EXPLAINER: Free courts at stake as EU mulls Poland funding

Poland’s prime minister recently asserted that the vast majority of Polish judges under scrutiny by a controversial judicial chamber were drunk drivers, rapists or thieves.

That claim was quickly rejected by nearly 60 judges being investigated by the so-called Disciplinary Chamber at the Supreme Court of Poland.

In an open letter to Prime Minister Mateusz Morawiecki, they said none among them had committed crimes, and all were instead being targeted for defending judicial independence.

Their fate — and the independence of Polish courts more broadly — is at the heart of a dispute with the European Union, which has withheld billions of euros in pandemic recovery funds to Warsaw over the matter.

Here is a look at some of the key issues at play as European Commission President Ursula von der Leyen visits Warsaw on Thursday to discuss the matter.

WHAT LEVERAGE DOES THE EU HAVE?

For months, the EU has prevented the government in Warsaw from accessing its share of the bloc's pandemic recovery funding over the issue of judicial independence.

Poland badly needs the money as it struggles to absorb around 2 million Ukrainian refugees at a time of nearly 14% inflation.

The European Commission, which is the EU’s executive branch, finally approved Poland’s pandemic recovery plan Wednesday night but said the release of nearly 36 billion euros ($38.5 billion) in grants and loans would depend on Warsaw reforming its judiciary.

Some are accusing the commission of capitulating to Warsaw, only days after it gave in to Hungary’s authoritarian leader by giving Budapest a near-total exemption from an oil embargo on Russia.

It approved Poland's recovery fund as Warsaw has held up a plan to impose an EU-wide minimum 15% tax rate on multinationals.

WHAT DOES THE EU SEE AS THE PROBLEM?

When the governing Law and Justice party first held power, from 2005 to 2007, it saw its ambitions for a conservative remake of Poland derailed by the courts. After the party returned to power in 2015, leader Jaroslaw Kaczynski set about ensuring it had more compliant courts before pushing through other changes.

Once the party gained near-total control over the Constitutional Tribunal, it harnessed it to help enshrine conservative values in the law.

In an example of the court's power to affect regular citizens, it ruled in late 2020 that abortion of congenitally damaged fetuses — previously allowed under the law — was unconstitutional.

The ruling, which further restricted one of Europe's strictest abortion laws, triggered the largest protests in Poland's 30 years of post-communist history.

HOW HAS POLAND'S GOVERNMENT TARGETED JUDGES?

Two other key areas of controversy center on how judges are selected, and how they can be disciplined by being stripped of having their powers to sit in court and issue judgements.

The ruling party changed the rules governing the body which appoints judges to courts, the National Council of the Judiciary. It was established to ensure judges' independence, but since 2018 it has come under the political control of the ruling party. Some of the judges the council has appointed sit on the Disciplinary Chamber of the Supreme Court.

Last year a European umbrella group, the European Network of Councils for the Judiciary, expelled the Polish council, saying it no longer safeguarded the independence of the judiciary or individual judges.

The EU court ruled last year the Disciplinary Chamber to be illegal and ordered Poland to pay a fine of 1 million euros per day fine as long as it operates.

ARE POLISH JUDGES HONEST?

Dariusz Mazur, a Krakow judge, vice-president and the spokesman of Themis, an association of judges, said Polish judges have for years been the target of a disinformation campaign by the ruling party which seeks to discredit them by unfairly depicting them as corrupt.

He recalled a state-funded 2017 billboard campaign that sought to justify new judicial laws by citing the case of a judge who shoplifted. “The information was true, but the judge was already retired for many years and was mentally ill,” he said.

Mazur said that only 10% of current disciplinary proceedings involve actual misconduct by judges, while 90% are politically motivated proceedings against judges who defend the independence of the judiciary.

Mazur himself is the subject of four disciplinary proceedings over public statements in defense of an independent judiciary.

John Morijn, a law professor at the University of Groningen in the Netherlands, said that in the years before Law and Justice won power in 2015, Polish courts had a reputation for being slow but not corrupt.

The allegations made by ruling authorities amount to “a witch hunt against judges,” he said.

WHAT DOES THE GOVERNMENT SAY?

The Polish government has repeatedly denounced EU court rulings and attempts to link funding to democratic behavior as attacks on the country’s sovereignty.

It argues that EU institutions have no right to interfere in judicial matters and that Warsaw has the right to shape its own legal system.

In fact, EU member states are free to organize their own judiciaries as long as their systems respect the principle of judicial independence.

WHAT CHANGES DOES THE EU WANT?

The European Commission has described “milestones" Poland should reach to unlock funds. These include abolishing the Disciplinary Chamber, reforming the disciplinary regime and reinstating unlawfully dismissed judges.

None of these conditions have been met.

A plan approved by parliament last week abolishes the Disciplinary Chamber and replaces it with a Chamber for Professional Accountability that would operate in much the same way. It would be filled with judges chosen by the disputed National Council of the Judiciary.

And only one suspended judge, Pawel Juszczyszyn, has so far had his suspension lifted. After 839 days, he returned to work at the District Court of Olsztyn in recent days only to learn that he was being transferred from working on civil law cases — his field for more than 20 years — to family law. He was also ordered to go on leave.

“These decisions are made in gross violation of the law,” Juszczyszyn said Wednesday, vowing to fight them.