The cost of a “reform” – the work of the justice system, 2015-2022
In the period from 2015 to 2020, Polish courts received, on average, 15 million cases a year. Over the last ten years, the average duration of court proceedings has increased significantly, from an average of four months in 2011 to more than seven months in 2019. The duration of proceedings also depends on the type of case. Judgments in criminal matters are handed down over a relatively short period of time while those in commercial matters are pronounced after the longest periods. Another relevant factor is the level of court: in regional courts, the average waiting time for a judgment was more than 10 months (in 2020).
Since 2016, the ruling majority has adopted more than 25 amendments concerning the court system and functioning of the judiciary. These amendments were also accompanied by multiple changes in civil and criminal procedures (the Code of Criminal Procedure alone was amended more than 40 times over that period). However, these changes have not resulted in an improvement in the efficiency of the judicial system. Even more worryingly, they have reduced the level of protection of independence of the courts and of the judges.
The COVID-19 pandemic also had a significant impact on the functioning of courts. The legislative changes intended to allow online trials have often been hastily adopted and have not been preceded by any in-depth analyses or public consultation. In effect, the “pandemic reforms” have brought organisational chaos and a lack of standardised practices. The pandemic also affected the arrangements for communication with courts – in 2020, the Common Courts Information Portal was introduced as a means of delivering procedural documents in civil proceedings to parties’ legal representatives.
A key change introduced after 2015 concerns the National Council of the Judiciary. In consequence of the changes in the law that became effective in 2018, the Sejm elects 19 out of 25 members of the Council. Both the change in the procedure for electing the Council’s judicial members and the way this body operates in its new form indicate that this body is no longer independent. Furthermore, as from mid-2018, the reshaped NCJ has not undertaken any significant action to protect the independence of the judges. Despite growing concerns about the establishment of the NCJ and its operations (confirmed, inter alia, by the jurisprudence of international courts), the Council continued its work, appointing some 2,000 judges over a four-year period.
The changes to the work of the courts have also been accompanied by changes that limit the independence of judges. In the wake of the 2017 legislative amendments (and subsequent changes in the law introduced in 2020), the Minister of Justice obtained wide powers concerning the appointment of judicial disciplinary officers and judges of disciplinary courts. The amended laws also weakened the guarantees related to the defence of judges accused of disciplinary offences. Since 2018, disciplinary officers have been initiating disciplinary proceedings against judges actively engaged in the defence of the rule of law. These proceedings concerned, among other things, the merits of pronounced judgments, public speeches or voices in the discussion on the changes in the justice system.
Disciplinary proceedings are not the only form of pressure exerted on judges. In addition to these, the prosecution service has developed in recent years a practice, employed in politically charged cases, which involves attempting to lift judges’ immunity from criminal prosecution, suspending judges from official duties or organising smear campaigns against judges in the public media and media outlets supporting the ruling majority’s party line.
The changes in the Polish justice system have been the subject of many judgments by international and domestic courts. International courts and the Polish Supreme Court have issued certain landmark judgments (such as the CJEU judgment of 19 November 2019, the resolution of three Chambers of the Supreme Court of 20 January 2020 and subsequent ECtHR rulings including Reczkowicz v. Poland) in which they have pointed out the systemic deficits of the introduced justice reform. These criticisms focus primarily on issues related to the formation of the National Council of the Judiciary, the functioning of the Disciplinary Chamber of the Supreme Court and the expanding powers of the Minister of Justice over the judiciary. However, none of these judgments has been fully implemented by the ruling majority.
Read our report “The cost of a “reform” – the work of the justice system, 2015-2022” and learn more: download the report