The Battle for Judicial Independence in Poland, 2017-2022

Abstract

The beginning of the constitutional crisis in Poland can be traced to December 2015, when the lower chamber of the Parliament, the Sejm, elected three persons for judicial positions in the Constitutional Tribunal which were already occupied by judges who had been elected by the Sejm of the previous term. From that moment on, the Constitutional Tribunal began to legalise the unconstitutional actions of the legislature instead of controlling them. In July 2017, three bills were proposed to the Sejm: one on the ordinary courts, one on the National Council of the Judiciary and one on the Supreme Court, all aiming at subordinating the judiciary to the will of politicians. The Polish President vetoed two of them, but the one that remained was enough for the politicians to gradually take administrative power over judges in ordinary courts. In December 2017, two more significant legal acts were adopted by the Parliament, closing the cycle of changes that were to subordinate the judiciary to the political power. First, an extraordinary complaint was instituted, namely the ability to file a complaint against any final judicial decision. Such complaints were to be heard by a new chamber of the Supreme Court, the Chamber of Extraordinary Control and Public Affairs. Second, a new model for disciplinary proceedings against judges was instituted, under which a Disciplinary Chamber would be created to hear disciplinary cases against judges and other legal professionals. The existence and functioning of this chamber has later been questioned by the Court of Justice of the European Union, and it is one of the main issues in the dispute between the Polish government and the European Commission.