Iustitia

• Published date: 01 January 2021
• Author: Krystian Markiewicz
• Date: 01 January 2021
• DOI: http://doi.org/10.1111/eulj.12441

EPILOGUE: IN SOLIDARITY WE STAND

Iustitia

Krystian Markiewicz

*

1|INTRODUCTION

Iustitia is the name of one of the main associations of judges in Poland. This name in and of itself crystallises both

what the function of judging is about and the relentless fight to safeguard the rule of law in Poland and in the EU.

Iustitia means justice in latin, a language which has shaped the legal culture and minds of generations of lawyers,

and more particularly judges, across Europe, uniting them in a community of values. The peculiarity, if not unique-

ness, of this latin expression is that it refers not only to the substantive side of justice: the quality of being just, fair

and equitable, but to its formal side: the quality of acting according to the law. It thus encapsulates both the subjec-

tive and objective meaning of the rule of law, at the heart of the institution of justice. It also links together the value

of justice, iustitia, with its concrete embodiment in ius, referring at the same time to objective law and subjective

rights. It is this common conception of iustitia that shapes European legal culture which has brought us together

across Europe, through the various institutions of justice, in the fight against rule-of-law backsliding.

Every Pole, just like every European, has a formally granted right to a court (Article 45 of the Constitution of the

Republic of Poland, article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms,

Article 47 of the EU Charter of Fundamental Rights, Article 19 (1) of the Treaty on European Union). Every Polish

judge, just like every European judge, should have his or her independence guaranteed so that the right to a court

can actually be exercised. In recent years however, Poland has experienced severe attacks against the independence

of the judiciary, thus undermining the individual right to a court. It is through a multi-level judicial dialogue in Europe

and the multi-level concept of the rule of law that resistance against such phenomenon has been organised.

Courts are traditionally conceived as the guardians of the rule of law, ensuring that no one is above the law.

1

Independent courts –through independent judges –have the final say in whether the rule of law has been violated.

It is therefore up to the courts, whether at European or national level, to uphold and preserve the rule of law in the

EU. In this context, one question has proved to be central: the shaping of the standards of an independent court at

the European level and the legal means to defend these very standards at the national level.

One the one hand, the Court of Justice has renewed the understanding of the principle of national procedural

autonomy as regards the organisation of justice in a way which has had a profound impact.

2

According to the

Luxembourg Court, this principle has to be conceived more as a set of obligations regarding access to justice, fair

*

President of the National Board of Polish Judges Association IUSTITIA; Judge in Poland; Professor of Law, University of Silesia.

1

See K. Lenaerts, ‘New Horizons for the Rule of Law Within the EU’, (2020) 21 German Law Journal 2020, 29; K. Gajda-Roszczynialska, ‘Między interesem

publicznym a prywatnym–granice władzy sądzenia w postępowaniu cywilnym’, (2020) 3 PrzeglądSądowy,1.

2

See K. Gajda-Roszczynialska, ‘A test of six conditions of the EU standard of the notion of “court”and the Polish administration of justice –deliberations

on the basis of the judgment of Court of Justice dated 27.2.2018 in the case of C-64/16 Associaç˜aoSindical dos Juízes Portugueses’, (2018)1 Iustitia 2018,

http://www.kwartalnikiustitia.pl/wp-content/uploads/2018/10/KGR-A-test-of-six-conditions-of-the-EU-standard-of-the-notion-of-court.pdf.

DOI: 10.1111/eulj.12441

312 © 2022 John Wiley & Sons, Ltd. Eur Law J. 2021;27:312–347.wileyonlinelibrary.com/journal/eulj

procedures and independence of the judiciary

3

than as a prerogative of the Member States, as it has traditionally

been interpreted. If it is up to the CJEU to define what EU law is, and for national courts to apply EU law, the very

nature of their relationship postulates and requires the existence of national courts equipped with jurisdictional

authority as a guarantor of the exercise of the right to a tribunal. This in turn is only ensured before courts whose

independence is guaranteed, regardless of whether EU law is or could be applied in a particular case.

4

It is clear that

there may be differences among national legal orders, but they all have to comply with this new paradigm of a

“Union court”and conform to the standards set by the Court of Justice.

One the other hand, the European Court of Human Rights has itself made clear that the rule of law is the ‘lode-

star of the European Convention on Human Rights’,

5

thus prompting the multiplication of “rule-of-law backsliding

cases”against Poland before the Strasbourg Court.

6

Despite and at odds with the many judgments of the CJEU and ECtHR, and the opinion of various international

bodies such as the Venice Commission, Polish judges are being tried and sanctioned, through both formal and infor-

mal ways

7

which resemble a hybrid warfare, for upholding the rule of law and these courts' judgments. Among the

main tools used to break down judicial independence in Poland are disciplinary and immunity-related criminal actions

aimed at punishing, discarding or intimidating judges. As actions speak louder than words, and in a spirit of building

bridges between law practitioners and academics, the reader will find below a list of judges who have fallen victim to

such actions (section 3). It is a testimony, as of June 2022, of rule-of-law backsliding in Poland and of the facts and

lives that lie behind the judicial independence milestones of the Recovery and Resilience Plan of Poland.

But the systemic destruction of judicial independence in Poland consists of a double movement. The eradication

of independent judges and courts is coupled with a perverted system of judicial appointments via the National Coun-

cil of the Judiciary (NCJ), a body judged by both the Luxembourg and the Strasbourg Courts as not established by

law. Iustitia, together with other associations of judges in Poland, alerted the European institutions against this dan-

ger. The main arguments are also reproduced in this contribution (section 2).

8

It is again a testimony of rule-of-law

backsliding in real-life context but it is also a testimony of the legal and human fight against it. It is when law and life

collide that the crucial questions emerge. What we are, individually and collectively, ready to do to uphold iustitia will

determine the fate of the rule of law in Europe.

3

Compare D.U. Galetta, ‘Procedural Autonomy of EU Member States: Paradise Lost? A Study on the ‘Functionalised Procedural Competence’of EU

Member States’, (2010) Heidelberg; E. Cannizzaro, ‘Sui rapporti fra sistemi processuali nazionali e diritto dell'Unione Europea’,inIlDiritto dell'Unione

Europea (2008), 447; N. P

ołtorak, ‘European Union Rights in National Courts’, (2015) Alphen aan den Rijn; A. Wallerman, ‘Towards an EU Law Doctrine on

the Exercise of Discretion in National Courts? The Member States’Self-Imposed Limits on National Procedural Autonomy’, in (2016) Common Market Law

Review, 339.

4

However, the CJEU found the questions in three cases from Poland to be inadmissible in the joined cases C-558/18 and C-563/18, Miasto Łowicz,

26 March 2020, ECLI:EU:C:2020:234, as well as judgment in case C-623/18, Prokuratura Rejonowa w Słubicach v BQ, ECLI:EU:C:2020:800; Case C-216/18

PPU, LM, 25 July 2018, ECLI:EU:C:2018:586.

5

See, in this issue, R. Spano, ‘The rule of law as the lodestar of the European Convention on Human Rights: The Strasbourg Court and the independence of

the judiciary ‘, 27(1–3) European law Journal,https://doi.org/10.1111/eulj.12377.

6

See the edifying list compiled by the European Court of Human Rights, Press unit, Poland –Press country profile, last updated July 2022, https://www.

echr.coe.int/Documents/CP_Poland_ENG.pdf.

7

Actions are undertaken to undermine public confidence in judges and ensuring support for the introduced changes in the judiciary, including changes in

the model of disciplinary proceedings. See the negative media campaign conducted by the Polish National Foundation on TV, press, radio and street

billboards, with the slogan: “Fair Courts”. Polish Public Television also produces and broadcasts “para-documentaries”showing courts and judges in a bad

light. See also the so-called “hater scandal”, an online trolling campaign against judges –and their families –fighting for judicial independence. The

situation resulted in the dismissal of Deputy Minister of Justice Mr. Piebiak. https://ruleoflaw.pl/why-did-the-polish-deputy-minister-of-justice-resign-

everything-you-need-to-know-about-the-piebiak-scandal/,https://www.theguardian.com/world/2019/aug/21/top-polish-official-resigns-over-alleged-

harassment-of-judges,https://www.politico.eu/article/senior-polish-official-lukasz-piebiak-quits-in-the-wake-of-internet-trolling-scandal-law-and-justice-

pis-party/. See also the work of the so-called “team for the actions of the Minister of Justice in disciplinary proceedings of judges and court assessors”

which was established under the Minister of Justice to “perform analyses and make recommendations to the Minister of Justice”regarding “disciplinary

proceedings of judges.”

8

See also, ‘Joint Statement in support of the Polish Judges Letter’by European associations of judges and prosecutors, https://www.iaj-uim.org/iuw/wp-

content/uploads/2022/05/EAJ_Platfom_Statement_30.05.2022.pdf.

MARKIEWICZ 313

2|A CALL TO TACKLE NOT ONLY THE CONSEQUENCES BUT ALSO THE

ROOT CAUSES OF THE BREAKDOWN OF JUDICIAL INDEPENDENCE IN

POLAND

Dear Madam President of the European Commission, Vice-Presidents and Commissioners.

Dear President and Vice-Presidents of the European Parliament.

Dear Chairperson of the LIBE Committee.

As Polish judges, we once again address you and ask you to take all possible actions to restore the rule of law in

Poland and to guarantee citizens of Poland and other Member States the right to an independent court.

The Court of Justice of the European Union and the European Court of Human Rights have questioned the inde-

pendence of the Polish National Council of the Judiciary (NCJ) in a number of judgments, stating that this politically

appointed body does not ensure the proper guarantees of the independence of judges appointed with its involve-

ment –in accordance with European standards. The ECtHR has identified systemic problems with the functioning of

the NCJ and has found that any judge appointed to the Supreme Court with the participation of the NCJ did not

meet the requirements of Article 6(1) of the ECHR.

It should be noted that the Polish government has thus far failed to implement CJEU and ECtHR judgments con-

cerning the NCJ, and the draft bill amending the Act of the Supreme Court, proposed by the President of Poland and

currently before the Polish Parliament, does nothing to resolve the NCJ problem in any way. More so, it provides a

basis for defectively appointed judges to sit on the Supreme Court's new disciplinary body, titled the Professional

Responsibility Chamber. This is contrary to ECtHR rulings and will result in both further complaints to the ECtHR

and new preliminary questions to the CJEU. The existence of this Chamber is equal to consenting to systemic viola-

tions of the European Convention on Human Rights in an EU Member State.

With the participation of the so-called neo-NCJ, around 2000 judges have been already appointed. Their rulings

can thus be successfully challenged due to the flawed appointment procedure. Further cases are pending before the

CJEU and the ECtHR concerning the effects of the appointment of judges with the participation of the NCJ. The Pol-

ish Judges` Association Iustitia has prepared a comprehensive draft bill

9

implementing all rulings of European courts,

which, following public consultation, was submitted for legislative review by opposition parties in parliament. Unfor-

tunately, the Polish Sejm (the lower chamber of the Polish parliament) not only failed to implement the judgments of

the CJEU and restore the independence of the NCJ –which is necessary for it to fulfil its constitutional role of

protecting the independence of judges –but it instead did the opposite: several days ago, as part of the same politi-

cal procedure, it elected the judicial members of the National Council of the Judiciary for another term of office. This

Council was composed of persons with connections to political power, who are disgraced and included alleged par-

ticipants to the so-called ‘hate scandal’at the Ministry of Justice, whose purpose was to discredit judges and attack

those who openly defended citizens' right to an independent court. Presidents of courts, who are directly subordi-

nated to the Minister of Justice/Prosecutor General, were elected as the Chair and Vice-Chair of the NCJ.

A new four-year term of office for a defectively appointed NCJ must necessarily result in a systematic increase in

the number of defective judicial appointments in Poland. Such judges in four years' time may constitute half of the entire

Polish judiciary. This will mean politicisation of the judiciary in Poland and a lowering of the quality of judicial decisions. A

perfect illustration of this state of affairs –as reported in the independent press –is the comment made by persons

active in and connected with the NCJ about the selection of several judges, that such persons under normal circum-

stances could only dream of being promoted. Among judges promoted by this Council were disciplinary officers

(appointed by Zbigniew Ziobro –Minister of Justice/Prosecutor General) who prosecuted judges solely for their judg-

ments. On the contrary, more than one thousand judges have so far refused to participate in these “rigged”competitions

over the past few years. Without changes being made to the NCJ, the degradation of the Polish judiciary will continue.

9

See ‘Polish Judges Association draft of the amendment of the Act on the National Council of the Judiciary, the Act on the Supreme Court and on certain

other Acts’,Iustitia, 5 July 2022, https://www.iustitia.pl/en/4484-polish-judges-association-draft-of-the-amendment-of-the-act-on-the-national-council-

of-the-judiciary-the-act-on-the-supreme-court-and-on-certain-other-acts.

314 MARKIEWICZ