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There have been a lot of talks recently about the erosion of judicial independence in Poland after the new government has decided to change the way judges are nominated. However to me (as a Czech resident) this criticism seems a bit strange since in the Czech Republic judges have always been nominated directly by the executive (subject to approval by the Parliament) and therefore the judicial system has never really been independent in the first place.

How does the new situation in Poland compare to the situations in other EU countries? Is it really true that judges are usually independent from the Executive and the Legislative branches of the government?

  • You don't want judges to be completely independent of the other branches. If judges can declare laws unconstitutional at will and impose - or block - policy decisions on the Executive branch with their verdicts, you're no longer living in a democracy but in a oligarchy. – Sjoerd Jul 22 '17 at 12:48
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    Notably, unlike the U.S. and U.K., the pool of people from whom judges can be appointed in Poland to the Poland Supreme Court is limited to people with at least 12 years experience in the next lower court of appeals (regional courts). So, in some ways there is still less discretion for political appointments in Poland than in some other countries, going forward. – ohwilleke Jul 25 '17 at 0:18
  • @Sjoerd That's different though. Since you could always not pay judges well. Considering they don't get to set their own income... – jjack Dec 20 '17 at 12:58
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There's a key difference:

In the Czech Republic, judges are appointed for life and cannot be revoked. Once appointed they can go rabid against the Executive and Legislative branches of government if the situation calls it. (EU countries all have a similarly independent Judiciary branch, whereby Judges cannot readily be dismissed nor can they have their salary slashed on a whim.)

By contrast the Polish Justice Ministry would be able to dismiss judges if the reform passes, i.e. the Executive branch of government would be able to keep the Judiciary on a tight leash.

Further reading on Judicial independence.

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    To illustrate nor can they have their salary slashed on a whim: several years ago, Czech government (due to ongoing economic crisis) attempted to cut salaries of most officials paid from public budget, including judges. The Constitutional Court deemed this unconsitutional, and revoked the part of the law that applied to the judiciary. – Emil Jeřábek Jul 21 '17 at 13:37
  • Article 82 of czech constitution: (2) A judge may not be recalled or transferred to another court against his will; exceptions, ensuing in particular from disciplinary liability, shall be specified by law." So a judge can be recalled. – user18889 Jan 9 '18 at 13:43
  • " the Polish Justice Ministry would be able to dismiss judges " where are your sources? Don't be ridiculous I asked for sources and you pretend you don't know what I am asking. – user18889 Jan 9 '18 at 13:44
  • @Tlen: Per your quote, in Czech Republic a judge can only be recalled if dismissed by his peers - the executive or legislative branch can't dictate what it wants. As to Poland's case it's all over the news, e.g. theguardian.com/world/2017/dec/08/… - it's about a reform that will give the ruling party control of the (currently judiciary controlled) committee in charge of appointing judges. – Denis de Bernardy Jan 9 '18 at 14:18
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    @Tlen: you're welcome to post your own answer and downvote this one if it's not up to your standards. (Or better yet, you're welcome to edit a satisfactory source in. There are plenty in the various discussions you triggered on the answers.) – Denis de Bernardy Jan 11 '18 at 9:22
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According to the National Law Review there are several major changes, including the following:

Increasing the number of judges and reducing their retirement age – The number of the judges of the Supreme Court will be increased from the current 81 sitting judges to at least 120. The current retirement age of 72 will be reduced to 65. The right of a judge to continue to be active after the retirement age after providing evidence of good health is limited to judges who receive the consent of Poland’s President to remain active. Because approximately 30 of the current 81 judges are above the age of 65, these two changes will mean that a new majority of judges on the Supreme Court will need to be appointed.

Changes to the method of appointing judges – Judges of the Supreme Court will be appointed by Poland’s President, following their nomination by the National Council of the Judiciary. In separate legislation, the parliament has changed the method of electing members of the National Council of the Judiciary. Before, a majority of the members of this council were judges chosen from assemblies representing various levels of the judiciary. Now, Poland’s Sejm (the lower chamber of the parliament), will have the right to choose 15 members of the council – a majority — from among Polish judges, thereby ending the dominance by members of the judiciary to nominate judges to the Supreme Court.

This means that now not only a majority of the Supreme Court judges will have to be appointed, but also that the Sejm being able to replace the majority of the National Council of the Judiciary means that (indirectly) the PiS can appoint the majority of the Supreme Court with judges that are PiS-friendly.

Note that it is not unusual in Western countries that the legislative can appoint judges (although this has been repeatedly critized), so this alone is not remarkable.

But, as Denis de Bernardy already stated in his answer, judges typically are appointed by lifetime, which makes it virtually impossible for a government to install only judges suitable to them. By contrast, the PiS is now able to install a majority of judges that suits them - and is able to fire them again when deemed necessary. This severely limits the independence of the Supreme Court and thus violates the separation of powers.

Note that it is not one aspect alone that is the problem, but the combination of all the aspects. You may find each of the aspects (legislative nominating the judges, executive being able to fire judges, judges not nominated for lifetime etc.) in some democratic states, but not all at one.

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    @Tlen Moreover, there have been hundreds of articles at that time praising Solidarnosc, chancellor Schmidt shortly before supported the NATO Double-track decision, and his quote is a remorse that only the law of war could prevent the Sovjets from marching in. Schmidt also said "Ich stehe mit ganzem Herzen auf der Seite der Arbeiter" ("I wholeheartedly am on the side of the workingmen"). Deriving from this that "Germans were on the side of military dictatorship" is an utter contortion of facts. They were diplomatically careful because they feared a confrontation on German soil, not more. – Thern Jan 8 '18 at 15:29
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    @Tlen Yes but there was no other part of the world where Polish judges for the new system existed. This was the same situation as after the breakdown of the Nazi regime, where most judges (except some notorious figures like Freisler) stayed in place simply because there were no judges educated in the new German Grundgesetz and you had to take the judges that were there. And a "cleaning" of "socialist" judges decades later is so obviously a fake argument that it is astonishing that anyone could fall to this. Poland obviously is absolutely not in danger of becoming communist again. – Thern Jan 8 '18 at 16:08
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    @Tlen And I am tired about your whataboutism. Nothing gets better because someone else might have done something that might seem remotely similar. It is a nice way to ignore arguments and attack the opponent instead, but it is cheap, unconvincing, and just proves that the own arguments are obviously moot. And since you keep ignoring my main point - that the combination of all measures allows for a cleaning of the majority of the justice system which is a typical start for dictatorships - any discussion is fruitless. Go on finding some things some Germans did wrong and be happy with that. – Thern Jan 8 '18 at 16:11
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    No use to discuss with fanatics. – Thern Jan 11 '18 at 11:39
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    I provided a source, you ignored most of it and instead talk of an evil German conspiration to subjugate Poland. I don't see how we get on from here. I will not remove an answer simply because it doesn't fit in your anti-German world view. Let me just say one thing, from German historical experience: The overthrow of democracies always needed supporters that could be fed with anything as long as it was claimed that this would fight the overpowered evil enemy. Even an "anti-fascist border wall" that mysteriously had the mines on the wrong side. – Thern Jan 11 '18 at 12:06
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Compared to Hungary, it's at par now. Both countries took serious steps to eliminate judicial independence and ensure the undisturbed corruption of the judiciary.

In Hungary the courts are already working as arbitrary popular tribunals. The judges are formally trained, but they only need a single year of experience as any kind of government official to be appointed and accepted. Even a criminal past is not a barrier. As a result it has recently happened that the Constitutional Court had to issue a decree reminding the judges that there are statutory laws governing their decisions, so they can't just define "justice" as they feel like.

I don't know about Poland, but both countries are increasingly disrespecting fundamental legal standards, in the name of "eliminating crime". Both countries have around 98% conviction rate, which means if you're charged with a crime, you have a meager 2% chance to be declared innocent or the case dropped against you for any other reason (ie. because you died or you're mentally insane). This is about 20-30% more than the European, US or Canadian rates. What do you think is more likely, the Hungarian law enforcement being that much efficient, or are they simply stuffing the prisons with innocents?

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    This answer sounds like a rant, and doesn't have any sources to back up the assertions it makes... – Nick C Dec 19 '17 at 11:15
  • @NickC Yes, you may rant but not without sources! – jjack Dec 20 '17 at 13:00
  • 98% is not 20-30% higher than US rates. Our conviction rate in federal courts is actually closer to 93%. At the state level it varies, but 70-80% is the usual range. – Jack Of All Trades 234 Dec 20 '17 at 14:04
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    Germany has a conviction rate of 30 percent (2012 data) for crimes. – jjack Dec 20 '17 at 16:52

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