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Preliminary observations on the official visit to Poland (23-27 October 2017)

United Nations Special Rapporteur on the independence of judges and lawyers

Mr. Diego García-Sayán 

Warsaw, 27 October 2017 

Members of the press, ladies and gentlemen,

At the invitation of the Government, I spent the past week in Warsaw in my capacity as Special Rapporteur on the independence of judges and lawyers to assess the measures adopted by Poland to protect and promote the independence of the judiciary. In particular, the aim of my mission was to consider two issues that have raised serious concerns not only here Poland, but also in Brussels, Strasbourg and Geneva: the “constitutional crisis” and the ongoing reform of the judiciary.

During my visit, I met with high-ranking officials of the Ministry of Foreign Affairs, the Ministry of Justice, the Chancellery of the President of the Republic, the Sejm, the Senate, the National Council of the Judiciary, the General Prosecutor’s Office and the National Prosecution Council as well as active and retired judges of the Constitutional Tribunal, the Supreme Court, the Supreme Administrative Court, and the common court system.

In addition to meetings with the State authorities, I met with a wide range of civil society representatives, including the Commissioner for Human Rights (Ombudsman), non-governmental organizations, associations of judges, prosecutors and lawyers, and academics, as well as representatives of international and regional organisations.

I wish to express my gratitude to the Ministry of Foreign Affairs for its support in the preparation of the visit, and thank all authorities for their time and consideration. It is my desire to continue the dialogue initiated ahead of and during the visit. I also wish to thank the UN Information Centre in Warsaw for the invaluable support it provided before and during my visit. Finally, I would like to express my gratitude to all the judges, prosecutors, lawyers, academics and civil society activists who shared their views with me over the past week.

These are my preliminary observations and recommendations on the independence of the judiciary in Poland. They cover only a fraction of all issues that have been brought to my attention during this mission. I will further develop my assessment in my official report, which will be presented to the United Nations Human Rights Council in June 2018.

Before I delve into my initial assessment, please allow me to say a few words regarding my work as Special Rapporteur. As an independent expert appointed by the Human Rights Council, I am independent from any government or organisation and serve in my individual capacity, reporting directly to the Council. I am not employed by the United Nations, and the position I hold is pro bono.

As Special Rapporteur, I examine issues related to my mandate according to well-accepted sources of international human rights law, such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights. Both instruments guarantee the right to a fair hearing in judicial proceedings before “an independent and impartial tribunal established by law”.

The principle of an independent judiciary derives from the basic principles of the rule of law, in particular the principle of separation of powers. According to this principle, the executive, the legislature and the judiciary constitute three separate and independent branches of government. The Constitution, laws and policies of a country must ensure that the justice system is truly independent from other branches of the State.

In order to understand the situation in Poland today, we need to take into account not only laws, policies and regulations specifically related to the administration of justice, but also broader institutional aspects and public policies that may affect the independence of the judiciary and the separation of powers.

I want to emphasize one key point: an independent and impartial judiciary plays an essential role in protecting and promoting human rights and fundamental freedoms and upholding the rule of law. Courts ensure that victims of human rights violations have access to effective remedies, that perpetrators of human rights violations are brought to justice and that anyone suspected of a criminal offence receives a fair trial according to international standards. The judicial system is also an essential check and balance on the other branches of government, ensuring that laws adopted by the legislative power and the acts of the executive power comply with international human rights and the rule of law.

Today, the independence of the judicial system and other crucial democratic standards, like separation of powers, are under threat in Poland.

The power of the Government to undertake a reform the judiciary cannot be questioned. There is a general agreement that the judiciary needs to be modernized, strengthened and subject to some reforms, in order to address the several issues that currently affect it. During the past days, several of my interlocutors – including judges – referred to the length of judicial proceedings and the huge backlog of cases as the major problems affecting the Polish judiciary today. Other interlocutors have referred to cases of some judges lacking impartiality, cronyism and some episodes of corruption.

However, any reform of the judicial system should aim at improving its effectiveness, not at undermining its independence and legitimacy. Let me state this clearly: the reform undertaken by the Government, presented as a cure, appears to be worse than the disease affecting the Polish judiciary.

After the political elections held in October 2015, the ruling parliamentary majority, the Government, and the President of the Republic put in place a coordinated set of actions and adopted a vast array of legal amendments to the legislation that regulates the functioning of the judiciary. Each of these laws presents a number of concerns as to its compliance with international legal standards relating to the independence of the judicial system. But taken together, the various legislative acts and measures adopted or proposed by the executive and legislative appear to be parts of a policy that has the effect, if not the aim, of  severely undermining the independence of the judiciary and eroding the possibilities of checks and balances between crucial institutions of the State.

Judiciary under attack

Attacks to the independence and impartiality of the judiciary appear to be common on certain media, which at times have portrayed the judiciary as a “caste” and made instrumental use of few and isolated cases in which judges – and in one case, a retired judge who was removed from service because of his mental illness – had been involved in illicit activities to demonize the judiciary as a whole.

I am particularly concerned at a communication campaign launched by the Polish National Foundation, that in a number of TV commercials and billboards depict judges as “the enemy” of Polish people and an evil in Polish society. According to information I have received, the Foundation, which is funded by State-owned corporations, would have been established following initiatives of members of the majority party.

That is not acceptable in a democratic State governed by rule of law. The independent and impartiality of the judiciary is enshrined in the Polish Constitution, and it is the duty of all governmental and other institutions to respect and observe it. Any attack, threat or interference with the legitimate activities of the State institution in charge of upholding the rule of law is an attack on the State as a whole, and undermines the capacity of the judiciary to decide the matters before it impartially and in accordance with the law. If the judiciary is under threat, access to justice can no longer be guaranteed, and the very protection and promotion of human rights and fundamental freedoms come ultimately under threat. 

The constitutional crisis

The first victim of this campaign aimed at discrediting the authority of the judiciary has been the Polish Constitutional Tribunal. The Tribunal is still in place, and its functions – as set out in the Polish Constitution – have not been formally changed. The independence and the legitimacy of the Tribunal, however, have been seriously undermined by the dispute currently underway relating to its composition and the legality of its decision. A number of State institutions, including the National Council of the Judiciary and the Commissioner of Human Rights, currently refrain from submitting new legislative acts – some of which have extensive human rights implications – to its control. As a result, the Tribunal has lost its legitimacy to ensure an effective review of the constitutionality of legislative acts adopted by the legislator. This situation casts serious doubts over its capacity to protect constitutional principles and to uphold human rights and fundamental freedoms.

The “constitutional crisis” has been developing at a fast pace soon after the political elections of October 2015. It was born as a conflict of views between the party that had gained the majority in the elections and the outgoing governing political party over their right to appoint new constitutional judges. But it turned quickly turned into a major dispute over the “right” of the party winning the majority in political elections to promote a far-reaching reform of the composition and functioning of the Tribunal.

I am seriously concerned about the creeping politicization of this dispute over the composition of the Tribunal. I regret that the three judges legally appointed by the previous legislature in October 2015 have not been able to take up their function, while the three judges nominated by the new Sejm in December 2015 have in the meanwhile been sworn in by the President of the Republic. The participation of the so-called “December judges” in the proceedings of the Constitutional Tribunal casts serious doubts over the legitimacy of the Tribunal to discharge its essential role as guarantor of the Constitution.

I am also worried that some judgments handed down by the Tribunal have not been published in the Official Journal, while others have simply not been implemented by the Government, which claims to retain the power to check the lawfulness of the judgments of the Tribunal. This power, according to some Government officials, stems directly from the mandate that Polish people entrusted to them at the last election. It is their duty, in their opinion, to exercise an ultimate control on the legality of the Constitutional Tribunal decision, since they have a higher democratic legitimacy that judges by virtue of being elected.

This statement is highly problematic.

First of all, it constitutes a serious breach of principle of the independence of the judiciary. According to this principle, the judiciary has jurisdiction over all issues of a judicial nature.  In a democratic State, the Government and the Parliaments should respect and promote the independence of the judiciary, not undermine it. The fact of being elected does not give them any monopoly of legitimacy, nor does it grant them any right to exercise control over the court that, in accordance with the Constitution, guarantees appropriate checks and balances among the different State’s powers.

An ex post control by another State authority of the legality of the judgments adopted by the Tribunal is also inconsistent with the principle of separation of powers, as is the refusal to publish the judgments of the Tribunal. International law requires the legislative and executive powers to refrain from any inappropriate or unwarranted interference with the judicial process, and acknowledge that in no circumstance can final decisions by the courts be subject to revision by the executive. As the old adage goes, judicial decisions must be implemented, and not interpreted, by the other organs of the State.

I welcome the fact that many of the State officials I have met in the last days were supportive of the important role the Constitutional Tribunal plays in ensuring the supremacy of the Constitution. The de-legitimization of the Constitutional Tribunal unnecessarily polarizes Polish society and erodes the public trust not only in the Tribunal, but ultimately in the Government and the Parliament. All political forces should work together to strengthen the role of the Constitutional Tribunal as the ultimate guarantor of the rights of Polish citizens.

Any reform of the composition and functioning of the Tribunal should be the result of a fair, open and transparent process involving not only the parliamentary majority and the opposition, but also the judiciary, the Office of the Ombudsman and civil society actors. Any long-lasting solution to the constitutional situation that Poland is facing today should be firmly rooted on the principles of the independence of the judiciary and the separation of powers, and take into account previous rulings of the Constitutional Tribunal, such as those of 3 and 9 December 2015.

The reform of the judiciary

Let me now turn to the proposed reform of the judiciary.

Since the parliamentary elections, Polish authorities have adopted, or proposed, a number of legislative acts aimed at modifying the composition and functioning of a number of judicial institutions: Supreme Court, ordinary courts, the National Council of the Judiciary and the prosecution service. The stated goal of the reform is to improve the impartiality and effectiveness of judicial institutions. Taken together, these legislative acts pose a serious threat to the independence of the Polish judiciary and the separation of powers, and undermine the essential role of the judiciary in promoting and protecting human rights and upholding the rule of law.

Act on the Common Court Organisation

The reform of the organisation of the common court system, introduced in July 2017 and currently underway, is emblematic in this regard.

Some provisions of the new Act allow the Minister of Justice, who also serves as Prosecutor General, to dismiss presidents of the courts and appoint, during the first six months, new presidents of his choice without any need to explain the rationale behind his decision. No judicial review is available against a dismissal decision of the Minister of Justice. The National Council of the Judiciary would be able to block the dismissal, but only with a qualified majority.

This interference with the work of common courts and tribunals raises serious concerns in relation to the principles of independence of the judiciary and separation of powers. On the one hand, a president of the court responsible to deliver a judgment on a politically sensitive case may feel pressured to find in favour of the State authorities in order to minimise the risk of being dismissed. On the other, ordinary members of the court may be inclined in similar cases to uphold the Government position in order to improve their chance of becoming court president in the future. In both cases, the independence and impartiality of the judge risks being undermined; the perception of his/her independence and impartiality, however, is irremediably compromised.

Government authorities contend that court presidents only have responsibilities of administrative nature. However, this opinion is not shared by several members of the judiciary. In their capacity of court managers, presidents have a hierarchical position and important powers over other judges that allow them – for example – to transfer judges without their consent or to initiate disciplinary proceedings against individual judges. This means, in practice, that a Government-appointed president could theoretically interfere with the personal independence of other judges within the same court.

Another problem that was brought to my attention is the reduction of retirement age for female and male judges. Until now, female and male judges retired at the age of 67. The new Act on the Organisation of Common Courts introduces a lower age of retirement for female and male judges, who will retire at 60 and 65 years of age, respectively.

These provisions present serious concerns as to their compatibility with the principle of security of tenure, which provides that judges should have a guaranteed tenure until a mandatory retirement age. In order not to affect the principle of non-removability of judges, any decision to change the age of retirement should only be applicable to judges who take up their functions following the entry into force of the law, and not to active judges. If the Government intends to introduce these new requirements, appropriate guarantees should be developed to ensure the security of tenure of active judges, for example by providing the option of early retirement, instead of a new compulsory retirement age.

The power of the Minister of Justice to decide, on a case-to-case basis, the prolongation of the mandate of individual judges until the age of 70 is equally problematic, since it would allow the Minister to exert influence over individual judges, thereby undermining their independence.   

Taken together, these provisions will make it easier for the Minister of justice to exert pressure over court presidents, whose careers have now become dependent on maintaining good relationships with the executive power. 

Act on the Prosecution Service

I am seriously concerned at the recent amendments to the Act on the Prosecution Service, which merge the positions of the Minister of Justice and Prosecutor General and attribute new powers to the latter. In a few European countries, the prosecutor’s office forms part of the executive power and is subject to the authority of the Ministry of Justice. However, the attribution of extensive powers to the Prosecutor General/Minister of Justice without the establishment of corresponding safeguards risks undermining the principle of separation of powers, and exposing the prosecutors’ work to significant political influences that may undermine the independence of the prosecution service.

In assessing the independence and impartiality of prosecutors, it is important to examine both the structural independence of prosecution services and their operational independence and impartiality, or functional independence. A lack of autonomy and functional independence can erode the credibility of the prosecutorial authority and undermine public confidence in the justice system. In this context, the Polish authorities have a duty – in line with the Guidelines on the role of prosecutors – to ensure the autonomy and independence of the prosecution service, so as to allow prosecutors to carry out their functions without any political interference.

Law on the Supreme Court

I would like to say a few words on the law on the Supreme Court, which as you will recall was vetoed by the President of the Republic last July. A new draft has been presented by the President of the Republic at the end of September, and is currently being revised, according to some sources, by the President and the leader of the majority party.

The very fact that the text of such an important law is being discussed behind closed doors is a source of serious concern.

 Any legislation on the functioning of the supreme judicial organ of the country should be the subject of an open and transparent debate. In particular, the Court itself should be given an ample opportunity to make comments and suggestions on a piece of legislation which is going to have an impact on its functioning. Other relevant institutions, including the Commissioner for Human Rights and the National Council of the Judiciary, should also be invited to provide their views on the proposed legislation.

With regard to the content of the new law, it appears that the new draft addresses a number of the serious flaws that affected the previous one. Nevertheless, a number of provisions continue to pose serious threats to the independence of the judiciary and the separation of powers principle.

First of all, the information received concerning the reduction of mandatory age of retirement for Supreme Court judges would, if confirmed, constitute a flagrant breach of the principle of non-removability of judges. In practice, if this provision were to enter into force, 40 per cent of the members of the Court would be forced to retire within a three-month period.

The current President of the Court, whom I met earlier this week, would be the first victim of this provision, despite the fact that her six-year term is only set to expire in 2020.

Government officials argue that the provision on forced retirement is mitigated by the possibility granted to Supreme Court judges to remain on the bench with the approval of the President of the Republic (and subject to the presentation of a medical certificate proving they continue to be fit for work). I cannot support this view. By strengthening the role of the President of the Republic vis-à-vis the judges who have reached the new mandatory age of retirement, this provision would undermine the principle of independence of judges, which requires that judges be free from any interference, pressure or favour from their superiors.

Another problematic aspect of the draft law presented by President Duda relates to the possible creation of two new chambers of the Supreme Court, namely the Chamber of Extraordinary Control and Public Affairs and the Disciplinary Chamber. Both of these Chambers would need to be integrated by new magistrates if the change of the retirement age were maintained.

The first Chamber would be competent to hear three kinds of cases, all of which are likely to be politically charged: (i) cases concerning the validity of presidential, parliamentary and local elections, as well as referendums; (ii) cases concerning media, including the revocation of broadcast licences; and (iii) extra-ordinary complaints, a new mechanism which would allow selected individuals, including the Prosecutor General and members of the Parliament, to reopen consideration of cases adjudicated within the past twenty years with a final judgment. 

The Disciplinary Chamber would be responsible, as its name suggests, to hear disciplinary cases against judges, including Supreme Court judges, and other members of the legal profession.

If created, both chambers would raise a number of rule of law concerns, in particular with regard to the principles of independence of the judiciary, separation of powers and ne bis in idem. In addition, disciplinary proceedings before the new Disciplinary Chamber could be used, in the existing context, as a form of intimidation and harassment over judges who criticises the Governing party or its policies on judicial matters.

National Council of the Judiciary

According to the Constitution, the National Council of the Judiciary – composed of 25 members – is responsible to safeguard the independence of courts and judges. It plays an important role in appointing, promoting and transferring judges, and can request that disciplinary proceedings be brought against an individual judge.

A proposal to amend the Act on the National Council of the Judiciary was drafted by the Sejm in July, and vetoed by the President of the Republic, who presented his own draft at the end of last month. The main objective of this draft is to change the procedure for appointing the judge members of the National Council of the Judiciary, re-organise its internal structure and modify the procedure for selection of judges and trainee judges. The new Act would end the term of all fifteen judicial members currently serving in the Council, and provide to the Sejm the authority to select all judicial members of the Judicial Council, in addition the six parliamentary members and the seats reserved for the Minister of Justice and the individual appointed by the President of Poland.

Judicial councils play a fundamental role in safeguarding the independence of the judiciary. I have received the concern that this would allow the legislative to influence the selection of judges with the result of undue political interference in the overall administration of justice. Article 5 of the Draft Act provides that the mandate of the fifteen judges currently sitting on the Judicial Council shall be terminated 30 days after the entry into force of the Draft Act. This automatic termination based only on changes to legislation would directly interfere with the guarantees of independence enjoyed by this duly constituted constitutional body. The Constitution guarantees that the term to serve as judge member of the Council is four years; its abrupt termination by a legal provision violates the Constitution.

I have received preoccupying information on the refusal by the President of the Republic to appoint persons appropriately selected in 2016 by the National Council of the Judiciary. While legitimate reasons may eventually exist not to appoint a specific individual, the decision of the President, for instance, of 22 June 2016 to not appoint a complete group of candidates generates serious concern. The communication sent to the President of the Republic by the Council asking him to provide with the grounds for that refusal has not been responded.

Preliminary conclusions and recommendations

The independence of justice is under serious threat in Poland today.

I acknowledge that the reform and modernization of judicial institutions is a legitimate objective for any Government to pursue. However, I cannot but stress that the judicial reform that the Polish Government is putting in place to address the shortcomings currently affecting the Polish judicial system will, in the long run, have a long-lasting, adverse effect on the independence of its judicial system.

The current reform, undertaken by the governing majority in haste, and without proper consultation with the opposition, the judiciary and civil society actors, including the Office of the Ombudsman, risks hampering the capacity of judicial authorities to ensure checks and balances and protect and promote human rights.

The first victim of this unilateral approach is the Constitutional Tribunal, whose authority has been seriously undermined by the dispute currently underway relating to its composition and the legality of the some of its ruling. In such circumstances, the Tribunal is actually in no position to ensure an effective constitutional review of the acts adopted by the legislative authorities.

It is high time that all political forces commit to sit at the negotiating table and engage in good faith in a constructive dialogue aimed at restoring the authority of the Tribunal and its role as guarantor of the supremacy of the Constitution.

Any long-lasting solution to the constitutional situation that Poland is facing today should be firmly rooted on the principles of the independence of the judiciary and the separation of powers, and take into account previous rulings of the Constitutional Tribunal, such as those of 3 and 9 December 2015.

The same principles apply to the reform of the ordinary court system, the Supreme Court and the National Council of the Judiciary. The independence of the judiciary is enshrined in the Polish Constitution, and it is the duty of the Government and legislative authority to respect and protect this essential principle of rule of law. In accordance with the principle of separation of powers, the Government and the Parliament must refrain from any inappropriate or unwarranted interference with the judicial process, particularly in relation to the appointment, dismissal and promotion of members of the judiciary.

They must also ensure that any modification of the mandatory retirement age does not adversely impact the security of tenure of judges.

The way out of this critical moment is to promote a fair, open and transparent process involving not only the parliamentary majority and the opposition, but also the judiciary, the Office of the Ombudsman and civil society actors. Any reform of the judiciary should aim at strengthening, not at undermining, the independence of the justice system and its actors. The independence of the judiciary and the separation of powers must constitute the guiding principles of any such reform.

Thank you.