The restoration of the rule of law in Poland? Judge Piotr Gąciarek (48) is not reassured. Even if an agreement is reached between the European Commission and Poland on the corona recovery fund. In return, Poland promises reforms, such as the abolition of the controversial disciplinary chamber that has already suspended several critical judges, including Gąciarek. Commission President Ursula von der Leyen is likely to fly to Warsaw on Thursday, a sign that the deal may be finalized this week.
Last year, Brussels and Warsaw were on a collision course. But after the Russian invasion of Ukraine, Poland turned out to be a front-line state and an important ally within the EU. The desire to settle disputes about the rule of law is great in times of crisis. “The government is betting that the EU is too busy with the war and ready for any deal, just to have a deal,” fears Gąciarek. And then judges are the child of the bill.
Gąciarek sits in the office of Wolne Sądy (‘Free Courts’), an organization in Warsaw that promotes independent justice in the country. The judge has been banned from practicing his profession for more than six months. Last fall, he was suspended by the controversial disciplinary chamber of the Polish Supreme Court. “I got a fax saying I was no longer a judge. They haven’t even heard me, although everyone has the right to appear in court. I’ve been treated worse than an average criminal.’
Both the European Commission and Poland have been biting their teeth in this disciplinary chamber for some time now. The chamber is part of the Polish Supreme Court and disciplines judges by suspending or otherwise punishing them. Especially judges who criticize the course of the government and the erosion of the independent judiciary have to suffer. According to the Commission, the chamber is an infringement of judicial independence, the Polish government states that it can decide for itself how and why it discipline judges.
200 million euro fine
In July 2021, the European Court in Luxembourg ordered the disciplinary chamber to suspend its activities for the time being. Poland paid little attention to this, as witnessed by the suspension of Gąciarek. ‘After the verdict, four more judges were suspended, I was the second.’ In October, the Court imposed a penalty of one million euros per day on Poland. It now concerns more than 200 million euros in fines that Poland refuses to pay.
However, the Commission has an asset that pales in comparison to this fine: the corona recovery fund, good for 36 billion euros in gifts and cheap loans. The fund will remain frozen as long as Poland holds its ground. The Commission has three demands: abolish the Disciplinary Chamber, change the laws to discipline judges and put suspended judges back in their place. These conditions are cast in ‘milestones’, EU language for: first results, then money.
Poland desperately needs that money. Polish President Duda devised a plan to reform the Disciplinary Chamber. Last Thursday, the Polish parliament voted in favor of a preliminary version of the plan. But Gąciarek is skeptical about Duda’s plans. “The presidential plan as it stands now does not meet the milestones.”
Judge Krystian Markiewicz from Katowice agrees. According to Markiewicz, president of the interest group Iustitia, which represents about a third of Polish judges, this is a cosmetic change. “The Disciplinary Chamber is really just changing its name.” It will be replaced by a ‘professional responsibility chamber’. The judges in the disciplinary chamber may retire or move to another chamber of the Supreme Court.
‘Like a tumor, the government takes over the judiciary’
Markiewicz fears they could even return to the reformed disciplinary chamber, through the Polish Council of the Judiciary (KRS), which nominates judges. According to him, the KRS is a political instrument with judges loyal to the government, the European Court of Human Rights made a similar ruling. Markiewicz describes the KRS as a ‘tumor’: through political nominations, the government is slowly taking over the judicial system. In the meantime, 2000 of the 10,000 judges in Poland have been appointed through the politicized KRS, including the judges who are now in the disciplinary chamber.
In that sense, the Disciplinary Chamber is just one piece of the complex puzzle the Polish government has made of the judiciary. And issues like the KRS aren’t even on the negotiating table right now. With an agreement on the disciplinary chamber, the Commission can claim to have taken an important step in the battle for the Polish rule of law, but this will not solve much, according to critical judges. And what exactly the agreement will entail is still unclear, to the chagrin of Dorota Zabłudowska, board member of Iustitia. “We are afraid that the Commission will agree to the inadequate law that is now in place. And then it’s too late.’
Last week, the disciplinary chamber lifted a suspension for the first time. Judge Paweł Juszczyszyn from Olsztyn is allowed to return to work after 839 days, possibly a signal to Brussels. However, he was transferred to a different department: family law instead of his specialization in civil law. Gąciarek: ‘You see how political these bodies are. Does the government have problems with the EU? Then we put a judge back in his place to make a good impression. The system is rotten.’ It is unclear when he will be allowed to work. ‘Fortunately, I am still teaching, although I am officially not allowed to because of the ‘demoralizing’ effect I would have on students.’
‘I fully understand that Polish judges are not always the most important subject in the EU,’ Gąciarek concludes. ‘But without a functioning rule of law everything collapses.’ Markiewicz agrees. The EU says: we are different from Putin, our democracies are based on the rule of law. But then we also have to defend those values at home.’