Polish Prime Minister Donald Tusk and Justice Minister Adam Bodnar introduced a draft law on the status of judges appointed or promoted to higher positions after 2018 on Sept. 6.
According to the proposed law, only judges who received their first appointment after graduating from the National School of Judiciary and Public Prosecution will maintain their status. Judges promoted to higher positions after 2018 will face different treatment. Some will have their promotions revoked three months after the law takes effect and will be reinstated to their previous positions. They will also be subject to disciplinary procedures. Other promoted judges will need to regret their decision to remain in office, after which they can return to court and compete for various positions. This bill purportedly aimed to “restore the rule of law” after the justice reforms introduced by the law and justice governments in 2017, and it would impact about a third of Poland’s judges.
Despite the announced draft law, Minister Bodnar has made numerous personnel changes at the head of the country’s most important courts since the beginning of the year, often under questionable legal conditions, and has taken control of the prosecution service nationwide following the unlawful replacement of the National Prosecutor, which was done without the required approval of the President of Poland.
The proposals put forward by Tusk and Bodnar on Sept. 6 were reportedly backed by the country’s legal community. However, several Polish legal organizations have issued a statement vehemently opposing the planned changes, highlighting that it represents an assault on the independence of the courts and judges. Here is their complete statement:
This is the unified stance of the Polish legal profession as of Sept. 9, 2024, in response to the announcements made by the Prime Minister and the Minister of Justice regarding a proposed law that would result in the demotion or dismissal of certain judges from their positions. Our unity is a testament to the strength of our opposition.
We, as representatives of the Polish legal profession, wholeheartedly and with the utmost outrage, object to the announcements made by the Prime Minister and the Minister of Justice concerning punitive measures, such as demotions and expulsions from the profession, that will be enforced against approximately 3,500 judges in the Republic of Poland.
The principles underlying this action, presented on Sept. 6, 2024, by Prime Minister Donald Tusk and Minister of Justice Adam Bodnar, constitute an unacceptable encroachment by the executive branch on the judiciary’s independence and the autonomy of judges in the Republic of Poland. This is because, under the guise of restoring the “rule of law,” this government aims to violate the constitutional principle of judges’ irremovability and, through the vetting process, to make the tenure of many constitutionally-appointed judges directly subject to the decisions of government officials.
The democratic systems of European nations are founded on the tripartite division of powers formulated in the 18th century. According to this principle, judicial authority is on par with legislative and executive power yet remains independent from them; in other words, judges are autonomous in their judicial activities. The Constitution of the Republic of Poland, enacted by the National Assembly on Apr. 2, 1997, was also built on such principles.
On Sept. 6, 2024, the executive branch, represented by the head of the Polish government, Donald Tusk, and Minister of Justice Adam Bodnar, announced an unprecedented purge of the judiciary. The purge would involve either removal from the judicial profession entirely or the demotion of a section of judges based on the arbitrary criterion of the date they were appointed as judges.
The executive branch has announced a troubling differentiation of the legal status of judges appointed after 2017, unfairly classifying them based on discriminatory criteria. Some judges are pressured to comply with the executive, while others face intimidation tactics such as disciplinary proceedings. This demand for obedience, labeled as “active contrition” by the Minister of Justice, undermines the independence of the judiciary, eroding public trust in the legal system. The government’s justification for these measures, questioning the transparency of judicial appointments, is unfounded, as the selection process was based on statutory procedures and overseen by the President. This attempt to subordinate the judiciary to the executive is unprecedented in Europe since World War II and contradicts the foundations of the Polish Constitution and European Union values. These actions constitute a constitutional violation and threaten the proper functioning of the Polish state. The demand for allegiance to the executive from judges is reminiscent of the tactics employed during the communist dictatorship, reflecting a dangerous direction for the Polish government.
We need to keep in mind the history of Polish citizens who faced repression for their opposition activities when considering the operations of the Polish justice system. In this regard, it is essential to highlight the provisions of the Act of Feb. 23, 1991, which declared judgments against individuals repressed for advocating an independent Polish state invalid. This act is still in effect in Polish law, and there are ongoing proceedings based on its provisions, particularly regarding procedural decisions made by judicial authorities from Jan. 1, 1944, to Dec. 31, 1989, that targeted those supporting Polish independence. This historical context underscores the gravity of the situation.
There are judges behind these sentences who have never been held accountable or scrutinized. Despite this, these individuals have not been compelled to self-criticism or expiation.
The recent purges, such as the demotion and removal of judges from public service, violate the constitutional guarantee of judges’ irremovability from office and risk throwing the entire justice system into chaos for years to come. In certain courts and for specific types of cases, the parties involved have been waiting for trial dates for years. This potential chaos is a cause for immediate concern.
It is regrettable and concerning to see the government’s announcements reflect extreme demands that were previously only expressed in political struggles and the media. By normalizing this unprecedented coup d’état, judges known for their political activism, including those associated with “Themis” and “Iustitia,” actively participate. Notably, the judges supporting this attack on the independence of the courts and the judiciary are individuals employed by the government and currently holding prominent positions within the Ministry of Justice.
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I. Factual circumstances
On February 16, 2022. Dariusz Barski, a retired prosecutor of the National Prosecutor’s Office, pursuant to Article 47 § 1 and 2 of the Law of January 28, 2016. – Introductory provisions of the Law – Law on the Public Prosecutor’s Office (Journal of Laws of 2016, item 197, as amended), he applied to the Prosecutor General for reinstatement to active service in the position of prosecutor of the National Prosecutor’s Office. The request was granted and on the same day the Prosecutor General, in a decision with the reference 1001-9.1122.754.2022, reinstated prosecutor Dariusz Barski to the requested position. March 18, 2022 4. The Prime Minister, pursuant to Article 14 § 1 of the Law of January 28, 2016. Law on the Public Prosecutor’s Office appointed Dariusz Barski as the first deputy National Prosecutor.
On December 29, 2023, a meeting was held of the National Council of Prosecutors under the Attorney General, who was already Adam Bodnar. It was held with the participation of Dariusz Barski, about whose status as National Prosecutor Adam Bodnar had previously raised no objections. In particular, he did not question at the time the fact that he was effectively reinstated on February 16, 2022. Dariusz Barski as a prosecutor to active status, nor did he inform him that he could not take part in the meeting, as in Adam Bodnar’s opinion he remains retired.
On January 10, 2024, National Prosecutor Dariusz Barski sent a letter to the Prosecutor General, informing him that until his appointment, he had been making decisions regarding appointments to the first prosecutor position in his stead. The National Prosecutor asked whether he should continue to make these appointments in his stead. On January 11, 2024, the Prosecutor General, in writing, gave further approval to Dariusz Barsky in this area. On the morning of January 12, 2024, Dariusz Barski met with the Prosecutor General. During the meeting, Adam Bodnar asked whether Dariusz Barski could submit a request for the appointment of Mr. Prosecutor Jack Bilewicz to the position of prosecutor of the National Prosecutor’s Office (the request of the National Prosecutor is a prerequisite for such an appointment). The Minister argued his request in such a way that Mr. Prosecutor Jacek Bilewicz will represent him in activities related to joining the European Public Prosecutor’s Office and it would be good for him to have the title of prosecutor of the National Public Prosecutor’s Office. Dariusz Barski agreed to this by submitting, at his express request , the same day the request in question. Moreover, the Prosecutor General announced that he would arrive at the headquarters of the National Prosecutor’s Office after 4 pm, but did not disclose the purpose of his visit. At around 3 p.m. Dariusz Barski received a call from a secretary at the Ministry of Justice , who confirmed that the relevant application had been sent to the Ministry. Less than an hour and a half later, Adam Bodnar arrived at the headquarters of the National Prosecutor’s Office with his advisor and handed Dariusz Barski a letter, the contents of which showed that the Prosecutor General had determined that it was ineffective to reinstate Dariusz Barski to active duty as a prosecutor of the National Prosecutor’s Office on February 16, 2022. He also “determined” that as of 12.01.2024 Dariusz Barski remains a retired prosecutor. In point IV. of his letter, Adam Bodnar indicated that: Under the regulations of Article 47 of the Law of January 28, 2016. Introductory Provisions – Law on the Public Prosecutor’s Office (Journal of Laws, item 178, as amended, hereinafter: the PoP) thus introduced a special procedure for the return of a group of retired prosecutors other than for health reasons in a situation where the existing regulations did not provide grounds for applying the procedure set forth in Article 127 of the PoP in conjunction with Article 74 §1 of the Act of July 27, 2001. Law on the organization of common courts (i.e., Journal of Laws 2023, item 217, as amended, hereinafter: PrUSP). For the reasons indicated, this procedure cannot apply to prosecutor Dariusz Barski. This was to be inferred, as it turned out, from the contents of three legal opinions. The letter handed to Dariusz Barski did not indicate any mode of appeal against this “decision.” Nor did it indicate what, in Adam
