Act on the System of Common Courts also introduced changes to the disciplinary proceedings conducted against judges of common courts. The changes are primarily related to the strengthening of the competences of the Minister of Justice in this area. Under the legislation, the Minister appoints a new body, the Disciplinary Ombudsman of Common Court Judges and his two deputies, and entrusts judges with the duties of a disciplinary court at a court of appeal. The Minister may also request the initiation of proceedings against a particular judge and appeal against a decision to discontinue proceedings. The Minister may also appoint ad hoc ombudsmen for selected judges. In disciplinary cases involving offences prosecuted by public indictment, the Minister may appoint ombudsmen from among prosecutors who are bound by his or her official instructions. Indirectly, through his or her supremacy over the Disciplinary Ombudsman of the Judges of the Common Courts, the Minister also influences the selection of the disciplinary ombudsmen operating at the appellate and district courts and their actions. The current Minister of Justice has also arbitrarily appointed all the first-instance judges to disciplinary courts operating at the courts of appeal.23 The new legislation prohibits the Supreme Court from questioning the legitimacy of courts and tribunals, the constitutional organs of the state. It also prohibits assessing the legality of a judge’s appointment to office and his or her powers by the Supreme Court or any other authority.24 The newly established Disciplinary Chamber of the Supreme Court at the time made the extremely controversial decision to suspend judges who spoke critically and publicly of the changes being made to the judiciary. This undoubtedly constitutes a breach of international standards. In terms of democratic standards, disciplinary proceedings for judges should be internal, as this is an expression of the organisational autonomy of the judiciary. However, the new statutory regulations appear to limit the previous autonomy significantly. The deliberate undermining of confidence in the judiciary, which has been observed for a long time, also included a campaign of sowing hatred against judges by insulting them in public or spreading false information about them. Judges who were active in a public debate or who issued a ruling unfavourable to the ruling parliamentary majority frequently became the subject of attacks from the public media and social media close to the ruling camp.25According to the Polish Constitution, judges must be appointed for an indefinite period by the President of the Republic on the motion of the National Council of the Judiciary (Art. 179). For this reason, there was also widespread controversy over the amendment of the Act on the National Council of the Judiciary (hereafter NCJ) passed in December 2017,26 which radically altered the previous procedure for selecting the ‘judicial’ members of the NCJ, who under the previous state of law were elected by the respective assemblies of court representatives. In doing so, the term of office for the existing judges who were members of the NCJ was also shortened. In the current legal state, the Sejm selects 15 members of the NCJ from among judges for a joint four-year term. This introduced solution may raise doubts about the NCJ members’ independence due to the involvement of political factors in the selection procedure. These concerns are justified insofar as the amendment of December 2017 abolished the parity of seats allocated to judges representing different types of courts.27 In doing so, the possibility to propose candidates not only by groups of at least 25 judges but also by groups of at least 2000 citizens, was allowed, with parliamentary clubs and the relevant parliamentary committee responsible for preparing the final list of candidates. At first glance, the system of the Sejm electing judges to the NCJ with a three-fifths majority appears to guarantee respect for the rights of the parliamentary opposition. However, if the judges fail to obtain a qualified majority in the re-vote, only an absolute majority of votes is sufficient, which in practice allows the parliamentary majority to shape the ‘judicial’ part of the composition of the NCJ on its own. Thus, the judicial corps is deprived of the autonomous competence to appoint its representatives.28The Venice Commission has issued an opinion29 on the controversial changes to the Act, which regulate the status of the NCJ – changes that the parliamentary majority in Poland did not particularly care for. In the opinion of the Venice Commission, in a state under the rule of law, a significant part or majority of the members of the judicial councils should be elected by judges. However, according to the Act, the Sejm can elect candidates who have minimal support among the judges. The problem is further exacerbated by the fact that all members share a common term of office. In contrast, unsynchronised terms of office are common in Europe, when members elected by parliaments of different terms of office work together. This increases the likelihood that members will represent a variety of political views, which in turn increases the independence of the body. In contrast, the joint election of all members can lead to a politically homogenous NCJ. According to the Venice Commission, these regulations weaken the independence of the judiciary. Based on the new regulations, the members of the new NCJ were elected, and out of 10,000 Polish judges, only 18 candidates for this body were put forward – mainly people who closely cooperate with the Minister of Justice or owe their professional advancement to him. Moreover, the lists of support for the NCJ were kept secret. It is sad to note that in September 2018, the European Network of Councils for the judiciary suspended the membership of the NCJ due to ‘failure to meet the condition of independence from the executive’.30Therefore, it is not surprising that the introduced solutions met with a negative assessment formulated by the Supreme Court in the resolution of the three combined chambers of 23.01.2020, BSA I-4110-1/20. Furthermore, the Court of Justice of the EU was also sceptical about the introduced changes in its judgment of 19.11.2019, which stressed that the degree of independence of the NCJ from the legislative and executive powers in performing the tasks entrusted to it by national legislation as a body entrusted under Article 186 of the Constitution with the mission of upholding the independence of the judiciary and the independence of judges may be (…) relevant when assessing whether the judges it selects will be able to meet the requirements of independence and impartiality under Article 47 of the EU Charter of Fundamental Rights.31 This position was also upheld by the Court of Justice of the EU in its judgment of 3.03.2021 (C-824/18). 3. Independence of prosecutors in Poland in light of international standardsWhile the independence of judges and the judiciary in general originates in the fundamental right for persons to have a fair trial, the independence of prosecutors and the prosecution system does not have such a common standard.32 While judges should be independent, this concept is not fully applicable to the prosecutors; it is more accurate to speak of ‘autonomy’ rather than full-fledged ‘independence’ of the prosecution service.33 In the interests of ensuring consistency of prosecutorial acts with prosecutorial policy, a certain degree of hierarchical interference may be legitimate if combined with appropriate rules and guarantees.34 Moreover, the two principles mentioned (procedural independence and procedural hierarchy) are not mutually exclusive in their application, but they must be applied concertedly and harmoniously. It must be stressed that the major reference texts allow for systems where the prosecution service is not independent from the executive. Nonetheless, where such systems are in place, guarantees must be provided at the level of the individual case to ensure transparency concerning the given instructions.35In Poland, the Prosecutor General is ex officio the Minister of Justice, a position that results from statutory regulations (Art. 1 § 2 of the Act of 28 January 2016 on the Public Prosecutor’s Office, hereinafter: the Public Prosecutor’s Office Act),36 not contradicting the provisions of the Constitution,37 which does not specify whether the Minister of Justice is to be the Prosecutor General or not, leaving this issue to be regulated by the ordinary legislator.38 In view of this – as the Venice Commission aptly states – it is necessary to maintain a balance between, on the one hand, the protection of subordinate prosecutors from interference by the government, parliament, the police or the public and, on the other hand, the authority and responsibility of the general prosecutor for ensuring that they carry out their functions property.39 The Constitution of the Republic of Poland does not guarantee the independence of the prosecutor’s office, and this is criticised in the doctrine.40 The Committee of Ministers of the Council of Europe’s Recommendation Rec (2000) 19 sets out certain conditions that should be met where the prosecutor’s office is part of or subordinate to the executive:Where the public prosecution is part of or subordinate to the government, states should take effective measures to guarantee that:the nature and the scope of the powers of the government with respect to the public prosecution are established by law;government exercises its powers in a transparent way and in accordance with international treaties, national legislation and general principles of law;where government gives instructions of a general nature, such instructions must be in writing and published in an adequate way;where the government has the power to give instructions to prosecute a specific case, such instructions must carry with them adequate guarantees that transparency and equity are respected in accordance with national law, the government being under a duty, for example:to seek prior written advice from either the competent public prosecutor or the body that is carrying out the public prosecution;duly to explain its written instructions, especially when they deviate from the public prosecutor’s advices and to transmit them through the hierarchical channels;to see to it that, before the trial, the advice and the instructions become part of the file so that the other parties may take cognisance of it and make comments;public prosecutors remain free to submit to the court any legal arguments of their choice, even where they are under a duty to reflect in writing the instructions received;instructions not to prosecute in a specific case should, in principle, be prohibited. Should that not be the case, such instructions must remain exceptional and be subjected not only to the requirements indicated in paragraphs d. and e. above but also to an appropriate specific control with a view in particular to guaranteeing transparency.41Substantial charges cannot be brought against Poland’s implementation of points a–b of these recommendations. In contrast, the other recommendations are not being implemented in Poland.Indeed, the Minister of Justice/Prosecutor General is entitled to give instructions to prosecute a specific case (and often boasts in the media that he has exercised this right in a given case: Art. 34 § 1 of the Public Prosecutor’s Office Act). However, the content of these instructions is not public. Rather, it is placed in what is known as the prosecutor’s handwritten file and is inaccessible to either the parties, the court or the public (Art. 7 § 3 of the Public Prosecutor’s Office Act). Moreover, the Minister of Justice/Prosecutor General is not obliged to seek prior written advice from the competent public prosecutor or the body carrying out the public prosecution to explain their written instructions. Also, instructions to prosecute in a specific case are not subjected to an appropriate control with a view in particular to guarantee transparency. The statement does not alter the negative assessment of these arrangements that in principle, certain actions, inactions and acts of prosecutors may be challenged with the superior prosecutor, and these should be welcomed.42Should the public prosecutor disagree with an order concerning the content of a procedural action, he or she may request only that he or she be prevented from acting or participating in the case (Art. 7 § 4 of the Public Prosecutor’s Office Act). However, contrary to European recommendations,43 these orders are not subject to appeal. Moreover, the case assigned to the prosecutor may be transferred to the desk of another prosecutor in the same or another unit, and the law does not provide any criteria to guide such a decision.44 Instead, as is aptly pointed out, ‘Without such criteria, the removal of cases can be arbitrary. (…) The removal of cases from a prosecutor without criteria could be abused to assign a case to another prosecutor who is more willing to follow an illegal instruction. (…) The law should provide guarantees even against mere possibilities of abuse. There should be criteria for taking away cases from subordinate prosecutors’.45 Unfortunately, in Poland, these possibilities are abundantly explored. By introduction, it should be pointed out that in Poland there are four levels of hierarchy in prosecution organisational units: district prosecutors’ offices, district prosecutors’ offices, regional prosecutors’ offices and the National Public Prosecutor’s Office (Art. 1 § 3 of the Public Prosecutor’s Office Act). Each crime notification is first registered in the relevant district prosecutor’s office. Only then can it be transferred to a hierarchically higher organisational unit of the prosecutor’s office (the principle of devolution). Most prosecutors work in district prosecutors’ offices and handle more than 90% of cases. Due to the size of the district prosecutors’ offices, after the merger of the offices of the Minister of Justice and the Prosecutor General, it has not been possible for the Minister of Justice/Prosecutor General to make all prosecutors available. District prosecutors, therefore, enjoy relative independence. However, every case that the executive cares about is taken over to the district prosecutor’s office. In turn, only prosecutors obedient to the Minister of Justice are employed. They are also better paid and accustomed to carrying out orders from their superiors on even the most trivial decisions (e. g., whether to personally question a witness or have the police do it). Indeed, granting the possibility to transfer cases between prosecutors without regulating the criteria to be followed has threatened the independence of the prosecution service in Poland.Instructions of a general nature issued by the Prosecutor General are not adequately published. It was only a media leak in 2019 that revealed the ultra-rightist Minister of Justice/Prosecutor General had issued to prosecutors binding instructions with absurd content. For example, he forbade searches of bishops’ curies in cases of paedophilia and its concealment (in Poland there is a legal obligation to denounce this crime), invoking the principle of the jurisdictional autonomy of the Church, derived from the Concordat. Polish society received with indignation not only the content of these guidelines but also their secret nature.46Finally, a threat to the independence of prosecutors in Poland is the possibility of their compulsory transfers (Art. 106 § 1 of the Public Prosecutor’s Office Act), against which – contrary to the recommendations of the Venice Commission47 – there is no appeal. She aptly points out that ‘The issue of secondment always bears in it on the one side the necessity to overcome functional problems by allocating human resources efficiently – sometimes against the will of the concerned persons – in order to insure the fulfillment of the tasks required (…) and, on the other side, the legitimate interest of the persons involved and the avoidance of potential abuse. (…) [F]orced secondment is something to be looked at with care, because it can endanger the independence of the office holder’.48 Indeed, in Poland, if a prosecutor makes a decision that does not please the Minister of Justice/the Prosecutor General, he or she is immediately criminally seconded to a distant organisational unit.49In addition, the administrative positions in the Polish prosecutor’s office are not independent. Indeed, the appointees are both appointed and dismissed by the Prosecutor General. The law does not specify any criteria for him to foll