The Washington PostDemocracy Dies in Darkness

Poland’s judges boycott Supreme Court posts, accusing the government of a takeover bid

A guard walks into the Supreme Court in Warsaw. (Kacper Pempel/Reuters)

WARSAW — A seat on the Supreme Court is a dream job for any judge, and right now Poland is giving them away by the dozen.

This summer, the country is seeking to fill 44 vacancies, with more expected in coming months. The positions come with prestige, power and chambers in the court building, a modern Warsaw take on a Greek classic that sits adjacent to a memorial to the city’s doomed anti-Nazi uprising.

What the jobs don’t have is many takers. In a land of some 10,000 judges, judicial applications barely exceed the number of openings.

The lack of interest reflects the nearly unanimous opposition of Poland’s black-robed jurists to what they see as an attempted hostile takeover of the judiciary by the ruling party. Critics say that the process, which has been underway for three years, is culminating with a bid to pack the country’s highest court with cronies and opportunists.

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Rather than seek the Supreme Court posts, the vast majority of judges are boycotting them.

They don’t expect to stop the appointments. But they want no part of a development they argue will mark the death of the independent court system nearly three decades after the fall of communism.

“The selection of new judges will be a pure fiction,” said Dariusz Zawistowski, chief justice in the Supreme Court’s civil division. “And with it, this institution will become completely politicized. The inheritance of 1989 — what we were most proud of — will be gone.”

The takeover has the potential to dramatically reshape Poland, a nation of 39 million that is the largest of the Central European countries once locked behind the Iron Curtain.

Until recently, it was also one of the most successful, having navigated a transition to Western-style democracy after the Soviet Union unraveled.

But as with other countries in the region, most notably Hungary, Poland has turned toward autocracy in recent years.

The right-wing Law and Justice party has changed Poland in other ways, transforming the media landscape and introducing a new school curriculum. But the judicial changes have been the most far-reaching.

With a pliant Supreme Court, critics say, Law and Justice will have a free hand to govern Poland in the manner of the old Communist Party: potentially rigging national elections due next year, punishing opponents and acting without fear of judicial restraint.

Social video showed protests opposing constitutional changes to the court system in July in Warsaw and Wroclaw, Poland. (Video: The Washington Post)

“They’ll be able to reorganize the entire country,” said Igor Tuleya, a Warsaw-based district court judge and outspoken defender of judicial independence. “One party will be running Poland until the end of the world.”

Perhaps the largest remaining obstacle in Law and Justice’s path is the European Union.

The E.U.’s executive arm, the European Commission, this month threatened to sue Poland for violating the bloc’s rules limiting political interference in the judiciary.

Meanwhile, the Polish Supreme Court took the extraordinary step of appealing to another E.U. body — the European Court of Justice. It asked the European court to intervene against legal changes that could force dozens of judges, including the chief justice, into early retirement.

The commission also has launched an investigation into whether the Polish government’s actions are fundamentally at odds with E.U. values. Possible penalties include the loss of E.U. voting rights.

But the slow-moving wheels
of Brussels-based bureaucracy mean it could take months, even years, for Europe to act. Poland is forging ahead with its Supreme Court overhaul plans in the coming weeks. 

“It’s the ultimate example
of court-packing,” said Marcin ­Matczak, a law professor at the University of Warsaw. “And they want to do it before the [European Court of Justice] can say anything about it.”

Even if Europe’s top court does act, leading Polish officials have suggested they may resist.

“Every country has a right to set up its own legal values with its own traditions,” Polish Prime Minister Mateusz Morawiecki told European lawmakers last month.

As the party’s name would suggest, Law and Justice has taken a keen interest in the workings of the Polish judiciary. 

Since coming to power, the party first reshaped the Constitutional Tribunal, which sits alongside the Supreme Court at the top of Poland’s judicial hierarchy. Then it overhauled the National Council of the Judiciary, which was set up to safeguard judicial independence.

In both cases, the government gave politicians ultimate control and packed the panels with sympathetic judges. Now, critics assert, it is pursuing its ultimate aim: control of the Supreme Court.

The government has defended its moves as the necessary reform of a system that is beset by inefficiency and, most important, still carries remnants of the pre-1989 regime. Lowering the retirement age from 70 to 65, officials have said, will help push out holdovers from the communist era. 

But critics don’t buy it. Poland long ago put its judges through a strict screening process that eliminated those deemed to have been especially acquiescent to state control.

Law and Justice itself is hardly free of once-loyal apparatchiks. 

“They have just as many communists in their own ranks as there are on the other side,” said Jaroslaw Kuisz, editor in chief of Kultura Liberalna magazine.

The Supreme Court vacancies arise not only from the forced retirement of judges older than 65. They also stem from the creation of two new units within the court, one of which will have wide powers to oversee elections. The additions will increase the total number of Supreme Court justices to 120.

When the government tried to push through even more dramatic changes to the courts last summer, hundreds of thousands of people demonstrated nationwide. President Andrzej Duda, a Law and Justice ally, surprised many by vetoing the bill. 

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But that, as it turned out, was a mere strategic retreat. When the president signed revised legislation in July, the protests were far smaller.

“One of the strategies of the ruling party is to make people tired of such an abstract concept as the independence of the ­judiciary,” said Kamila Gasiuk-Pihowicz, an opposition lawmaker.

Judges, however, have not lost their resolve. 

The Supreme Court’s chief justice, Malgorzata Gersdorf, has said she will reject efforts to forcibly retire her. A showdown could come this fall, when the government tries to seat her replacement.

The broader legal community, meanwhile, has registered its disapproval by sitting out the selection process for new Supreme Court judges. Despite a record number of vacancies — at least 58 are expected this year — only about 70 judges have applied. Of those, the largest number come from the regional courts, the lowest level in Poland’s judicial system. 

The field also includes about 130 nonjudicial candidates — including lawyers, notaries and ministry officials — after the government loosened the eligibility criteria. Many have close ties to Law and Justice.

“The best judges are not competing,” said Adam Bodnar, Poland’s Commissioner for Human Rights. “If you are a judge who believes in democratic values, who believes in the constitution, then you regard this competition as a sham, and you don’t want to participate.” 

Maciej Mitera, a member of the government-appointed National Council of the Judiciary, blamed judicial associations for bullying their members into not applying. He said they, not the government, were the true threat to judicial independence.

“If I want to become a candidate, how should I feel when other judges threaten me?” he asked. 

Mitera said the council, which selects the new judges, will meet in mid-September and should be able to make its picks within a few days. 

But some say the decisions already have been made.

Piotr Gaciarek is among a group dubbed “the kamikazes” by the Polish media. They are judges who have applied for the Supreme Court but who don’t expect to get a job. 

Gaciarek, a 44-year-old district judge and advocate for judicial independence, said he is more likely to be disbarred for insubordination than be elevated to the top court. 

To him, it’s an important show of defiance. But also, he acknowledges, a small one.

“The kamikazes delayed the invasion of Okinawa,” he said, referring to Japan’s World War II suicide fighter pilots. “They didn’t stop it.” 

Magdalena Foremska contributed to this report.

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