European association of judges statement concerning two acts on judiciary reform

The European Association of Judges deeply regrets the decision of the President of the Republic of Poland, Mr. Andrzej Duda, to sign into law the two bills approved in recent days by both houses of the Polish Parliament.

The new legislation undermines the independence of the courts and the independence of the judges and leads to a politicization of the judiciary.

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2017 07 24 ECLA letter to President of Poland on Judiciary Reform

Your Excellency

I am writing to you on behalf of the European Company Lawyers Association, representing over 40.000 company lawyers throughout Europe, to express our deep concerns over the potential impact of the independence of the judiciary and the legal profession in Poland of the recently adopted parliamentary Act of the National Council of the Judiciary and the Act amending the Law on Common Courts Organization.

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This is a response of Iustitia to the "informational materials" handed out by PM Morawiecki to foreign journalists on a press meeting on January 10th, 2018. The materials originally included the EC recommendations along with the response of the government. We follow the original order of statements in the PM's document and we added sections including our responses describing factual situation.





Recommendation EC 2.1.1(6)

“due to the lowering of the retirement age all new [Supreme Court] judges will be appointed by the President of the Republic on the recommendation of the newly composed National Council for the Judiciary, which will be largely dominated by the political appointees.


PL government position

The Council will still be dominated by judges (17 - as compared to 8 non-judges). They will be appointed by the Parliament by a 3/5 majority for a 4-year term, and are irrevocable both from the Council and their judicial mandates. There is no mechanism that would al low either the Parliament or the government to effectively enforce that the Council appoints specific judges to the Supreme Court.

Other public officers elected by the Parliament, such as the Ombudsman, Constitutional Tribunal Judges, Supreme Audit Office President are also political appointees in this meaning - and they enjoy full independence from other branches of power; members of National Judiciary Council are enjoying it as well and will continue to do so, as new law provides no regulations that would pressure them to act at Parliament's  will after they are elected.



Response from IUSTITIA - Association of Polish Judges

 Lowering the retirement age for Supreme Court judges will result in retirement of 40% of acting judges in the court. The judges may apply for extension of the service beyond the retirement age, but this mechanism raises many questions of constitutional nature.

At the same time, the creation of new chambers in Supreme Court – Disciplinary Chamber and Chamber of Extraordinary Control and Public Matters Chamber, will force the increase of the number of Supreme Court judges from 80 to 120. The vacancies and newly created posts will be manned by the judges nominated by National Judiciary Council. The latter in its new form is indeed a political body which we will discuss further in this document.

Minister of Justice will also directly second judges from all common courts. These direct nominees of the Minister may take up to 30% of Supreme Court’s posts. Of course the new law does not stipulate any conditions to be fulfilled by seconded  judges.


It is important to note, that the new chambers will be populated exclusively by the new Supreme Court judges nominated by new National Judicial Council.

Even more important is the fact, that new law transferred (from the Chamber of Labor and Social Security to new Chamber, populated with only new judges) the responsibility for dealing with: electoral complaints, complaints related to country-wide referendum, constitutional referendum, approval of the elections and referendum, other public law matters, including competition protection law, energy regulation, telecommunication and railroad transport and appeals from the decision of the president of the National Council of Radio and Television. 

There is no reference to this rearrangement in the justification to the new law.

And the same law assumes that the executive power will have total control over the personnel and management of the Supreme Court in the transitional period (art. 11 § 4).


Polish Prime Minister Morawiecki:

There was no revolution after 1989 (the fall of communism in Poland). There was a transformation ... On the one hand, the post-communists maintained real power in the country. I was myself often facing the real brutality of the communist regime in the 1980s and saw the same judges, the same faces, in the 90s and 2000., actually at the top of the structure of the judiciary. In judiciary, politics, executive power, business ... even today if one looks at the resumes of the CEOs of key private companies, they come from communist times. The richest 100 people in Poland, probably 90% of them, maybe 80 % ... are communist secret service officers, sometimes brutal murderers of my brothers from the 80s, or collaborators of the comrades from the Communist Party.”


It is incomprehensible to combine judges with the business community or the top 100 richest people in Poland. The Supreme Court after 1990 was one of the most screened institutions. In 1990 the term of office of all Supreme Court judges nominated in times of communism expired and its entire composition was reestablished with the participation of the newly created (by Solidarity government) National Judicial Council. The new composition included only 22 judges of the previous Supreme Court, the most outstanding, credible and uncompromised:

  • 11 judges out of the total number of 31 remained in the Civil Chamber,
  • 3 judges from the total number of 47 remained in the Criminal Chamber,
  • 3 judges from the total number of 14 remained in the Chamber of Administration, Labour and Social Insurance,
  • 5 judges from the total number of 19 remained in the Military Chamber.

That means that 98 judges (81% of total number of all Supreme Court  judges) have been "verified". So harsh, thorough and effective "verification" probably did not occur in the early 90s, in any environment, body or professional group in  Poland.

In present Supreme Court, there are only few judges presiding, who held the post during the martial law, but none of them can be accused of any kind of misbehaviour at that time. If this is the case, then current authority should perform an individual assessment rather than total political cleansing. (this is also the assessment of Professor Adam Strzembosz, the icon of the Polish judiciary and the First President of the Supreme Court in 1990-1998,,75398,22936039,sztrzemsz-ze-sedzieach-sad-najwyzszego-wachowali- Aug-przyzwoicie.html

Under the new law the legendary figures defending human rights during communist regime in Poland, who now serve in Supreme Court (such as, for example, Stanisław Zabłocki – defender of opposition activists in the communist era, Józef Iwulski - Solidarity's court activist in the 1980s, and many others, meritorious in actions for the observance of human rights) will be forced to retire prematurely.

[Meanwhile, the Parliament dominated by PM’s party, designates Stanisław Piotrowicz as a Chairman of the Parliamentary Committee on Justice and Human Rights. Ironically, Stanisław Piotrowicz is a former communist prosecutor and member of the Polish communist party, who persecuted oppositionists and for his loyalty received the Bronze Cross for Valor from communist government, he is now leading the “reforms” devastating Polish judiciary.

Besides, it was the current ruling party that promoted a decade ago one of those few “evil” judges involved in the trials against oppositionists (in 2005 - 2007, when current ruling party was in power, the government of Prime Minister Jarosław Kaczyński nominated as a deputy minister of justice a communist judge Andrzej Kryże, a judge who administered jail penalties for oppositionists organizing celebrations of the Independence Day in ‘80s).  There are documented cases where the Minister of Justice - under applicable law - refuses (without any justification) to accept the extension of the post to judges who have turned 60 (recently reduced retirement age of 60) and agrees to extend a post to a judge who was an employee of the communist ministry of justice in 80’s, during martial law.

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The Resolution of the Congress of Polish Lawyers

The Resolution of the Congress of Polish Lawyers

The priority of the judiciary in a 21st century democratic state based upon the rule of law should be ensuring the full right to fair trial, as well as effective and swift proceedings.

The judiciary in the 21st century should be citizen-friendly – simple and accessible.

The mission of an independent judge in the 21st century should be administering justice through deciding and resolving disputes, with all due diligence regarding the rights of the citizens stipulated in the Constitution and EU law.

The proper reform of the judiciary in the 21st century requires opening a public debate on three basic issues:

- first, the organisation of the judiciary ensuring effective legal protection;

- second, the simplification of the procedures and establishing institutions working towards ensuring swift court proceedings;

- third, ensuring the independent and transparent judiciary as a prerequisite for independent rulings by individual judges.

It is necessary to involve in the legislation process the social capital that is the intellectual potential behind the roughly 100 000 lawyers in Poland with their representative bodies and associations.

A commission needs to be appointed comprised of representatives of various legal professions. Its first task should be drawing up drafts and/or bills to amend acts regarding the matters discussed during the Congress and submitting them to entities with legislative powers.

We hereby appeal for putting an end to, and avoiding in the future, the hostility expressed in the debates between the worlds of politics and law. We wish to act together, not against one another, with a view to the common good that is a stable, democratic state based upon the rule of law and meant to serve its citizens.