Poland 2015-2019

Judiciary reform proved too much for PiS

Polska 2015-2019 2019-08-20
After four years of PiS governments, rule of law in Poland is in a worse state than it was before the party took over in 2015. Moreover, the Supreme Court is taking several months longer to hand down its verdicts.

Changes in the administration of justice
Changes in the administration of justice

Poland 2015-2019

Conflicts with the Tribunal in Luxembourg. PiS's term of office was marked by conflicts with EurCom and the CJEU. The issues in question refer to Supreme Court changes (including the introduction of a different retirement age for male and female judges, attempts to remove judges older than 65, such as the First Chief Justice of the SupCou, the creation of a disciplinary chamber), the National Judiciary Council (e.g. shortening its constitutional term, taking away the ability of judges to select their representatives in the Council) and the common courts (a new model of disciplinary proceedings increasing the MinJus authority). Come autumn, the CJEU could challenge the creation of the SupCou Disciplinary Chamber and the method of selecting National Judiciary Council (KRS) members. If that is the case, it will undermine key changes PiS has made to the judiciary.

Rule of law gets worse and worse. In 2015, Poland came 21st (out of 102) in the World Justice Project "Rule of Law Index 2015" assessing the state of the rule of law in various states (with a score of 0.71/1.00). This year, its score dropped (to 0.66) and the country fell to 27th place (this time 126 countries were assessed). Spending on the judiciary did not increase significantly over the course of the four elapsed years. In 2016, Poland came 18th (out of 36) in the Council of Europe's "European Judicial Systems: Efficiency and Quality of Justice" ranking, with EUR 49 per citizen (average EUR 60). In the 2018 edition, it took 24th place (out of 46), with EUR 51.8 per person (average EUR 64).

Fewer judges and prosecutors, with better salaries. According to GUS data, there were 5840 prosecutors in Poland in 2015, earning on average PLN 12 400 gross a month. In 2018, their number dropped to 5805 but their average salary increased to a gross total of PLN 14 300. The number of common court judges also fell: from 9936 in 2015 to 9297 at the end of 2018. As was the case with prosecutors, the earnings of judges increased: from PLN 11 400 gross a month (among district court judges) in 2015 to PLN 13 200 gross at the end of last year.

Constitutional Tribunal paralysed. After the changes carried out by PiS, the ConTrib works a lot less effectively than before. In 2015 it issued 63 rulings, compared to a mere 36 in 2017. On December 20, 2016, after Andrzej Rzepliński's term expired, president Andrzej Duda appointed Julia Przyłębska as Tribunal Head. She limited the court's case list and allowed so-called double judges to make rulings; some judges also accuse her of micromanaging judiciary panels. The decline of the ConTrib's authority translated to a drop in the number of cases being referred. In 2015, there were 623; in 2017, there were only 282.

Supreme Court working increasingly slowly. PiS amended the law on the SupCou eight times. Legal instability and the attempt to remove judges over 65 from the court took a toll on its efficiency and running it was made additionally difficult by a change in the SupCou rules made by the president. 11,214 cases were sent to the SupCou in 2015, with the judges considering 10,502 of them. In 2018, there was a slight increase in the number of cases referred (11,484), but only 9460 of them were considered. Before PiS took power, it took a maximum of 10 months on average for a ruling to be made regardless of chamber (except the military chamber). In 2018, the SupCou's civil chamber took an average 15 months to consider a case, with the labour and social insurance chambers taking 13 months. At the end of 2015, there were 84 judges employed in the court (working the equivalent of 93 full-time positions), while in August 2019 the figure was 105 (125 full-time positions).

Prosecutor's Office launching fewer inquiries. In 2010, the PO-PSL government separated the role of MinJus and ProGen to ensure greater independence for the prosecutor. On January 28, 2016 PiS reversed this change. Zbigniew Ziobro became ProGen and prosecutors linked to him were then employed by the National Prosecutor's Office (PK), which he supervises. According to PK data, prosecutors launched 98,000 inquiries in 2015, compared to 79,900 in 2018. In 2015, the number of cases with preliminary proceedings lasting over six months was 6351; in 2018, this number increased to 13,120. Four years ago, the prosecutor demanded security on property in 28,400 cases (for a combined total of PLN 303 million), compared to PLN 37,500 last year (combined total of PLN 1.05 bn)

Repealing the reform of criminal proceedings. PiS reversed litigation proceedings introduced by PO-PSL on July 1, 2015 and reinstated the so-called inquisitorial proceedings (greater participation of judge in the evidentiary procedure). This meant that there were three legal positions in Poland for a period of time (cases were heard based on provisions which were in place at the time proceedings began) which made the work of the prosecution difficult. On July 19, the Sejm adopted further changes to criminal proceedings. The MinJus's main aim is to streamline the examination of cases (e.g. by electronic delivery) but some of the new regulations are constitutionally dubious, such as the provisions enabling courts to conduct the submission and evaluation of evidence despite the justifiable absence of the defendant and his lawyer.

Return of commercial case proceedings. According to MinJus data, the average duration of court proceedings before a district court was 5.2 months in 2018, 8.2 months before a regional court of 1st instance, 3.3 months before a 2nd instance court and 6 months before a court of appeal. The results were similar to the 2015 results. In order to reduce the waiting time for a ruling, MinJus prepared a reform of the civil procedures code which was adopted by the Sejm on July 4. It reinstated the commercial procedure for business owners which had been abolished on May 3, 2012. It also introduced preparatory meetings, i.e. informal meetings between the judge, the parties and their lawyers.

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Wojciech Pawłuszko
fmr Senior Analyst for Legal Affairs
Wojciech Pawłuszko
PI Alert

EU summit: Member States launch discussion on financing joint defence initiatives

State of play

Leaders approved appointments to top posts. At the EU summit that ended on Thursday night, they nominated Ursula von der Leyen for a second term as head of EurCom, former Portuguese Prime Minister António Costa as head of EurCou and Estonian Prime Minister Kaja Kallas as head of EU diplomacy. Italian Prime Minister Giorgia Meloni abstained from voting for von der Leyen and voted against Costa and Kallas. This means that Meloni is preparing for tough negotiations and may demand a high political price in return for his party's support for von der Leyen in her approval in the EurParl. Prime Minister Viktor Orbán voted against von der Leyen and abstained on Kallas.

They adopted the Union's strategic agenda for 2024-2029. Over the next five years, the Union's goals include a successful digital and green transformation by "pragmatically" pursuing the path to climate neutrality by 2050. Another objective is to strengthen the EU's security and defence capabilities.

Von der Leyen spoke of EUR 500 billion for defence over a decade. This was the EurCom estimate of needed EU investment presented by its head at the EurCou meeting. Poland and France were among the countries that expected the EurCom to present possible options for financing defence investments before the summit, such as EU financing of common expenditure from a common borrowing. This idea was strongly opposed by Germany and the Netherlands, among others. In the end, von der Leyen decided to postpone the debate until after the constitution of the new EurCom, i.e. in the autumn. And the summit - after von der Leyen's oral presentation - only launched a preliminary debate on possible joint financing of defence projects.

Poland has submitted two defence projects. These might be co-financed by EU funds. On the eve of the summit, Poland and Greece presented in writing a detailed concept for an air defence system for the Union (Shield and Spear), which Prime Ministers Donald Tusk and Kyriakos Mitostakis had put forward - in a more general form - in May. In addition, Poland, Lithuania, Latvia and Estonia presented the idea of jointly strengthening the defence infrastructure along the EU's borders with Russia and Belarus. Poland is pushing for the EU to go significantly beyond its current plans to support the defence industry with EU funds and agree to spend money on defence projects similar to the two proposals. But EU states are far from a consensus on the issue.

Zelensky signed a security agreement with the Union. The document, signed by President Volodymyr Zelensky in Brussels, commits all member states and the EU as a whole to "help Ukraine defend itself, resist efforts to destabilise it and deter future acts of aggression". The document recalls the EUR 5 billion the EU intends to allocate for military aid and training in 2024 (in addition to bilateral aid from EU countries to Kyiv). It says that "further comparable annual increases could be envisaged until 2027, based on Ukrainian needs" i.e. it could amount to up to EUR 20 billion. Ukraine's agreement with the EU comes on top of the bilateral security "guarantees" Ukraine has already signed with a dozen countries (including the US, UK, Germany, France, Italy). As Prime Minister Donald Tusk confirmed in Brussels, talks are also underway between Ukraine and Poland on the text of mutual commitments on security issues.

PI Alert

KO wins elections to the European Parliament

KO received 38.2 per cent of the vote and PiS 33.9 per cent, according to an exit poll by IPSOS. Konfederacja came in third with 11.9 per cent, followed by Trzecia Droga with 8.2 per cent, Lewica with 6.6 per cent, Bezpartyjni Samorządowcy with 0.8 per cent and Polexit with 0.3 per cent. According to the exit poll, KO gained 21 seats, PiS 19, Konfederacja 6, Trzecia Droga 4 and Lewica gained 3. The turnout was 39.7 per cent.

According to the European Parliament's first projection, the centre-right European People's Party (EPP), which includes, among others, PO and PSL, will remain the largest force with 181 MEPs in the 720-seat Parliament. The centre-left Socialists and Democrats (S&D), whose members include the Polish Lewica, should have 135 seats, whereas the liberal Renew Europe club (including Polska 2050) will have 82 seats. This gives a total of 398 seats to the coalition of these three centrist factions (EPP, S&D and Renew Europe) on which the European Commission under Ursula von der Leyen has relied on so far. The Green faction wins 53 seats according to the same projection, the European Conservatives and Reformists faction (including PiS) 71 seats and the radical right-wing Identity and Democracy 62 seats.