[PiS]sing off the Courts: the PiS Party's Effect on Judicial Independence in Poland.

• Author: Hoffmann, Michael
• Position: Law and Justice Party

TABLE OF CONTENTS I. INTRODUCTION 1154 II. BACKGROUND 1157 A. Rise of the PiS Party 1157 B. The Current Polish Judicial Structure 1160 C. The PiS Party's Reform Bills 1161 D. The PiS Party's Justification for the Reform Bills 1162 E. Domestic and International Responses to the Reform Bills 1164 III. ANALYSIS 1167 A. Article 7 Sanction Requirements 1167 B. Defining the Rule of Law 1169 C. Defining Judicial Independence 1170 1. Balancing Independence and Accountability 1171 2. De Jure and De Facto Independence 1172 D. The European Union's Judicial Independence Norms 1173 1. Judicial Resources 1174 2. Efficiency of the Judiciary 1174 3. Appointment Procedures 1175 4. Removal from Office 1177 5. Training for Judges 1178 IV. SOLUTION 1179 A. The Argument against Article 7 Sanctions 1179 B. Methods for Applying Exterior Pressure 1182 1. Withholding Structural Funds from Poland 1182 2. Suspension from the Schengen Area 1183 3. Pressure from European Courts 1186 C. Reform from within the Judiciary 1187 V. CONCLUSION 1189 I. INTRODUCTION

In 2015, a single political party gained more control over the Polish government than any other has managed since before the fall of communism in the country. (1) The Law and Justice (PiS) Party took control of the executive branch with wins by presidential nominee Andrzej Duda and prime minister nominee Beata Szydlo. (2) The PiS Party subsequently took control of the legislative branch by winning a majority of seats in both houses of the Polish Parliament--the Sejm and the Senate. (3) The only branch of government the PiS Party did not control was the judiciary. (4)

Shortly after coming to power, the PiS Party passed amendments inhibiting the Constitutional Tribunal (CT). (5) The CT resolves constitutional questions regarding actions taken by the other branches of government and state institutions. (6) In July of 2017, the PiS Party took another major step toward taking control of the judicial branch. (7) The Parliament passed three bills with the cumulative effect of replacing all Supreme Court (SC) judges, and the top officials of all other Polish courts, with new judges selected by the PiS Party. (8) The bills aimed to replace the former procedure for judicial appointments. (9) The replaced system relied on the National Council of the Judiciary (KRS), a body composed of judges selected by professional legal bodies, to nominate candidates for judicial appointments. (10) The bills effectively placed this power in the executive office of the Minister of Justice. (11) In what was considered a surprise move, Duda vetoed two of the three bills. (12) However, Duda stated he still favored reforming the judicial branch and asked Parliament to revise the bills. (13) In December of 2017, Parliament passed, and Duda signed, revised reform bills that are almost identical to the original bills. (14) The revised bills force 40 percent of the SC judges into retirement, as opposed to the entirety of the bench, but still change the makeup of the KRS to effectively give the PiS Party control over new judicial nominations. (15)

After Parliament passed the first reform bills, Polish citizens staged mass protests (16) and the European Union (EU) condemned the bills. (17) The EU strongly considered triggering Article 7 sanctions (18)--a previously unused mechanic. (19) Article 7 is a two-step sanctions process. (20) The first step provides that, with the approval of a four-fifths majority of member nations, the EU will formally warn a nation that there is a clear risk of a serious breach of EU values. (21) The second step involves the imposition of sanctions, including the possibility of stripping a nation's voting rights, but requires unanimous approval from EU member states. (22) Hungary supports Poland and made it clear it would oppose any sanctions, making it extremely difficult to impose those sanctions. (23)

The EU argued the proposed bills eliminated judicial independence and threatened the rule of law in Poland. (24) As a result, the EU claimed Poland also threatened the rule of law in all EU member states. (25) The rule of law is listed under Article 2 as one of the EU values referenced in and protected by Article 7. (26) In response, the PiS Party contended the current judicial nomination process failed to provide any oversight of the judiciary, breeding corruption and allowing ex-Communists to remain on the bench. (27) Further, the party's election campaign focused on reforming the judiciary. (28) Accordingly, the party claimed the reforms were the result of a fair, necessary, and democratic process. (29)

Since the EU has never actually imposed sanctions for rule of law violations, and therefore never had reason to define the rule of law, the question remains whether Poland's reform bills in fact violated the rule of law within the EU framework. Part II provides a more extensive background of Poland's political history, judicial procedures, and the PiS Party's reform bills. Part III analyzes the reform bills with respect to Article 7, judicial independence, and the rule of law, while also discussing standards for judicial independence throughout the EU. Part IV explains why the much-proposed idea of imposing Article 7 sanctions against Poland is not feasible, or maybe even desirable, and discusses alternate responses the EU can take against Poland, as well as how the situation in Poland can serve as a warning to the judiciaries in other nations.

2. BACKGROUND

   1. Rise of the PiS Party

      In the spring of 2010, Polish President Lech Kaczynski and numerous other high-ranking Polish officials flew to Smolensk, Russia. (30) The purpose of the trip was to attend an event marking the 70th anniversary of the Katyn massacre, in which the Soviet Union executed approximately twenty-two thousand Polish nationals. (31) Military personnel and police officers comprised over half of the Katyn victims, and the massacre served to weaken any possible Polish insurrection. (32)

      President Kaczynski's airplane crashed on descent, killing all ninety-six people onboard. (33) President Kaczynski's identical twin brother, Jaroslaw Kaczynski, was not on the flight and therefore survived. (34) Kaczynski subsequently became chair of the PiS Party, which the brothers had founded together. (35)

      Following the plane crash, Kaczynski attempted to take his brother's former position, but his numerous presidential bids failed. (36) Kaczynski later changed his political strategy, choosing other PiS Party members, Duda and Szydlo, to run for the positions of president and prime minister instead of himself. (37) Kaczynski's strategy proved successful in 2015: Duda won the national election in May, and Szydlo became prime minister following the parliamentary election in October. (38) During the parliamentary election, the PiS Party also won a majority of seats in both houses of Parliament. (39) In Poland, a party must find a coalition partner--another party--to work alongside if it does not win a sufficient number of seats in Parliament (the exact number depends on how many other parties earn seats). (40) By winning a true majority, the PiS Party is the first party to control the legislature without a coalition partner. (41)

      With the president and prime minister being PiS Party members, the party controlled the executive branch, and with a true majority of seats in both houses of Parliament, the PiS Party controlled the legislative branch. The PiS Party thus gained more control over the Polish government than any other party since the fall of communism. (42)

      As a result, Kaczynski became the most powerful political figure in Poland. (43) While Kaczynski is officially only one of 460 members of Parliament, his position as the chair of the PiS Party has given him nearly complete control over the Polish government since the 2015 elections. (44) The PiS Party is so leader centric that Kaczynski can expel anyone he wants from the party. (45) In addition, it is unlikely anyone expelled from the party will achieve success afterwards since no other political party will embrace a former PiS Party member due to the party's extreme stances and actions. (46) As a result, even the president and prime minister normally listen to Kaczynski's orders. (47)

      After the 2015 elections, the PiS Party began stripping power from anyone who posed a threat to the party's power. (48) One of the party's first actions was to pass amendments significantly inhibiting the CT. (49) Because the party controlled the executive and legislative branches, the CT served as one of the only independent checks on the PiS Party within Poland. (50) The PiS Party refused to publish the CT's decisions, increased the number of judges required to be present for the CT to hold a hearing, and adjusted the CT's schedule of case hearings. (51) As a result of the amendments, the tribunal has effectively become a pawn of the PiS Party rather than an independent branch of government. (52)

      The PiS Party also launched an attack on the Polish media. (53) The party passed legislation allowing the executive branch to hire and fire the broadcasting chiefs of state-owned media. (54) Since most Polish citizens collect their news from state-owned sources, (55) controlling those sources gives the PiS Party power over the information citizens receive. Duda argued the laws created a more "impartial, objective, and reliable" press that will promote Polish traditions and patriotic values. (56) The PiS Party also passed other controversial legislation, such as bills increasing the ability of the government to conduct surveillance of its own citizens (57) and limiting the right to peacefully assemble. (58) However, the legislation receiving perhaps the most international attention is those bills affecting the SC. (59)

   2. The Current Polish Judicial Structure

      The reason the bills affecting the SC have garnered so much attention is because of the important role the SC plays in day-to-day legal...