Marcin Szwed

⚖️🇵🇱🇪🇺 Out of complete blue, a new proposal for a draft law on resolving the issue of "neo-judges" - ones appointed/promoted with the participation of the politically captured National Council of Judiciary in Poland emerged today, prepared by a small team of law scholars from the University of Łódź. 1/

Quote from our published article by author Marcin Szwed: "At this time, the Tusk government cannot be fully blamed for failing to implement the ECtHR’s judgments. Nevertheless, some actions already taken raise questions about whether the government has a coherent plan for restoring the rule of law in accordance with European standards."

MARCIN SZWED (@marcinszwed.bsky.social) breaks down the political and stuctural hurdles blocking Poland’s compliance with ECtHR rulings on the rule of law.

👉 verfassungsblog.de/one-year-aft...

@democracyreporting.bsky.social

The draft constitutional amendment proposes a provision that could, at least theoretically, expand the powers of ordinary courts to conduct so-called dispersed judicial review. While I find the proposed provision flawed, the idea itself is certainly intriguing.

Still, the truth is that resolving the crisis surrounding the CT would be very challenging, and restoring its authority and public trust to it - even more so. One might even wonder whether the latter is possible at all and whether alternative solutions should be considered.

Notably, some voices in the Polish legal discourse suggest dissolving the entire CT by a mere parliamentary resolution, claiming it is "infected with illegality." However, the VC finds even terminating judges' terms through a constitutional amendment impermissible.

As in its previous opinion on so-called neo-judges (www.venice.coe.int/webforms/doc..., the VC firmly rejected the idea that an extraordinary situation stemming from a constitutional crisis could justify unlawful actions.

I think that the approach taken by the VC in this opinion is well reflected in this quote: "Respect for the rule of law presupposes a willingness to abide by the rules of the game, however arduous these rules may be, and to work within the constitutional system to change it from within."

However, the VC believes such actions will not resolve the crisis but could set negative precedents for future abuse.

In the last part of the opinion, the Commission noted that the crisis could lead to further steps "crippling" the CT, such as delaying election of judges for vacant seats (and indeed the ruling coalition announced that they won't elect new judges until the situation in the CT is fixed).

The VC positively asssessed some other changes provided in the laws concerning e.g. procedure for election of the CT judges, disciplinary proceedings etc. It also made some remarks and recommendations, particularly concerning the draft constitutional amendment which could be improved.

Recent months have shown that the Tribunal might try to block further government actions. In fact, even a law fully aligning with the VC’s recommendations aimed at restoring order in the CT would likely be challenged by the Tribunal.

From a legal perspective, this is undoubtedly true, but politically it may be difficult for the government to accept. Among CT judges are former prominent PiS politicians whose impartiality may be questioned.

According to the VC, "allowing the government to control the legal force of a judgment would <egregiously violate the independence of the court and the rule of law>".

In this context, the VC also criticized the government’s failure to publish all CT rulings. Judgments issued by improper panels could be published with a note on possible reopening, but all others should be published normally.

Still, the Commission acknowledged the need to address the rulings’ effects. It considered reopening proceedings a better solution than invalidating everything.

That's why I believe that before drafting a law, we should gather relevant data and choose the best option to solve the issue, not escalate chaos. Unfortunately, some proposals in Poland seem driven solely by moral considerations, without a thorough legal analysis.

legislative process! Restoration of the RoL involves adoption of highly complicated laws which may produce various consequences, sometimes problematic from the perspective of the legal certainty. Therefore, the authorities must be aware of the scale of problems and prepare for them.

I participate in various conferences in Poland and abroad where we discuss about all this "big issues" such as whether you have to fully comply with the Rule of Law when you want to restore the Rule of Law etc. And these are important questions but equally important is to ensure high quality of

By the way - I think It’s concerning that the only impact analysis available concerning this problem was prepared by an NGO over a year before the act’s adoption... It should be done by the Government/Parliament before the adoption of such law.

The report is available here hfhr.pl/upload/2023/.... I also published short article about this problem on the Verfassungsblog: verfassungsblog.de/to-void-or-n...

In the report we show that invalidation (with retroactive force!) of all rulings issued by the CT in wrong panels (there are around 100 of them) would lead to unpredictable results.

The Commission was skeptical about that, citing potential negative consequences for legal certainty. In this regard the VC referred to a report by the Helsinki Foundation for Human Rights, which I had the opportunity to contribute to.

Then the VC moved to the most controversial part of the reform, that is the regulation of the status of the CT judgments issued in panels involving 3 unlawfully elected judges. One of the acts mentioned above provides that such rulings would be declared as devoid of legal effects.

Still, realistically speaking, there is no chance that the constitutional amendment will be adopted, as the current ruling coalition lacks the required two-thirds supermajority in Parliament. Therefore, this issue remains purely hypothetical.

Moreover, such a radical move is unnecessary, as several judges’ terms will expire in the next few years anyway, allowing for new appointments and improving the CT’s pluralism.

The draft constitutional amendment provides that term of office all incumbent judges would be terminated. The Commission criticized these plans. Since 12 judges were lawfully appointed, there is no basis for this. It warned that such a precedent might be exploited in the future.

And just few days ago the President Andrzej Duda appointed new CT President - Mr. Bogdan Święczkowski who was a former prosecutor and undersecretary of state in MoJ under Zbigniew Ziobro. It’s likely he won’t be inclined to challenge the status of individuals appointed by PiS.

According to the VC, a provision should be introduced to remove the "double judges" from all cases and bar them from being assigned new ones. However, would this work in practice? The problem is that, as the VC itself acknowledged, case assignment is controlled by the CT President.

Therefore, the Commission not only agreed that so-called "double judges" were unlawfully appointed but also criticized the drafts for failing to explicitly state that these individuals cannot adjudicate.

The Commission noted firstly that implementing ECtHR judgments would require removing 3 irregularly appointed judges from adjudication. It criticized the lack of any provision in the acts directly addressing this issue.