Judiciary of Poland
The courts (sądy), designated by the Constitution as those exercising the administration of justice (wymiar sprawiedliwości), are the bodies that review the vast majority of cases, with the exception of those specifically assigned to the two tribunals (trybunały).
Changes to the judiciary carried out from 2015 by the ruling United Right coalition, ostensibly aimed at remedying these handicaps, caused much controversy and provoked an ongoing constitutional crisis.
The legitimacy of the Disciplinary Chamber (fully appointed by a partisan-controlled National Council of the Judiciary) has been in particular widely challenged and the European Court of Justice ordered its suspension.
[58] It is hard to refer top politicians to the State Tribunal due to the supermajority requirements: the Constitution provides that a 2/3 majority in the National Assembly (a body formed on rare occasions by all Sejm and Senate members sitting together in a joint session) is needed to vote in favour of impeachment of the president of Poland, and that only a 3/5 majority in the Sejm may indict the prime minister of Poland or the members of his cabinet; an additional complication is the inherently political nature of the way the Constitution allows to refer a person to the State Tribunal.
[107] In case law, the administrative courts have repeatedly found lack of jurisdiction in respect of the presidential appointments of judges or their refusal,[108] and the Constitutional Tribunal ruled consistently that these decisions are not subject to judicial review.
They may also be sent on leave in case of the changes in the jurisdiction of the courts, including their abolishment, or if the judge is physically or mentally unable to perform their duties (article 181 section 3 and 5 of the Constitution).
[112] Exceptions include orders to detain a suspect during pre-trial proceedings, review of a decision to decline to take up the case or discontinue it, and family law matters.
Article 199 of the Constitution says that 18 of them (including two vice-chairpersons and 16 ordinary members) are to be elected by a simple majority by the Sejm for the duration of its term, while the position of the Chairperson of the State Tribunal is held ex officio by the incumbent First President of the Supreme Court).
Several laws as well as the Constitution set the criteria which the candidates must meet in order to serve in the bodies exercising judicial power of the Polish state.
Professors and habilitated doctors of law at a Polish tertiary education facility may seek nomination to any of the judicial positions (assessors as well as judges), provided they also pass the criteria unrelated to necessary experience.
In 2013, the Centre for Public Opinion Research (CBOS), a state-run pollster, found that by far the most common complaint about the Polish justice system was the length of court proceedings.
[154] The length of proceedings caused cases such as the murder of Grzegorz Przemyk by Communist authorities in 1983 to be closed inconclusively as the indictments went past the prescriptive period.
[155] According to a 2020 survey of Polish lawyers and attorneys at law, 95.8% of those professionals said that the excessive length of proceedings had a systemic character;[156] they also said that problems occurred both on the judicial and the prosecutorial side.
Krystyna Daniel connected this slump to the general distrust of statutes and government organs, lengthy proceedings and media criticism (mostly about controversial court cases or irregularities in the judiciary).
As for the Constitutional Tribunal, disapproval spiked following the 2015 crisis and further went up following its ruling restricting abortion, but criticism is concentrated among voters who are left-leaning, less religious and opposing the Law and Justice (PiS) party.
[163] The diminution of trust in the Tribunal, along with worsening efficiency, is widely considered to be the reason behind lower numbers of constitutional law verdicts since 2015 and requests for legal guidance from the courts.
[173] The 2022 European Union Rule of Law report notes that only 24% of the general population has a good opinion of the independence of the court system, but only 19% of companies surveyed approved of Polish judiciary, and the numbers were steadily decreasing.
[183] Another issue of concern is the usage of the so-called testimony-mining custody [pl], whereby a suspect is held in repeatedly prolonged detention in order to be compelled either to confess or to testify against other defendants, a practice officially illegal nevertheless still undertaken under formal disguise of various pretexts such as safeguarding the undistorted course of a proceeding;[184] the Helsinki Foundation of Human Rights noted that an average pretrial detention lasted for more than a year and, in its opinion, was overused relative to the less invasive preventative measures such as bail and police supervision.
[190] It also promised to remedy long-standing problems of slowness and red tape, due to which the media favourable to the current government portrayed the system as out-of-touch and self-interested.
[194] The Constitutional Tribunal (TK), like other courts with appointments made by political bodies, experienced some form of bias in rulings, but it was not very different from the situation in the analogical institutions in other countries.
[195] Since 2015, however, the TK has been stuffed with appointees favourable to the currently ruling party, including former politicians of PiS or friends of its leaders,[196][197] leading scholars to see it as a captured judicial institution[198][199][200] subservient to the Law and Justice government.
A sting operation by Gazeta Polska Codziennie triggered a political scandal in 2012 by exposing the fact that a judge of a court in Gdańsk aquiesced easily to procedural demands made in relation to a particular case during a phone call by a journalist pretending to be a senior officer of the Chancellery of the Prime Minister.
[217] Some of the most vocal opponents of the changes to the judiciary were targeted by the state prosecution, and disciplinary proceedings were abused in an attempt to silence critics who, for example, sent preliminary requests to the European Court of Justice asking to assess judicial independence.
[227] The 2021 rule of law report by the European Commission said that the mere prospect of being prosecuted in a judicial body having no guarantees of independence had created a chilling effect for judges.
The consensus of scholars is that a change to the term of some of the KRS's members ran afoul of the Constitution,[96][231][232] though Mateusz Radajewski wrote that the Tribunal left the lawmakers with no better choice.
[232] Another controversial provision was to lower the retirement age to 65 (thus removing about 40% of the Supreme Court members), with tying the prolongation of justices to the President's consent, but the ECJ ruled it to be illegal in light of European Union law.
The Supreme Court declared the two new chambers, the Disciplinary and that of Extraordinary Control and Public Affairs, illegal, and found the new KRS "systemically not independent of political interest".
[248] In an attempt to comply with the ruling, a new bill was adopted that changes the method of appointment, namely by letting the President choose 11 judges for a five-year term among the 33 that the Supreme Court proposes,[14] but the law is seen as superficial and not resolving the underlying issue of political manipulation of disciplinary proceedings.
[251] In addition to that, several judges and lawyers sued in the ECHR to declare the Supreme Court chambers, with the controlling majority being appointed by the new body, to be incompatible with the European Convention of Human Rights, and thus invalidate its rulings.
[147] The European Court of Justice ruled that the system of purely arbitrary delegation of judges, where the minister of justice is at the same time the top prosecutor, violates European Union law;[254] the Polish Ombudsman also argued that the unlimited powers in issuing delegations ran afoul of several articles of the Constitution, including by infringement on the President's prerogative to appoint judges to the positions the President decides.
