A Polish judge discusses recent annulments of convictions and the claims of political bias against certain judges, warning of potential chaos.
Apparent Dependence Versus Real Guarantees of Independence
Recent annulments of prison sentences for individuals convicted of serious crimes have sparked public debate, with the reasoning often citing the issuing judge as a “neo-judge” – one allegedly improperly appointed and therefore lacking independence.
However, those invoking “lack of independence” consistently fail to identify from whom these “neo-judges” are supposedly dependent. Questioning the independence of over a thousand judges necessitates identifying the source of that dependence, a step rarely taken because no such controlling entity exists.
Recusal Motions and Lack of Substantiation
Over the past several years, the author has reviewed numerous motions for recusal, targeting both themselves and other judges appointed through the same nomination process. These motions, beyond citing favorable tribunal rulings, lacked any credible evidence suggesting a judge’s relationships could create even a potential appearance of bias.
Justifications for these motions, whether from parties seeking delay or politically motivated lawyers, consistently relied on repeating pre-established arguments without demonstrating any actual threat to fair decision-making.
Selective Interpretation of Supreme Court Rulings
These arguments diverge from the Supreme Court’s (SN) January 23, 2020 resolution, echoed in the Court of Justice of the European Union (TSUE) case C-521/21, which is frequently cited by legal radicals. This ruling addresses improper court composition due to appointments made following the December 8, 2017 amendment to the National Council of the Judiciary (KRS) Act.
However, the same individuals consistently omit the resolution’s qualification, limiting improper composition to situations where the flawed appointment process simultaneously violates the standards of independence and impartiality as defined by the Polish Constitution, the EU Charter of Fundamental Rights, and the European Convention on Human Rights.
The Impossibility of Demonstrating Dependence
This selective reading ignores the fact that simply being appointed or promoted through the contested process does not automatically strip a judge of their independence. It’s difficult to demonstrate how the composition of the KRS – with members selected by Parliament rather than other judges – would influence rulings on typical cases like bank disputes, divorces, inheritance matters, or employment claims.
No logical argument can establish that the selection of KRS members by Parliament, rather than by judges themselves, inherently deprives parties of their right to a fair and impartial hearing, unless a specific link between the appointment process and the judge’s impartiality can be demonstrated.
The Search for a Source of Dependence
If a judge were truly lacking independence, it should be easy to identify the source of that dependence and how it might influence their rulings. Similarly, the principles outlined in the EU Charter of Fundamental Rights and the European Convention on Human Rights require an independent and impartial court established by law.
Demonstrating that the selection of judges by a KRS composed of politicians rather than judges impacts decisions on credit disputes, divorce settlements, or other common cases is impossible. Therefore, defending the validity of the contested appointments becomes untenable.
Chaos and the Erosion of Legal Authority
Criticism of the appointment process, based on alleged constitutional violations, fails when confronted with Article 187 of the Polish Constitution. The remaining argument, that of a lack of independence, also falters without identifying a source of dependence. The guarantee of non-removability for judges, as enshrined in Article 180 of the Constitution, further weakens this claim.
Even if politicians felt entitled to “gratitude” from appointed judges, the act of appointment by the President grants the judge independence from political influence. The risk of such influence is minimal due to the temporary nature of parliamentary mandates, unlike the permanent tenure of judges. This dynamic actually increases the potential for entrenched relationships and informal power structures within the judiciary itself.
The “Chaos Seekers” and the Cost of Radicalism
The lack of public concern regarding the alleged influence of the KRS appointment process led to a deliberate attempt to provoke a reaction, viewing public apathy as a threat. This involved mobilizing legal celebrities with academic titles, hoping their authority would silence dissent.
The infrequency of recusal motions, despite media attention, suggests that society is more concerned with practical problems than with the concerns of a segment of the legal community attempting to impose its views on others. The impact of these efforts has been minimal, indicating a public awareness of manipulation.
Upholding the Law Versus Political Agendas
The annulment of sentences in serious criminal cases was a deliberate attempt to shock the public and demonstrate the perceived need for “restoring the rule of law,” disregarding the costs to victims and their families. This reflects a willingness to sacrifice individual justice for a broader political goal.
The ideological zeal, often intertwined with personal interests, has led some judges to prioritize their political objectives over their oath to uphold the law, potentially crossing the line between applying the law and creating it.
The President’s Proposals and the Need for Clarity
The President’s proposals aim to re-establish the boundary between lawmaking and law application, forcing judges to choose between political engagement and impartial adjudication. This represents a step towards restoring the rule of law by removing the incentive for judges to use their positions for political purposes.
Taxpayers fund judges to adjudicate disputes based on existing laws, and those seeking to remain in the profession should limit their activities to that function.