UNIVERSITY OF AMSTERDAM - LLM THESIS
Defining judicial independence in the
midst of the Polish rule of law crisis
Agata Magdalena Poznańska
Supervisor: Professor Pieter Jan Kuijper2019-07-05
Word count: 13 687
e-mail: poznanska.aga@gmail.com Student number: 12244724
TABLE OF CONTENTS
ABSTRACT ... 1
INTRODUCTION ... 2
Research question ... 2
Salience of the topic ... 2
Delimitation ... 4
Methodology ... 4
CHAPTER I – Factual background ... 4
CHAPTER II – Perspective of the European Commission ... 7
Constitutional Tribunal ... 8
Ordinary Courts ... 11
National Council for Judiciary ... 12
Supreme Court ... 13
Conceptualisation of judicial independence ... 14
CHAPTER III - Perspective of Poland ... 15
Constitutional Tribunal ... 15
Ordinary Courts ... 17
National Council for Judiciary ... 18
Supreme Court ... 19
Conceptualisation of judicial independence ... 20
CHAPTER IV– Literature - setting the benchmark ... 21
Judicial independence de jure and de facto ... 23
Quis custodiet ipsos custodes – about accountability ... 28
CONCLUSION ... 32
1 ABSTRACT
The present work aims at delving into the conceptualisations of the notion of judicial independence of two sides of the current Polish rule of law conflict – the European Commission and the Polish government, and evaluating them against the standard described in the academic literature. The first chapter sets the factual background of the dispute; the second one presents the perspective and arguments of the European Commission; the third one mirrors the previous one with regards to the perspective of the Polish government, while the last one goes into the academic viewpoint and assesses the two conceptualisations in light of it. The analysis in the last chapter focuses on two aspects of the idea of judicial independence: the difference between de jure and de facto independence and judicial accountability. Following the analysis conducted through the lens of these two tenets, the conclusion is reached that the Polish conceptualisation does not adhere to the standard set by the literature, while the conceptualisation of the European Commission does adhere to it. Regarding the first tenet, the academic view that de jure independence does not equate to de
facto independence, proves that the arguments of the Polish side cannot be accepted. When it
comes to the idea of judicial accountability, the academic understanding of that notion also diverges from the one presented by the Polish government.
2 INTRODUCTION
Research question
Striving for a definition of judicial independence in the midst of the Polish rule of law crisis is a crucial issue. There are two sides of the conflict – the current Polish government and the European Commission, and many other voices in the academic and political debate. It is therefore of utmost importance to define the notion of judicial independence and confront it with the conceptualisations presented by both sides of the conflict. The research question posed in this work shall thus examine which conceptualisation of judicial independence, European or Polish, achieves the benchmark set out in the literature and why is this so?
Salience of the topic
As stated by Peter H. Russel, there seems to be a common understanding that judicial independence is an inevitable characteristic of a liberal democracy.1 There is however no such universal agreement as to what the notion of judicial independence in practice comprises of.2 As acknowledged by Russel, democracies differ in defining judicial independence according to their particular context.3 In light of this debate, it is therefore especially interesting to look at the field of the European Union (EU) and consider the different conceptualisations of the principle arrived at by the two parties of the ongoing rule of law dispute – the European Commission and the Polish government. Notwithstanding the fact that there are also other core points to the dispute, judicial independence seems to be the most significant bone of contention for both parties. In September 2018 the European Commission has instituted infringement proceedings against Poland in the European Court of Justice (ECJ) due to passing a legislative act lowering the retirement age of the judges of the Polish Supreme Court in December 2017, which in effect forced twenty seven out of seventy two judges to leave their posts.4 Following the initiation of the proceedings, in October 2018 ECJ issued interim measures requiring Poland to reverse the effects of the act.5 The Advocate General opinion in the case was released in April 2019,6 while the final judgment of the Court is expected in
1 Peter H. Russell Judicial Independence in The Age of Democracy: Critical Perspectives from around The
World (University of Virginia Press: 2001).
2
Ibid.
3
Ibid.
4 European Commission - Press Release, 24 September 2018.
5 Order of the President of the Court of 15 November 2018 in Case C-619/18R Commission v Poland .
6 Opinion of the Advocate General Evgeni Tanchev in Case C 619/18 Commission v Poland delivered on 11
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June.7 Simultaneously in March, the ECJ considered the preliminary ruling questions referred by the Polish Supreme Court in connection to the reforms of the National Council of the Judiciary as well as the independence of the newly introduced Disciplinary Chamber of the Supreme Court.8 What is also an important development, in the recent LM case, the ECJ considered a preliminary ruling question referred by the Irish court, which expressed its doubts as to the guarantee of the right to the fair trial in Poland due to the turmoil concerning judicial independence. The Irish court asked whether executing a European Arrest Warrant (EAW) and surrendering the suspected criminal to Poland would not breach his fundamental right contained in Article 47 of the Charter of the Fundamental Rights (CFR). Despite the fact that the Court did not per se hold against surrendering the suspect to Poland, it emphasised that should there be a decision of the European Council on Article 7(2) of the Treaty on the European Union (TEU) with regards to the issuing country, the EAW shall not be executed.9 Even though there is yet no decision of the European Council on depriving Poland of its voting rights, and for political reasons perhaps such decision will not be taken any time soon,10 the Commission has already activated article 7(1) TEU, which triggered proceedings in the Council. Furthermore the developments such as the infringement proceedings described above or the LM case prove to be a significant sign that the European legal world conceives the changes in the Polish judiciary to the be a jeopardy to democracy. On the other hand, the Polish side vividly responds to concerns over the Polish judicial system and presents its own line of legal argumentation, whereby it defends the judicial reforms pursued by the government.11 Arguing that it possess the mandate of the sovereign (which according to the Polish constitution is the nation),12 it can amend laws and introduce reforms freely.13
7
TVN24 News Channel ‘Unijny trybunał ogłosił, kiedy wyda wyrok w sprawie zmian w Sądzie Najwyższym’ (‘The ECJ announced the date of the judgment in the case of the Supreme Court changes’)
https://www.tvn24.pl/wiadomosci-z-kraju,3/wyrok-tsue-ws-skargi-ke-na-polske-dot-sadu-najwyzszego-24-czerwca,938152.html [accessed 07.06.2019].
8 Maria Ejchart-Dubois, Sylwia Gregorczyk-Abram,Paulina Kieszkowska-Knapik, Michał Wawrykiewicz ‘The
rule of law in Poland Actions by EU institutions and unaddressed recommendations of the European Commission’ Stefan Batory Foundation.
9
Case C 216/18 PPU LM ECLI:EU:C:2018:586, para 70.
10 Kim Lane Scheppele ‘Can Poland be Sanctioned by the EU? Not Unless Hungary is Sanctioned Too’
Verfassungsblog 24.10.2016 https://verfassungsblog.de/can-poland-be-sanctioned-by-the-eu-not-unless-hungary-is-sanctioned-too/ [accessed 22.02.2019].
11 Excerpts of the Polish PM Beata Szydło’s speech in the Polish Parliament on 23.05.2016 ‘Polish PM: Poland
is a sovereign state’ https://polska.pl/politics/home/polish-pm-poland-sovereign-state/ [accessed 22.02.2019].
12 Article 4 of the Polish Constitution: “(1) Supreme power in the Republic of Poland shall be vested in the
4 Delimitation
Taking into consideration the fact that the issue of the rule of law crisis in Poland, however also in Central and Eastern Europe more generally, is a very broad topic, this work will limit its scope only to the specific issue of judicial independence in Poland, as an important element of the crisis and a core tenet of the principle of democracy, being also the crucial factor in the dispute with the European Commission. A closer look will be taken at few chosen laws passed recently in Poland, which are at the centre of the dispute.
Methodology
Given the positive nature of the research question, the planned methodology shall follow the doctrinal-positivist approach, which will entail assessing the European and Polish conceptualisations of judicial independence against the standard set by the academic literature. In order to deploy this methodology, the following work is going to be built on four chapters. The first chapter will lay out the factual background of the dispute and set out the timeframe of events. The second chapter will discuss the European definition of judicial independence and it shall comprise of the analysis of the documents produced by the European Commission in the course of its dialogue with the Polish government. The third chapter will delve into the Polish considerations of judicial independence and shall be focused on analysing the official replies of the Polish government to the arguments brought forward by the Commission. Finally, the last chapter shall discuss the academic sources dealing with the definition of judicial independence. It will seek to establish an objective standard, setting the benchmark for defining judicial independence and its significance in comprising the rule of law. It shall also provide an analysis of the European and Polish definitions of judicial independence in relation to the standard established by the literature and it should critically assess, to what extent both of the parties have achieved what is set by the benchmark. The choice of the literature in that chapter will focus on the sources detached from the Polish crisis itself, for the sake of an utmost objectivity.
CHAPTER I – Factual background
Before delving into the substance of the Polish rule of law dialogue, it is necessary to first briefly establish the factual background of the dispute, which shall make clear the later references to particular events.
The trigger for the first intervention of the Commission, was the issue of the Polish Constitutional Tribunal. Before the current political majority won the parliamentary elections
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on 25 October 2015, the previous outgoing Sejm (the lower chamber of the Polish Parliament) chose five new judges to the Constitutional Tribunal to replace those whose term of office was due to expire. The bone of contention was however the fact that three of the five judges were supposed to take their seats during the mandate of the outgoing Sejm (November 2015), while two others would only take them after the parliamentary elections (December 2015).14 The elections established a new ruling majority (Prawo i Sprawiedliwość – Law and Justice), which was in political opposition to the previous Sejm majority (Platforma Obywatelska – Civic Platform and Polskie Stronnictwo Ludowe - Polish People’s Party). Almost a month after the elections, on 19 November 2015, the new majority passed a law amending the previous Constitutional Tribunal Law and on that basis on 25 November repealed the appointments of the five judges and instead chose five new candidates.15 Moreover, the new amended version of the law stipulated that the mandate of the President as well as of the Vice President of the Tribunal shall be shortened to three years with the possibility of being renewed once and it provided for the termination of the tenure of the incumbent President and Vice President.16 It also stipulated that the term of office of a judge of Tribunal shall start with the oath taken by the president of the country.17 On 2 December the president of Poland took an oath from the five newly appointed judges, which hence officially commenced their term of office. In reaction to this, a group of deputies from Platforma Obywatelska asked the Tribunal, if such appointment was legal, given that the set of judges has already been chosen. On 3 December 2015 the Tribunal ruled that the appointment of the three judges, whose term of office begun in November, by the previous Sejm was legal, however the appointment of the two judges, whose term of office begun in December was not.18 The ruling also made clear that the president of the country should immediately take oath from the three judges chosen by the previous legislature.19 On 9 December the Tribunal delivered another ruling in which it held that the law from 19 November, which provided the legal basis for the appointment of the new set of judges on 25 November was invalid.20 This however did not change the factual situation, as the judgments have not been implemented. On 22 December 2015 the new
14
European Commission’s Reasoned Proposal in Accordance with Article 7(1) of the Treaty on European Union Regarding the Rule of Law in Poland, Brussels 20 December 2017 COM(2017)835
2017/0360 (APP), recital 9.
15 Batory Foundation (n 8).
16 Article 1(1) of the Law Amending the Law on The Constitutional Tribunal from 19 November 2019 (Ustawa z
dnia 19 listopada 2015 roku o zmianie ustawy o Trybunale Konstytucyjnym Dz.U. 2015 poz. 1928).
17 Ibid Article 1(4).
18 Judgment K 34/15 of the Constitutional Tribunal. 19
Ibid.
6
legislature again passed an act amending the previous law on Constitutional Tribunal concerning its functioning and the independence of its judges,21 which on 9 March 2016 was held unconstitutional by the Tribunal.22 This latter judgment was however only published by the government in the official journal on 5 June 2018. On 22 July 2016 the legislature passed another law concerning the Constitutional Tribunal, on which the European Commission expressed its concerns.23 The Commission became aware of the constitutional dispute already in November 2015.24 In December it filed a letter to the Polish government seeking to clarify the matters, in January 2016 it decided to enter into a formal dialogue with Poland through the Rule of Law Framework,25 and on 27 July 2016 it officially commenced the Framework and communicated its first recommendation to Poland.
The said Framework was established in 2014 for the “effective and coherent protection of the rule of law in all Member States”26
and to “address and resolve a situation where there is a systemic threat to the rule of law”.27
In its communication regarding setting out the Framework, the Commission explained that the core elements of the properly functioning rule of law, which need to be protected in all Member States are, inter alia, independent and impartial courts and effective judicial review.28 As specified in the document, the Rule of Law Framework shall be triggered “in situations where the authorities of a Member State are taking measures or are tolerating situations which are likely to systematically and adversely affect (…) the safeguard mechanisms established at national level to secure the rule of law”.29
The Treaty basis for the Framework is Article 2 TEU, which lays out all the cornerstone values of the Union, as well as Article 49 TEU, which clarifies that in order to belong to the Union, the state has to respect the rule of law.30 It is also important that the Framework has been created as a procedure which shall precede the activation of Article 7 TEU, so that an action can be taken before all the conditions for the said provision are satisfied and that it does
21 Commission Recommendation (EU) 2016/1374 of 27 July 2016 regarding the rule of law in Poland
C/2016/5703.
22 Judgment K 47/15 of the Constitutional Tribunal. 23
Commission Recommendation 2016/1374 (n 21).
24 Ibid recital 8.
25 Letter of the Vice-President of the European Commission Frans Timmermans to the Polish Minister of Justice
Zbigniew Ziobro, Brussels 13 January 2016, BM/kr-Ares S(2016)192765.
26 Communication From the European Commission to the European Parliament and the Council - A new EU
Framework to strengthen the Rule of Law, Strasbourg 11 March 2014 COM(2014)158 final.
27 Ibid. 28 Ibid 4. 29
Ibid 6.
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not prejudice the powers of the Commission under Article 258 TFEU.31 The Rule of Law Framework thus allowed the Commission to take an instant action in July 2016, as a response to the developments in Poland, by the means of recommendations.
Further key legal changes which deepened the dispute with the Commission were four laws passed in July and December 2017: on National Council for Judiciary, on the National School of Judiciary; on the Ordinary Courts and on the Supreme Court. In the perspective of the Commission the laws fundamentally interfered with the principle of judicial independence and provided a threat to the Polish democracy.32 After all four Rule of Law Recommendations have been issued and given no constructive development in the matter as well as no will of conceding on the Polish side, the Commission initiated the procedure laid out in article 7 TEU and issued a Reasoned Proposal to the Council in accordance with article 7(1) TEU on the issue of the rule of law in Poland.33 As has already been mentioned above, it has also instituted infringement proceedings against Poland in accordance with the procedure laid out in 258 TFEU with regards to the law on the Ordinary Courts;34 law requiring the forced retirement of judges of the Supreme Court35 and the law on the disciplinary regime for judges.36 With regards to the law on the Supreme Court, the ECJ has already issued interim measures in December 2018, while the other issues are still in consideration by the Court.
CHAPTER II – Perspective of the European Commission
Commission’s conceptualisation of the definition of judicial independence shall be found in four recommendations addressed to Poland within the Rule of Law Framework, as well as in the Reasoned Proposal on article 7(1) TEU, which followed the unimplemented recommendations; and Reasoned Opinions and Letters of Formal Notice issued in the course of article 258 TFEU infringement proceedings, which shall be analysed in this chapter. In the listed documents the European Commission focused on discussing the dangers of the new legislative changes affecting the key Polish judicial institutions i.e. the Constitutional Tribunal, National Council for Judiciary, National School of Judiciary, Ordinary Courts and the Supreme Court. The structure of this chapter shall therefore mirror this approach and will
31 Rule of Law Framework Communication (n 26) 3.
32 Commission Recommendation (EU) 2017/1520 of 26 July 2017C(2017) 5320; and Commission
Recommendation (EU) 2018/103 of 20 December 2017 C(2017) 9050.
33 Reasoned Proposal (n 14). 34 29 July 2017.
35
2 July 2018.
8
discuss the changes introduced to the affected institutions and aim to answer the question why did the Commission perceive them as putting the independence of Polish judiciary in jeopardy. This will thus provide the answer as to what comprises the definition of judicial independence in the perspective of the European Commission.
Constitutional Tribunal
In its first and second recommendations the European Commission dealt with the dispute surrounding the Constitutional Tribunal, which was the first institution affected by the legislative changes. In its recommendations, the Commission has heavily relied and built its own assessment on the opinions of the Council of Europe Commission for Democracy Through Law (Venice Commission). Therefore, the opinions of the Venice Commission are also going to be brought up in the following chapter. Nevertheless, it is important to underline that even though the European Commission had recourse to the evaluation carried out by the Venice Commission, it drew its own conclusions and prepared a separate a line of argumentation.
In its opinion from March 2016 the Venice Commission referred to the Constitutional Tribunal Law passed on 22 December 2015, which amended the previous Constitutional Tribunal Act. Few aspects of the law have been discussed in the opinion. The contentious points included: the rule that the Tribunal shall (in most cases) deliver judgments as a full bench, consisting of thirteen out of fifteen judges with the quorum being set as two-thirds and not the simple majority, like it was before; that the cases shall be considered in the order they were filed; that the early termination of the judge shall be declared by Sejm and not the General Assembly of the Tribunal, as it used to be; that the President of Poland and Minister of Justice shall have the possibility to start disciplinary proceedings against a judge of the Tribunal.37 Finally, the December amendments removed previous provisions relating inter
alia to the independence of judges, the composition of the Tribunal or impossibility of a
re-election.38 As much as the changes relating to chronological order39 of cases or the new quorum and majority rules were declared to be an impediment mainly to the effectiveness of the Tribunal,40 which in itself is a danger for a properly functioning democracy, the other
37 European Commission for Democracy Through Law (Venice Commission) Opinion on Amendments to the
Act of 25 June 2015 on The Constitutional Tribunal of Poland, 11 March 2016 Opinion no. 833/2015CDL-AD(2016)001.
38 Ibid.
39 However, as the Commission stated, this provision could also adversely affect the independence as well. 40
“Crippling the Tribunal’s effectiveness will undermine all three basic principles of the Council of Europe: democracy (…); human rights (…); and the rule of law“ – Venice Commission Opinion (n 37) 16.
9
changes were seen by the Venice Commission as a threat to the independence of Tribunal - an even more dangerous development. The Venice Commission emphasised that engaging the executive branch into the disciplinary proceedings against Tribunal’s judges is a major threat to judicial independence.41 It also underlined that even though disciplinary proceedings against Constitutional Court judges are known in some European legal systems, e.g. Austria or Germany, nowhere it is the role of the executive to bring such proceedings.42 What was also seen as worrying in the amendments, was the provision which provided that the President or the Minister of Justice shall be entitled to lodge an application to the General Assembly of the Constitutional Tribunal to depose a judge in “particularly gross cases”, while the final decision on the removal from office would be taken by Sejm.43 Furthermore the Venice Commission argued that the removal of the explicit provisions of the previous act stipulating the requirement of judicial independence was not right and given the turmoil already created around the Tribunal, it provided a “wrong signal at the wrong time”.44
What is also striking in the Venice Commission assessment, is the analysis of the dismissal of the “October judges”45
appointed by the previous Sejm and the appointment of the new ones in November 2015. As an argument for the necessity of the new appointments, the Polish side presented the following line of thought: since the political opposition (Platforma Obywatelska & Polskie Stronnictwo Ludowe coalition), which comprised Sejm for the previous two terms of office (eight years) could at that time choose “its” own judges to the Tribunal, the Tribunal would mainly consist of the judges from the opposition, which hence gave the new ruling majority a mandate to equate that political bias in order to supposedly give effect to the principle of plurality.46 Crucially, the Venice Commission elaborated in its opinion that such explanation cannot be accepted, since it leads to a fundamental misunderstanding of the definition of judicial independence. Constitutional Tribunal, as any other court, shall comprise of politically neutral, non-affiliated judges and therefore any perception of the judges as “belonging” to one or another political group jeopardises that concept of independence and, as the Venice Commission concluded, simply equates the Tribunal with another chamber of the
41 Ibid 17. 42 Ibid.
43 Article 1(7) of the Law Amending the Law on the Constitutional Tribunal from 22 December 2015 (Ustawa z
dnia 22 grudnia 2015 r. o zmianie ustawy o Trybunale Konstytucyjnym Dz.U. 2015 poz. 2217).
44
Venice Commission Opinion (n 37) 17.
45 The three lawfully chosen judges.
46 Venice Commission Opinion (n 37) 21; Anne Sanders, Luc von Danwitz ‘Selecting Judges in Poland and
Germany: Challenges to the Rule of law in Europe and Propositions for a new Approach to Judicial Legitimacy’ (2018) German Law Journal 769, 781
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Parliament.47 As explained, the judges of the Tribunal, even though indeed chosen by Sejm have the “duty of ingratitude” to those who appointed them – they never represent the views of a particular party. This provides the very essence of their judicial independence.
Following the discussed developments, on 22 July 2016 the legislature passed an entirely new law replacing the previous act on the Constitutional Tribunal which was then followed up by two other laws passed in December 2016.48 Even though, as noted by the European Commission and the Venice Commission, there were some important improvements compared to the contentious provisions of the 22 December 2015 amendments,49 at the same time new provisions appeared which again put the independence of the judges in jeopardy.50 This included inter alia the possibility of the Public Prosecutor-General51 to effectively halt the examination of a case should he or she not be able to attend the hearing but nevertheless decide that their presence is necessary,52 as well as the procedure of presenting the candidates for the President and Vice-President of the Tribunal to the President of the country. As stated by article 194(2) of the Polish constitution, the President of Poland shall decide on which candidates will take up the said posts, by choosing from the candidates presented by the General Assembly of the Tribunal, who gained most support from the judges of the Tribunal. The new legislation, however, has created the post of an Acting President of the Tribunal, when the mandate of the previous one finishes, while the new one is not yet chosen. The choice of the Acting President shall be made by the President of the country “from amongst the judges of the Tribunal with the longest period in ordinary courts or in central government posts”,53
which as the European Commission has warned in its recommendation, gives a great power to the President of the country and also introduces arbitrary criteria, since the President would be free to choose a candidate experienced mainly in government posts rather than in the judiciary.54 Moreover, the provision enabled the three “December judges” to take part in the voting procedure for the presidential candidates, despite the fact that the Tribunal has
47 Venice Commission Opinion (n 37) 21.
48 Law on The Legal Status of Judges of The Constitutional Tribunal from 30 November 2016 (Ustawa dnia 30
listopada 2016r. o statusie sędziów Trybunału Konstytucyjnego Dz.U.2016 poz.2073) and Law on Organisation and Proceedings Before the Constitutional Tribunal (Ustawa z dnia 30 listopada 2016 r. o organizacji i trybie postępowania przed Trybunałem Konstytucyjnym Dz.U. 2016 poz. 2072).
49 Full bench requirement reduced to eleven instead of thirteen judges; quorum set as simple majority,
disciplinary proceedings no longer to be lodged by the President or the Minister of Justice.
50 Commission Recommendation 2016/1374 (n 21) para 40. 51
The post now also merged with the office of the Minister of Justice.
52 Commission Recommendation 2016/1374 (n 21).
53 Commission Recommendation (EU) 2017/146 of 21 December 2016 Regarding the Rule of Law in Poland
C(2016) 8950, para 57.
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previously ruled that their appointment was unconstitutional.55 The said law was therefore in a straightforward contradiction to the previous ruling of the Tribunal. The combination of the discussed changes led the Venice Commission, as well as the European Commission, to conclude that as an effect of those changes the separation between the three branches of power and thus at the same time the independence of the judges of the Constitutional Tribunal is endangered.56
Furthermore, it is important to notice that in its recommendations the European Commission appears to argue that even changes which are not per se directed towards judicial independence but simply hamper the effective functioning of the Tribunal, ultimately also create a threat to the principle of independence. Only an effective judicial review can provide a solid guarantee of the protection of democracy and any lack thereof can thus gradually lower the position of the Tribunal and reduce its role in the democratic process.
As stated by the Venice Commission in its second Opinion “Independent means free from external pressure and not subject to political influence or manipulation, in particular by the executive branch, including as concerns appointments and promotions, which must not be based on political or personal considerations. Judicial activities may not be supervised by the executive or other public bodies. All final judgments must be effectively and promptly executed”.57
It is very clear from the abovementioned opinions and recommendations that those elements were lacking in the newly introduced laws relating to the Constitutional Tribunal.
Ordinary Courts
In January 2017 the Polish government announced a complex reform of the Polish judiciary, which was meant to embrace the National School for Judiciary, National Council of Judiciary, the Ordinary Courts and the Supreme Court.58 Between June and December 2017 the legislature introduced four new laws relating to judiciary, three of which proved to be especially controversial for the European Commission and which are going to be discussed here. As was expressed by the Commission in its third recommendation, all of those laws
55 Rulings of the Constitutional Tribunal from 3December 2015 (K 34/15); 9 December 2015 (K 35/15) and 9
March 2016 (K 47/15)
56 Commission Recommendation (EU) 2017/146 (n 53).
57 European Commission for Democracy Through Law (Venice Commission) Opinion on the Act on The
Constitutional Tribunal of Poland, 14 October 2016 Opinion 860/2016 CDL-AD(2016)026, para 9.
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“contain[ed] a number of provisions which raise[d] grave concerns as regards the principles of judicial independence and separation of powers”.59
What was most worrying for the European Commission in relation to the Law on Ordinary Courts, was the influence that it gave to the Minister of Justice over the appointments and dismissals of the president of ordinary courts. According to the new law, the Minister gained the power to appoint and dismiss the presidents of ordinary courts at his discretion, with the only safeguard being that the dismissal could be blocked by a two-thirds qualified majority voting in the National Council for Judiciary.60 There were no exact criteria provided to which the Minister should adhere, which in effect gave him a lot of discretionary power over the presidents of the ordinary courts. This, according to the European Commission, created radical consequences for the independence of those presidents. Since in the Polish legal system the presidents, alongside their managerial functions also retain their judicial function, the Commission concluded that the power of the Minister over their careers might affect their independence while adjudicating cases.61 As explained in Commission’s recommendation “[f]or example, a court president who is called upon to deliver a judgment in a sensitive case against the State may feel the pressure from the Minister of Justice to follow the position of the State in order to avoid being dismissed as a court president”.62 Importantly, the Commission also takes note that the threat to independence also extends to ordinary judges, who would wish to become courts’ presidents in the future. Keeping in mind the prospect of their future careers, they might be inclined not to oppose the views of the Minister. For the Commission therefore, the prospect of the executive branch having a direct influence over the appointments and dismissals of courts’ presidents, was in contradiction to the principle of judicial independence.
National Council for Judiciary
The law on the national Council for Judiciary, which was initially vetoed by the President of Poland, however passed with amendments in December 2018, raised the concerns of the European Commission as to judicial independence, since it provided for the instant termination of the mandates of all members of the Council and created new rules for the future appointments of new members. Following the new legislation, fifteen out of twenty-five members of the Council shall be chosen by Sejm with no guarantee being stipulated that
59 Ibid para 13. 60 Ibid. 61 Ibid para 18. 62 Ibid para 20.
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those candidates shall be endorsed by the judiciary.63 As explained by the European Commission, it is the European standard that where the Council for Judiciary exists, its members shall be chosen by their peers.64 As noted, the Council is an especially significant organ for the independence of the whole judiciary across the country, since it has control over the “promotion, transfer, disciplinary proceedings, dismissal and early retirement”65
of all the judges in the state. Giving the Parliament a power over the members of the Council, thus indirectly also gives it the power over the whole national judiciary and enables it to politicise it, which according to the Commission is a major threat to its independence.
Supreme Court
The new law on the Supreme Court lowered the retirement age of the judges from 70 to 65, which would force 37% of them to retire. This, as emphasised by the European Commission, seen in conjunction with the reform of the National Council for the Judiciary discussed above, enables the Parliament to get a political influence over the new appointments to the Supreme Court. What is also seen by the Commission as the key element of judicial independence which has been violated, is the principle of irremovability of judges, which has been developed in the case law of the European Court of Human Rights as well as in the European standards.66 As emphasised, judicial independence requires sufficient guarantees, one of which is the irremovability. For this reason a group dismissal, not linked to a specific conduct, is a grave violation of judicial independence. Moreover, the judges who, according to the new law shall instantly leave their posts due to the new retirement age, would be entitled to ask the President of Poland for the prolongation of their term of office, however without any specific criteria being established for the President to decide on this issue. The European Commission thus concluded that the law is a violation of article 19(1) TEU (“Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”) as well as of article 47 CFR (right for a fair trial by an “independent and impartial tribunal previously established by law”)67
and referred it to the Court of Justice.68 In December 2018
63 Article 11a(2) of the Law on the National Council of Judiciary (Ustawa z dnia 8 grudnia 2017r. o zmianie
ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw Dz.U. 2018 poz.3) - the candidates shall be endorsed either by 25 judges or 2000 citizens.
64 Commission Recommendation of 20 December 2017 (EU) 2018/103 (n 32) para 31. 65
Ibid para 27.
66 Ibid para 6.
67 European Commission Press release ‘Rule of Law: Commission launches infringement procedure to protect
the independence of the Polish Supreme Court’ Brussels 2 July 2018.
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the Court issued interim measures and thus halted the application of the provisions lowering the retirement age.69
What was also a concern for the European Commission was the introduction of the new disciplinary regime for judges, which provided for the creation of an entirely new disciplinary chamber in the Supreme Court. The said chamber was appointed by the National Council for Judiciary, which, again seen in connection with the reform of the Council, enabled a political influence over the disciplinary judicial organ. This could thus be seen as an indirect attempt to threaten the judges, by exercising political control over them. Moreover, the new law enables the President of the Country (as well as the Minister of Justice in certain cases) to appoint an extraordinary disciplinary officer on case-by-case basis.70 Should the extraordinary officer be appointed to work on the ongoing disciplinary proceedings, the permanent disciplinary officer appointed by the College of the Supreme Court in a usual way, is automatically excluded from the given case.71
In its Letter of Formal Notice from 3 April 2019 launching the infringement procedure, the European Commission concluded that in practice the new Supreme Court Law led to detrimental effects. Crucially, the law has also led to a very concrete breach of EU law. As emphasised, the judges can now be subject to disciplinary proceedings “for the content of their judicial decisions”, including their referral of preliminary ruling questions to the Court of Justice.72 This therefore means that the obligations under article 267 TFEU have been breached.
Conceptualisation of judicial independence
It can be concluded that few key elements of the conceptualisation of judicial independence emerge from the stance of the European Commission. Firstly, it emphasised from the very beginning that effective judicial review is a crucial factor in the democratic system. Therefore the changes introduced to the Polish Constitutional Tribunal not only affected the guarantee of independence of its own judges, but also endangered the whole system of well-functioning independent judiciary nation-wide. Secondly, any interference of the executive in the
69 Court of Justice of the European Union Press Release No 159/18 on the Order of the Vice-President of the
Court in Case C-619/18 R Commission v Poland, Luxembourg 19 October 2018.
70 Articles 76(8) and (9) of the Law on the Supreme Court (Ustawa z dnia 8grudnia 2017r .o Sądzie Najwyższym
Dz.U. 2018 poz. 5) .
71 Article 76(8) of the Law on the Supreme Court; Commission Recommendation of 20 December 2017 (EU)
2018/103 (n 24) para 23.
72
European Commission Press release ‘Rule of Law: European Commission launches infringement procedure to protect judges in Poland from political control’ Brussels 3 April 2019.
15
appointment or dismissal of judges is unacceptable. Thirdly, there are certain guarantees for the post of a judge, such as irremovability, which have to be maintained for the judge to remain independent and impartial. Removal of any of those guarantees threatens that independence. Finally, in the legal system where the Council for Judiciary is established, there should be no political influence on its members. It is significant to reiterate here the part of the opinion of the Venice Commission, where it explained the major misunderstanding of the definition of judicial independence, when the Polish side resorted to the argument of the necessity of equating the political bias of the judges. As explained by the Venice Commission as well as European Commission, judges from the outset should be perceived as politically neutral and not acting as an extension of a certain political group, which can be summed up as the most meaningful message communicated by the European side in the ongoing dispute.
CHAPTER III - Perspective of Poland
In analogy to the preceding chapter, this one shall aim to analyse the Polish conceptualisation of judicial independence presented in the rule of law dispute. In order to analyse this conceptualisation, the replies of the Polish government for the Commission’s Rule of Law Recommendations will be analysed. Moreover a close look shall also be taken at an extensive document entitled “The White Paper on the Reform of the Polish Judiciary”,73 which was issued in March 2018 by the Chancellery of the Polish Prime Minister and is a comprehensive guide through the reforms, presenting the reader with the perspective of Polish government and its arguments in the ongoing dispute. The structure of the discussion shall mirror the one adopted in the previous chapter.
Constitutional Tribunal
In its response for the arguments of the European Commission regarding the Constitutional Tribunal, the Polish side emphasised the importance of the so called constitutional custom of
legislative silence; principle of pluralism and henceforth the necessity of rectification of the
alleged previous political bias of the institution. All of these elements were explained to be the safeguards of judicial independence, which as such was aimed to be protected and not
affected by the actions of the new parliamentary majority and the government.74
According to the arguments presented by the government, by appointing five judges in June 2015 the 7th Sejm broke the principle of legislative silence, which was previously upheld by
73
The Chancellery of the Prime Minister ‘White Paper on the Reform of the Polish Judiciary’ March 2018.
16
the Constitutional Tribunal in its rulings.75 According to the said principle, the outgoing Sejm should refrain from passing any laws regulating the electoral system to the state organs in the period of six months before the next elections.76 Even though it was acknowledged by the Polish side that in fact this principle mainly refers to the parliamentary electoral law, it argued that “(…) in a democratic state based on the rule of law it should also apply to elections to all the key state organs, not least the Constitutional Tribunal judges”.77 Given that the principle has been breached by the previous Sejm by adopting the new Constitutional Tribunal Law in June 2015, which enabled the contested appointment of five judges, the Polish side put forward that that appointment was hence from the outset unlawful and thus the new appointments had to be made by the 8th Sejm.78 Notwithstanding the fact that the Constitutional Tribunal held in its judgment form 3 December 2015 that three out of the five initial appointments were lawful, the Polish side argued that that it had a right to disregard this judgment, since the judgment only clarified that the law from June 2015 enabling the appointments was partially constitutional and partially not, and did not relate to the December appointments per se.79 In its reply to the first Rule of Law Recommendation, the Polish government stated that even though indeed, the Constitutional Tribunal judgment from 3 December referred to the obligation of the President of the country to take an oath from the three lawfully chosen “October judges”, the Tribunal cannot bind any national organs to take an action or to refrain from it.80 Furthermore the Tribunal can rule over the constitutionality of a given law but that cannot in itself create an obligation for other organs to follow that interpretation, as argued by the government.81
Following that line of reasoning further, only after the appointments made by the 8th Sejm the Constitutional Tribunal became truly effective and independent.82 As argued by the Polish side, the previous composition of the Tribunal did not reflect the principle of plurality, which by implication made it not independent. As emphasised, since members of the Tribunal have, from the beginning of its creation, been chosen by Sejm, it has always been a quasi-political
75
Judgments of the Constitutional Tribunal of 3 November 2006 (K 31/06) and of 28 October 2009 (KP 3/09).
76 The White Paper (n 73) 73. 77 Ibid.
78 Ibid. 79 Ibid 76. 80
Stanowisko Strony Polskiej w sprawie zalecenia Komisji Europejskiej z dnia 26 lipca 2016 roku dotyczące praworządności w Polsce (The stance of the Polish Side with regards to the Euroepan Commission Rule of Law Recommendation from 26 July 2016) 3.
81
Ibid.
17
body.83 For this reason the necessary political balance shall be upheld within the Tribunal in order to guarantee its independence, since given that it is politicised in its very framework, “it should never be overly dominated by one political side”.84 The conclusion which follows is that therefore it is justified to prevent a situation, whereby the majority of Tribunal judges is chosen by one political side, as to give effect to the principle of pluralism.85
Moreover, the Polish side put forward that the accusations of the Commission relating to the possible influence of the legislature on the judges of the Tribunal are groundless, since nothing has changed in the provisions relating to their irremovability.86 The following conclusion is thus that solely the law on irremovability of the judges is a guarantee of their independence from the political pressure.87 In relation to the provisions regulating the appointment of the acting President of the Tribunal, which raised concerns of the Commission with regards to judicial independence, the Polish government replied that article 197 of the Constitution88 leaves the legislature room for regulating the organisation of the Tribunal.89 The reply did not however refer to the said concerns over the threat to judicial independence that the new procedure posed according to the Commission.
Ordinary Courts
In its reply to the third Rule of Law Recommendation the Polish government emphasised that the new law did not lead to reducing the judicial independence but quite to the contrary - it enhanced it.90 According to the Polish side the reform had a positive impact on the efficiency of the courts, as the new law precluded the presidents of ordinary courts to move the judges between different sections of the court, which has previously been negatively affecting the independence of those judges, as argued in the document.91 Moreover, the new law introduced a system of random allocation of cases, which precludes allocating the cases to particular judges by the president of the court. According to the government this solution rectified the previous system which posed threats to the independence and impartiality of the judges, as a
83 Ibid 79. 84 Ibid. 85 Ibid. 86 Ibid 78. 87 Ibid.
88 Article 197 of the Polish Constitution: “The organization of the Constitutional Tribunal, as well as the mode of
proceedings before it, shall be specified by statute”.
89
Stanowisko strony polskiej na Zalecenie uzupełniające Komisji Europejskiej w sprawie praworządności w Polsce z 26 lipca 2017 roku (The stance of the Polish Side with regards to the Euroepan Commission Rule of Law Recommendation from 26 July 2017) para 4.
90
Ibid.
18
particular judge could have been deliberately chosen by the president of the court to adjudicate in a given case.92
In relation to the concerns of the Commission over the breach of the external safeguards of judicial independence by the possibility of unilaterally removing the president form their post by the Minister of Justice, the Polish side replied that this possibility does not infringe the irremovability of a judge, as the said president would not be deprived of his tenure as a judge but only of his post a president, which is a purely administrative task.93 The external safeguards of judicial independence shall therefore embrace the professional field of judges, whereby they are adjudicating in legal cases and not holding other administrative posts.94
National Council for Judiciary
With regards to the concerns of the Commission regarding the law on the Council for Judiciary, the Polish side argued that the primary aim of the reform was the democratisation of the Council.95 As to the new methods of appointing fifteen members of the Council by
Sejm, the Polish side put forward that this solution is safeguarded by the requirement of the
support of twenty-five judges or two thousand citizens, which is meant to create the necessary safeguards from the possibility of selection based on political criteria.96 Moreover the new method is an expression of the democratic legitimation (in the meaning of the Parliament being given the mandate of the citizens), which sits higher in the hierarchy than the legitimation provided by the judicial environment alone.97 As argued by the Polish government, the previous system gave rise to the situation, whereby in practice only judges from the higher instance courts could become members of the Council (as they would get the major support of the judicial environment), while the representatives of other courts, especially district courts, have been neglected in this process, which led to the underrepresentation of their voice in the Council.98 The new law therefore was designed to serve the purpose of defying nepotism and protectionism within the Council which has led to the image of “a closed, stand-alone professional corporation that does not serve society but
92 Ibid. 93 Ibid. 94 Ibid.
95 Stanowisko strony polskiej wobec Zalecenia Komisji Europejskiej w sprawie praworządności w Polsce z 20
grudnia 2017 roku (The stance of the Polish Side with regards to the European Commission Rule of Law Recommendation from 20 December 2017) 13.
96 Ibid 14. 97
Ibid 13.
19
puts itself above it”.99
As argued, none of the safeguards of independence would disappear due to the reform as, despite the fact that the law stipulated an instant termination of the mandates of all judges of the Council, all of those safeguards would remain to exist after the new members are chosen.100 Polish side has also pointed out that the mandate of thirteen out of fifteen appointed judges would have anyway expired at different times until March 2018 and this could in effect paralyse the Council, which therefore means that the termination of all mandates at once was a more effective solution.101 It can be concluded from the arguments presented, that an instant termination of all mandates and the new appointment procedures, which caused the concerns of the Commission, can be justified for the sake of a more various judicial representation in the Council and its better efficiency.
It is quite striking in the Polish reply, that a great emphasis is put on the political representation in the Council, which the new law would guarantee.102 On the one hand the Polish side emphasised that deputies would not choose from among political candidates, since judges cannot belong to political parties,103 however at the same time it explained that “in order to secure proper representation for opposition candidates, the election would be held by a three-fifths majority, with each parliamentary grouping guaranteed the election of at least one candidate it endorses.”104
This therefore gives rise to the conclusion that, again, the government perceives judges as, from the outset, being affiliated to a specific political group.
Supreme Court
When it comes to the gravest concern of the Commission in relation to the Supreme Court law, i.e. the forced retirement of a group of judges, the Polish government argued that the major aim of that reform was the “de-communisation” of Supreme Court’s personnel as well as changing “the Polish judiciary’s corporatist culture” by “rejuvenating the judicial corps”.105
A meaningful part of the White Paper focuses on the need to replace the judges who adjudicated during the martial law.106 As underlined in the document, there are still a few judges in the Supreme Court, who delivered their judgments during that time and, as claimed, there is an urgent desire within the society to rectify that.107 In its reply to the fourth Rule of
99 Ibid. 100 Ibid 63.
101 The stance of the Polish Side (n 95) 16. 102 Ibid.
103
Ibid 14.
104 The White Paper (n 73) 48. 105 Ibid.
106
13 December 1981 – 22 July 1983.
20
Law Recommendation, the Polish side emphasised that in accordance with article 180 of the Polish Constitution, the essence of judicial independence is the irremovability of judges and their entitlement to the full remuneration, should there be a reorganisation of the court system.108 In the perspective of the government, these guarantees were not interfered with by the Supreme Court law, since all of the judges forced to retire after its implementation, would keep their constitutional status of a judge and therefore also the abovementioned guarantees – they would simply not adjudicate anymore.
Furthermore, it was argued that the power of the President over the possibility of prolonging the judicial tenure, after the judge would have reached new retirement age, is also not a threat to independence, since judges who are at the end of their career, are in fact not susceptible to an undue pressure from those deciding on the prolongation.109
When it comes to the concerns over the disciplinary regime introduced by the Supreme Court Law, the Polish side has argued that the procedure of the appointment of a disciplinary officer by the President of Poland shall not be seen as breach of the division of powers or a threat to judicial independence, since it is analogous to the procedure of the appointment of judges, who are also appointed by the President (after being chosen by the National Council for Judiciary). Moreover, the cases shall be heard by an independent chamber of judges and not the disciplinary officer mentioned above, who is therefore not granted any decisive power over the verdict.110 In relation to the creation of the disciplinary chamber, the Polish government has refuted the accusations of the Commission over the possible lack of independence of its members, since, as it emphasised, the judges would be granted the same constitutional judicial guarantees as all the other judges of the Supreme Court.111 Given that it has also denied Commission’s remarks regarding the politicisation of the National Council for the Judiciary, the government did not refer to the fear of the politicised disciplinary chambers in its reply.
Conceptualisation of judicial independence
In summary, it can be said that what predominantly stems from the stance presented by the Polish side in the rule of law dispute is the conclusion that Polish judiciary is in an urgent need of reform and therefore somehow - ends justify the means. Great emphasis is put on
108 The stance of the Polish Side (n 95) 6. 109 The White Paper (n 73) 39.
110
The stance of the Polish Side (n 95) 12.
21
explaining why the judicial system has so far been ineffective, and why does it need reform, as well as on the historical context of the reforms i.e. the so called “de-communisation”.112 It is also underlined that the reform of the judiciary is widely backed by the society, which can be seen in the social research conducted113 as well as in the fact that people democratically gave the mandate to Prawo i Sprawdiedliwość in the 2015 elections, which hence provides the legislature with a right to proceed with the reforms announced in the electoral campaign.114 Crucially, what is also visible in the discussions over the concept of judicial independence is that, according to the Polish side, the judiciary in Poland115 in fact never enjoyed full independence from politics and through the past thirty years it has created a closed environment with a low trust of the society.116 Henceforth, the reforms need to be radical, vast and comprehensive in order to embrace the identified problems. What is also striking, when it comes to, for example, the Constitutional Tribunal or the Council for Judiciary, the Polish side quite straightforwardly explains that the political bias in those institutions needs to be equated. This hence shows a manifest divergence with the conceptualisation presented by the European Commission, which puts emphasis on the necessity of the apolitical nature of the judiciary. What is striking, the Polish side seems to discredit the idea that the judiciary should be neutral from the outset and that it should remain so in its work. It stems, that for the Polish government the judges are always somewhat politically biased and the idea that they might enter the courtroom without that bias seems impossible. This is therefore an important feature which underlays the Polish argumentation.
CHAPTER IV– Literature - setting the benchmark
Any theoretical discussion on the concept of judicial independence shall most definitely start with John Locke, who has famously elaborated on the idea of separation of the state powers into legislative, executive and judiciary.117 Nevertheless, Locke did not describe the three powers as equal, and accorded most weight to the legislative.118 The theory was later expanded by Montesquieu in his “Spirit of the Laws”, where he explained that all three powers shall act with an equal force, independently of one another. He also stated that “when
112 Ibid.
113 The White Paper (n 73) 89. 114 Ibid.
115
Speaking of the period after year 1989 – the fall of communism.
116 The White Paper (n 73) 22.
117 John Locke Two Treatises of Government (1689). 118
Sam James Ervin Jr ‘Separation of Powers: Judicial Independence’ (1970) Law and Contemporary Problems 108.
22
the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty (…). Again, there is no liberty, if the judiciary power be
not separated from the legislative and executive.”.119 The oft-quoted passage, which is said to be the foundation of the doctrine of tripartite division of powers, very importantly lays out the idea that the three powers should not be held by the same personnel and it also emphasises the notion of judicial independence, crucial for this work.
Up until today, many other thinkers have developed and added to the theory, while the requirement of an independent judiciary has become a cornerstone of all democratic systems. It is regarded as the safeguard for the citizens to be treated as equal before the law.120 In fact, lack of judicial independence signifies autocracy, despotism and simply equates to lack of democracy. In that context Lord Bingham said that “there are countries in the world where all judicial decisions find favour with the government, but they are not places where one would wish to live”.121
Practices such as telephone justice were part of reality behind the Iron Curtain and therefore, as emphasised by Cross, judges who decide upon instructions of politicians simply do not decide on the basis of law.122
As argued by Allan, lack of judicial safeguards against the abuses of public officials seriously threatens the rule of law.123 In order for the separation of powers to be efficient and undisturbed, judicial independence needs to be protected in the first place.124 Should the judiciary be truly independent, it cannot simply be an extension of the political actors governing the state.125 That is why, as explained by Finn, transitional democracies focus so immensely on the proper development of an independent judiciary, which is to protect the country from the danger of repeating the past.126
Melton and Ginsburg said that “judicial independence (…) has become like freedom: everyone wants it, but no one knows quite what it looks like or how to get it, and it is easiest
119 Montesquieu The Spirit of the Laws (1748) Book XI. 120 Sanders and von Danwitz (n 46) 789.
121
Lord Thomas Henry Bingham ‘The Rule of Law’ (2007) The Cambridge Law Journal 67, 80.
122 Frank Cross ‘Judicial Independence’ in Gregory A. Caldeira, R. Daniel Kelemen, and Keith E. Whittington
(eds.) The Oxford Handbook of Law and Politics (OUP: 2008) 559.
123 Trevor Robert Seaward Allan Constitutional Justice (OUP: 2001) 43.
124 Daniela Piana ‘Beyond Judicial Independence: Rule of Law and Judicial Accountabilities in Assessing
Democratic Quality’ (2010) Comparative Sociology 40, 43.
125 Erik S. Herron and Kirk A. Randazzo ‘The Relationship Between Independence and Judicial Review in
Post-Communist Courts’ (2003) The Journal of Politics 422, 423.
126
John E. Finn ‘The Rule of Law and Judicial Independence in Newly Democratic Regimes’ (2004) The Good Society 12, 14.
23
to observe in its absence”.127
The aim of this chapter shall therefore be to discuss the conceptualisation of the ideal provided by the academic literature and analyse the European and Polish conceptualisations presented above in light of that discussion. In this regard, it is important to point out that there are many different definitions and theories of judicial independence in the literature and it is outside the scope of this very work to analyse all of them. Therefore two aspects, which are most relevant for the purpose of the present discussion, will be analysed. The focus shall be put on the theory of de jure and de facto independence, as well as on the meaning of judicial accountability.
Judicial independence de jure and de facto
Traditionally, the literature provides a distinction between de jure and de facto judicial independence.128 The former concept refers to the formal conceptualisation of independence i.e. the rules and standards which shall be embraced by the legal framework in order to guarantee the independence of the judiciary. The latter notion on the other hand, explains the actual; practical state of judges’ independence, which is measured by several indicators. As explained by Rios-Figueroa and Staton,129 the indicators of de jure independence include
inter alia “fixed tenure, multilateral appointment procedures, budgetary autonomy, and [the
existence of] judicial councils”.130
Melton and Ginsburg identify six, according to them most important, de jure constitutional requirements as: statements of judicial independence; life tenure; selection and removal procedures; limited conditions for removal and salary insulation.131 As argued by Ferejohn, these formal safeguards are necessary in order to make sure that judges are not influenced by the fear of personal consequences for their decisions.132
When it comes to de facto independence, Rios-Figueroa and Staton note that it is a behavioural concept and encompasses two sub-concepts. Firstly, that judges are not influenced in an undue way while adjudicating, which is an expression of their autonomy.133 Secondly, the concept also denotes how judicial decisions are implemented.134 Should they be
127 James Melton and Tom Ginsburg ‘Does De Jure Judicial Independence Really Matter?: A Reevaluation of
Explanations for Judicial Independence’ (2014) Journal of Law and Courts 187.
128
Bernd Hayo, Stefan Voigt ‘Explaining de facto judicial independence’ (2007) International Review of Law and Economics 269; Julio Ríos-Figueroa, Jeffrey K. Staton ‘An Evaluation of Cross-National Measures of Judicial Independence’ (2014) Journal of Law Economics and Organization 104.
129 Rios-Figueroa and Staton (n 128) 106. 130 Ibid 107.
131
Melton and Ginsburg (n 127) 195.
132 John Ferejohn ‘Independent Judges, Dependent Judiciary: Explaining Judicial Independence’ (1999) Southern
California Law 353, 354.
133
Rios-Figueroa and Staton (n 128) 107.
24
ignored and not adhered to, there is no de facto component.135 This second sub-concept is therefore an expression of influence.136 As it is explained in the Working Paper of the Netherlands Council for Judiciary, de facto independence is only real when the political actors fully comply with the judicial decisions, even though they are not in line with their own agenda.137 Importantly, another measure of de facto independence is also the perception of judges themselves, as well as of the society.138
Both de jure and de facto conceptualisations of judicial independence provide an interesting perspective for discussion, when it comes to the context of the Polish crisis described above and shall therefore serve as a lens for the further analysis.
Melton and Ginsburg say that one might easily assume that de jure independence straightforwardly leads to de facto independence, however, interestingly enough there is a vivid academic debate on that issue.139 Piana emphasises that the existence of the formal guarantees is pivotal for the effectiveness of judicial independence.140 In a logical way, de
jure usually precedes and enables de facto, nevertheless the question which remains, is,
whether the latter can be equated with the former. On this account, Hayo and Voigt find in their empirical study that, indeed, there is a positive correlation between de jure and de facto independence.141 Notwithstanding the fact that the authors emphasise the importance of few other factors in influencing the growth of de facto independence,142 they do acknowledge that there is, in general, a positive relationship between one and another.143 As a response to this argument, Melton and Ginsburg claim that there is no such correlation and enhancing de jure might not give effect to de facto.144 In fact, Rios-Figueroa and Staton find that the two are even negatively correlated.145 This thesis is also in line with the earlier studies, such as the one of Smithey and Ishiyama, who researched the judicial activism of constitutional courts in
135
Ibid.
136 Ibid.
137 Frans van Dijk, Frank van Tulder and Ymkje Lugten ‘January 2016, Netherlands Council for the judiciary
Working Paper’ 3.
138
European Network of Councils for the Judiciary (ENCJ) ‘2017-2018 Independence, Accountability and Quality of the Judiciary Report’11.
139 Melton and Ginsburg (n 127) 188. 140 Piana (n 124) 43.
141 Hayo and Voigt (n 128). 142
E.g.“(…) legal confidence of the public, extent of democratization, degree of press freedom, and the religious beliefs of the population” ibid.
143 Hayo and Voigt (n 128). 144
Melton and Ginsburg (n 127) 188.
