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There have been a lot of talks recently about the erosion of judicial independence in Poland after the new government has decided to change the way judges are nominated. However to me (as a Czech resident) this criticism seems a bit strange since in the Czech Republic judges have always been nominated directly by the executive (subject to approval by the Parliament) and therefore the judicial system has never really been independent in the first place.

How does the new situation in Poland compare to the situations in other EU countries? Is it really true that judges are usually independent from the Executive and the Legislative branches of the government?

JonathanReez
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  • You don't want judges to be completely independent of the other branches. If judges can declare laws unconstitutional at will and impose - or block - policy decisions on the Executive branch with their verdicts, you're no longer living in a democracy but in a oligarchy. – Sjoerd Jul 22 '17 at 12:48
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    Notably, unlike the U.S. and U.K., the pool of people from whom judges can be appointed in Poland to the Poland Supreme Court is limited to people with at least 12 years experience in the next lower court of appeals (regional courts). So, in some ways there is still less discretion for political appointments in Poland than in some other countries, going forward. – ohwilleke Jul 25 '17 at 00:18
  • @Sjoerd That's different though. Since you could always not pay judges well. Considering they don't get to set their own income... – jjack Dec 20 '17 at 12:58

3 Answers3

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There's a key difference:

In the Czech Republic, judges are appointed for life and cannot be revoked. Once appointed they can go rabid against the Executive and Legislative branches of government if the situation calls it. (EU countries all have a similarly independent Judiciary branch, whereby Judges cannot readily be dismissed nor can they have their salary slashed on a whim.)

By contrast the Polish Justice Ministry would be able to dismiss judges if the reform passes, i.e. the Executive branch of government would be able to keep the Judiciary on a tight leash.

Further reading on Judicial independence.

Denis de Bernardy
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    To illustrate nor can they have their salary slashed on a whim: several years ago, Czech government (due to ongoing economic crisis) attempted to cut salaries of most officials paid from public budget, including judges. The Constitutional Court deemed this unconsitutional, and revoked the part of the law that applied to the judiciary. – Emil Jeřábek Jul 21 '17 at 13:37
  • Article 82 of czech constitution: (2) A judge may not be recalled or transferred to another court against his will; exceptions, ensuing in particular from disciplinary liability, shall be specified by law." So a judge can be recalled. –  Jan 09 '18 at 13:43
  • " the Polish Justice Ministry would be able to dismiss judges " where are your sources? Don't be ridiculous I asked for sources and you pretend you don't know what I am asking. –  Jan 09 '18 at 13:44
  • @Tlen: Per your quote, in Czech Republic a judge can only be recalled if dismissed by his peers - the executive or legislative branch can't dictate what it wants. As to Poland's case it's all over the news, e.g. https://www.theguardian.com/world/2017/dec/08/polish-mps-pass-supreme-court-bill-criticised-as-grave-threat - it's about a reform that will give the ruling party control of the (currently judiciary controlled) committee in charge of appointing judges. – Denis de Bernardy Jan 09 '18 at 14:18
  • still there is no quote saying that Polish Justice Ministry would be able to dismiss judges. In Germany e.g. ruling party is in charge of committee that appoints judges. In czech repuplic "Article 93: (1) Judge shall be appointed for life by the President of the Republic. " –  Jan 09 '18 at 14:54
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    @Tlen: you're welcome to post your own answer and downvote this one if it's not up to your standards. (Or better yet, you're welcome to edit a satisfactory source in. There are plenty in the various discussions you triggered on the answers.) – Denis de Bernardy Jan 11 '18 at 09:22
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According to the National Law Review there are several major changes, including the following:

Increasing the number of judges and reducing their retirement age – The number of the judges of the Supreme Court will be increased from the current 81 sitting judges to at least 120. The current retirement age of 72 will be reduced to 65. The right of a judge to continue to be active after the retirement age after providing evidence of good health is limited to judges who receive the consent of Poland’s President to remain active. Because approximately 30 of the current 81 judges are above the age of 65, these two changes will mean that a new majority of judges on the Supreme Court will need to be appointed.

Changes to the method of appointing judges – Judges of the Supreme Court will be appointed by Poland’s President, following their nomination by the National Council of the Judiciary. In separate legislation, the parliament has changed the method of electing members of the National Council of the Judiciary. Before, a majority of the members of this council were judges chosen from assemblies representing various levels of the judiciary. Now, Poland’s Sejm (the lower chamber of the parliament), will have the right to choose 15 members of the council – a majority — from among Polish judges, thereby ending the dominance by members of the judiciary to nominate judges to the Supreme Court.

This means that now not only a majority of the Supreme Court judges will have to be appointed, but also that the Sejm being able to replace the majority of the National Council of the Judiciary means that (indirectly) the PiS can appoint the majority of the Supreme Court with judges that are PiS-friendly.

Note that it is not unusual in Western countries that the legislative can appoint judges (although this has been repeatedly critized), so this alone is not remarkable.

But, as Denis de Bernardy already stated in his answer, judges typically are appointed by lifetime, which makes it virtually impossible for a government to install only judges suitable to them. By contrast, the PiS is now able to install a majority of judges that suits them - and is able to fire them again when deemed necessary. This severely limits the independence of the Supreme Court and thus violates the separation of powers.

Note that it is not one aspect alone that is the problem, but the combination of all the aspects. You may find each of the aspects (legislative nominating the judges, executive being able to fire judges, judges not nominated for lifetime etc.) in some democratic states, but not all at one.

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Thern
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  • "judges typically are appointed by lifetime" in Germany "The judges are elected for a 12-year term, but they must retire upon reaching the age of 68" https://en.wikipedia.org/wiki/Federal_Constitutional_Court –  Dec 21 '17 at 07:00
  • "is able to fire them again when deemed necessary", " executive being able to fire judges" provide some sources German. –  Dec 21 '17 at 07:07
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    @Tlen It is difficult to provide you with sources as you have dismissed journalistic sources and experts as opinion-based and probably will also do so with wiki-based sources. I found this here: www.hfhr.pl/wp-content/uploads/2017/12/New-threats-to-the-rule-of-law-brief-12-2017.pdf But I am sure you will dismiss it as propaganda as well. There is a new disciplinary chamber which can be filled by the National Council (PiS controlled), and the president can alone decide if judges older than 65 may stay in office, making it possible to "clean" the court now at will. – Thern Dec 21 '17 at 13:09
  • clean the court from old judges, those who started career during the totalitarian regime. What is wrong with that? My uncle was studying law during those times, he wanted to be a lawyer, but when looking for job he was asked "are you member of socialist party" so he didn't become a lawyer. He gave up on opportunity to be part of the regime. Germans retired the east german judges after the unification and today retire judges when they reach retirement age. Disciplinary chamber is nothing extraordinary, if the german puppet - Tusk was implementing the change the Germans would not object. –  Jan 01 '18 at 17:23
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    @Tlen To put it bluntly: The apprehension is that the new judges are the forefront of a new totalitarian regime that "cleans" the country not only from the old totalitarian influences (which comes a bit late after nearly 40 years) but from anything that is not in line with the PiS ideology. They at least have the ardent supporters that will buy anything if you just can remotely connect it to an obscure German influence. Especially in Germany, we know this procedure very well from two dictatorships in the last century. But well, you are free to learn it the hard way. – Thern Jan 07 '18 at 19:38
  • It is never too late to remove the ties with the former dictatorship supported by Germany. In eastern Germany this had been done, judges were removed. "but from anything that is not in line with the PiS ideology", it's totally opposite. PiS are not forefront of totalitarian regime. They just aren't left winged, they are catholic and conservative and liberal elites can't stand it. In 2014 in the elections in Poland there was 17% invalid votes. The ruling party got 8% more votes that reported by exit polls. Unusual, but no on cared in Germany. Why? because the elections were 'won'? –  Jan 08 '18 at 13:39
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    @Tlen The former dictatorship was opposed by West Germany since it was on the 'wrong' side of the iron curtain (why should a NATO state support a WP state against a pro-Western opposition?), and East Germany was a Sovjet puppet state at that time. This is not a question of left or conservative, but of wrong and right, and you put up one plain wrong assumption after the other. I will not deny that there is a certain bias that views PiS more critical than PO (or Trump more critical than Obama), but even then much of what PiS is doing reminds more of Erdogan or Putin than of democratic parties. – Thern Jan 08 '18 at 14:14
  • doing what? setting a retirement age for judges? that is the only think you could find. There is nothing else. Kohl retired all eastern german judges and it was fine. –  Jan 08 '18 at 14:18
  • also German, when in december 1981 military dictatorship sent tanks against own citizens, Helmut Shmidt, the chancellor of Germany said "Ich bedaure, dass dies Nun notwendig war". Die Zeit wrote "Good luck general [the military dictator]". Germans were on the side of military dictatorship and now they are supporting the judges who were sentencing back then, the members of democratic opposition to jail time (Yes, they are on supreme court today). –  Jan 08 '18 at 14:23
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    @Tlen Comments are too short for detailing, so please read my answer again to see that it is much more than than just setting a retirement age. The combination of all methods allows a sweep of the majority of judges at one point in time - something typically done at the beginning of dictatorships. This is different from East Germany, where the state - and with it its laws - ceased to exist. (And by the way, many eastern Germans indeed feel they have been sort of "colonized" by the western part after the reunion, so even if retiring judges was comprehensible, it did induce a problem.) – Thern Jan 08 '18 at 15:17
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    @Tlen Moreover, there have been hundreds of articles at that time praising Solidarnosc, chancellor Schmidt shortly before supported the NATO Double-track decision, and his quote is a remorse that only the law of war could prevent the Sovjets from marching in. Schmidt also said "Ich stehe mit ganzem Herzen auf der Seite der Arbeiter" ("I wholeheartedly am on the side of the workingmen"). Deriving from this that "Germans were on the side of military dictatorship" is an utter contortion of facts. They were diplomatically careful because they feared a confrontation on German soil, not more. – Thern Jan 08 '18 at 15:29
  • Socialist Poland also ceased to exist and yet the judges who In the socialist legal system were tools of the state, dedicated to punishment of its enemies were all pardoned. The change is Poland is simple, the retirement age was change to 65. Again the point it, if some other left winged liberal government did that, it would have been fine. See 2014 elections 17% invalid votes in a country with 99.9% literacy rate. Ruling party gets 8% more votes than showed in any poll and no one in Germany cried about dictatorship, why? Because german puppet was in power. –  Jan 08 '18 at 15:45
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    @Tlen Yes but there was no other part of the world where Polish judges for the new system existed. This was the same situation as after the breakdown of the Nazi regime, where most judges (except some notorious figures like Freisler) stayed in place simply because there were no judges educated in the new German Grundgesetz and you had to take the judges that were there. And a "cleaning" of "socialist" judges decades later is so obviously a fake argument that it is astonishing that anyone could fall to this. Poland obviously is absolutely not in danger of becoming communist again. – Thern Jan 08 '18 at 16:08
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    @Tlen And I am tired about your whataboutism. Nothing gets better because someone else might have done something that might seem remotely similar. It is a nice way to ignore arguments and attack the opponent instead, but it is cheap, unconvincing, and just proves that the own arguments are obviously moot. And since you keep ignoring my main point - that the combination of all measures allows for a cleaning of the majority of the justice system which is a typical start for dictatorships - any discussion is fruitless. Go on finding some things some Germans did wrong and be happy with that. – Thern Jan 08 '18 at 16:11
  • "Poland obviously is absolutely not in danger of becoming communist again." Poland is for 29 years stuck with corrupted judiciary, because it was composed of corrupted people. After fall of communism there was no democratic control over judiciary. Do you believe that people that were tool of socialist dictatorship would overnight change? They haven't and today democratic elected government will help the transition. How in your opinion they should fight the corruption in judiciary if there were no tools. –  Jan 09 '18 at 13:55
  • " PiS is now able to install a majority of judges that suits them - and is able to fire them again when deemed necessary." please provide sources of your lies –  Jan 09 '18 at 13:56
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    No use to discuss with fanatics. – Thern Jan 11 '18 at 11:39
  • someone asks for sources, what a fanatic! –  Jan 11 '18 at 11:40
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    I provided a source, you ignored most of it and instead talk of an evil German conspiration to subjugate Poland. I don't see how we get on from here. I will not remove an answer simply because it doesn't fit in your anti-German world view. Let me just say one thing, from German historical experience: The overthrow of democracies always needed supporters that could be fed with anything as long as it was claimed that this would fight the overpowered evil enemy. Even an "anti-fascist border wall" that mysteriously had the mines on the wrong side. – Thern Jan 11 '18 at 12:06
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Compared to Hungary, it's at par now. Both countries took serious steps to eliminate judicial independence and ensure the undisturbed corruption of the judiciary.

In Hungary the courts are already working as arbitrary popular tribunals. The judges are formally trained, but they only need a single year of experience as any kind of government official to be appointed and accepted. Even a criminal past is not a barrier. As a result it has recently happened that the Constitutional Court had to issue a decree reminding the judges that there are statutory laws governing their decisions, so they can't just define "justice" as they feel like.

I don't know about Poland, but both countries are increasingly disrespecting fundamental legal standards, in the name of "eliminating crime". Both countries have around 98% conviction rate, which means if you're charged with a crime, you have a meager 2% chance to be declared innocent or the case dropped against you for any other reason (ie. because you died or you're mentally insane). This is about 20-30% more than the European, US or Canadian rates. What do you think is more likely, the Hungarian law enforcement being that much efficient, or are they simply stuffing the prisons with innocents?

profugus anonymus
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