Poland Pitches Europe on Its War on Judges
Marcin Warchol is burning to show me a presentation he's used to persuade people in the Netherlands, Denmark, Slovakia and Croatia.
"It's funny," the former academic says of the European audiences. "At first there's always mistrust: You're fascists, you violate the rule of law. Then, after three or four hours of discussion, they're saying: We had no clue. You really do have problems."
Deputy Justice Minister Warchol is traveling the continent on behalf of the nationalist Polish government to combat "fake news," as he put it, about a controversial series of laws in his purview. The European Union is so concerned that it made history by opening a formal process that could revoke Poland's EU vote.
The European Commission, much of Poland's judicial community and political opposition, and almost the entire European liberal commentariat see the laws as completing the transfer of the court system to the political control of the ruling Law and Justice Party (PiS). That Poland hasn't backtracked on them has deepened the political rift between Europe's east and west created by the refusal of Hungary, Poland and the Czech Republic to take in Middle Eastern refugees. What the EU does about this situation will send important signals to a restless membership.
One reason the PiS leader and main decision-maker, Jaroslaw Kaczynski, pushed through a change of prime minister last December was to have a dialogue with the EU. Mateusz Morawiecki, Poland's current head of government, is a former banker fluent in English and German, and he started off his tenure with a few friendly casual meetings with western European leaders. In an interview in Warsaw, he said the Polish government would next week finalize a white paper on the justice reform. "We are going to convince Brussels about how much better, transparent, independent the judicial system will become," Morawiecki said.
But while the officials try to sell their vision to the EU and its specific members, so are Polish judges represented by a professional association, Iustitia, and the National Council of the Judiciary, the official body that appoints Polish judges. There is an intense war of narratives, with each side ignoring the other while appealing to the outside world. That outside opinions are so valued in this fight is an encouraging sign that Poland isn't headed down the path of President Vladimir Putin's Russia.
The controversial changes include a drastic reduction in the retirement age of Supreme Court justices, which would require the immediate retirement of about 40 percent of the 80 judges; a NCJ reform that requires the election of its members by the parliament; the formation of new Supreme Court chambers that will include lay judges and take on disciplinary proceedings against judges and deal with election-related matters; and a new process that would allow one of the new chambers to revise any court ruling delivered since 1997, should one of the parties complain about it on rather vaguely stated grounds.
The verbal fencing around these changes is intense. The European Commission has sent a set of recommendations, the government responded to them point by point, then Iustitia responded to the responses (in English and German). Both sides use the same data, such as the European Commission for the Efficiency of Justice report on the state of European judiciaries. Each side picks the infographics that fit its purpose. Warchol's presentation paints the Polish judiciary as painfully inefficient: It has more judges and court personnel per capita than most European countries, Polish judges are paid more relative to the national average than in France or Germany (and a district court judge makes about twice as much as Deputy Minister Warchol), and yet, according to the World Bank's Doing Business project, it takes a first-instance Polish court longer than most European ones to deal with an average case.
The judges respond with different data: According to the 2017 EU justice scoreboard, Polish courts resolve cases faster than most others in Europe. It's a case of different methodologies leading to radically different conclusions.
There are similarly conflicting narratives on other matters, including Morawiecki's favorite -- the impunity and continuing careers of judges tainted by collaborating with the Communist regime. "I was a freedom fighter in the 1980s and I don't like it that the same judges from Martial Law, who were completely subservient to the Communist regime, are now at the top of the pyramid of the judicial system," he said in the interview. "Five or six of them from the Supreme Court were deeply immersed in the system and several were guilty of being strongly supportive of the Communist system."
Judge Grzegorz Borkowski, head of office for the NCJ and a member of Iustitia, told me, however, that he only knows of three Supreme Court judges who ruled on resistance cases during the 1980s period of martial law, and only one of them sentenced a dissident. The judges point out that the top echelons of the court system were thoroughly purged after the Communist regime fell and that most of the lower court judges who weren't purged out have since retired: The average Polish judge is 44 years old, too young to have served the Communists.
Warchol has a response to that. The younger judges, he says, were corrupted by their older colleagues, and now they protect each other so fiercely that it's next to impossible to punish a judge. While Iustitia points out that disciplinary proceedings are only started against 50 judges a year -- a tiny percentage of the 10,000-strong community -- Warchol says it only happens because of judicial corporatism, and even then judges often get away with the most outlandish offenses. Just a few days ago, the Supreme Court let off a judge caught on a surveillance video appearing casually to swipe 50 zlotys ($15) from an old lady at a convenience store. The ruling said he had been "absent-minded," but Warchol is sure the judge was guilty.
"This is all a legacy of Solidarity," he says of the country's labor movement that toppled Communism. "They wanted people in every profession to self-govern. So the judges are still doing it." To Warchol, the PiS reform is about bringing them under the state's control: "They are, after all, part of the state, and they should serve the people like other parts of the state do."
That, of course, is not how the judges -- or the EU -- see it. Their concern is that the parliament's and the justice ministry's increased participation in judge selection are merely ways for the ruling party to put loyal people in strategic positions. "Elections," Borkowski says simply when I ask him what's in it for PiS, noting that many believe that the new Supreme Court Chamber for Extraordinary Control and Public Matters, which will rule on election-related matters, is the core piece of the justice reform.
The tug of war has resulted in a shortage of judges running for the revamped NCJ -- there are just 18 candidates for 17 places reserved for members of the community. To Borkowski, this is a sign that Polish judges are sticking together to resist the political hijacking of the courts; all the candidates are in one way or another linked to the Justice Ministry. To Warchol, this is fear of reprisal from a corrupt system. The parties, as it often happens these days, don't share a reality.
I find it impossible to pick a side in the debate. On the one hand, Poles like their court system less than Europeans in general, and the U.S. State Department has this to say about Polish courts in its 2017 Investment Climate Statements: "Generally, foreign firms are wary of the slow and over-burdened Polish court system, preferring other means to defend their rights. Contracts involving foreign parties often include a clause specifying that disputes will be resolved in a third-country court or through offshore arbitration." That's hardly a ringing endorsement. The country could clearly benefit from a more efficient court system, and government officials say correctly that, in a number of European countries, parliaments take an active role in judicial appointments: The new Polish system, on paper, won't be an outlier in terms of the degree of political control.
On the other hand, Poles' dissatisfaction with their judiciary is not so extreme to justify such a divisive reform and a raging conflict with the EU, given Poland's overwhelmingly pro-European public opinion. The government's ulterior motives -- especially given the election angle -- look suspicious, and its previous moves to neuter Poland's constitutional court suggest a pattern of using the political control to ensure loyalty rather than efficiency.
The EU will need to decide soon whether to yield -- at least partially -- to the Polish government's charm offensive. Warchol says Poland is ready to compromise, though there are some "red lines" such as a weaker role for judges in judicial appointments and the special Supreme Court chambers; the EU just needs to indicate what's acceptable. Judge Borkowski believes the EU will make a deal, accepting, for example, a Polish pullback on the Supreme Court retirement age. "The EU needs to declare victory, and it can't do so without finding a solution, because there are plenty of EU countries that won't want to take away Poland's vote," he told me.
If he's right, Polish judges are in for a rough period. They'll have little help in maintaining their own independence -- and they may have to learn to work more efficiently under adverse circumstances. But if the government's persuasion campaign fails and the EU gets into a punitive mood, all Poles may suffer as Europe becomes an inhospitable place for them and economic aid dries up.
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Mike Nizza at email@example.com