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Blog post by Martin Sunnqvist, Associate Professor of Legal History, Lund University, Former District Judge, Malmö City Court, member of the board of the Swedish Judges’ Association.
Through the film, the audience could follow Polish judges who strive to protect their independence, the rule of law and the protection of human rights. We did not only get a sense of the threats against the independence of judges, but – more importantly – we saw how the judges struggle both in their professional capacity, as members of judges’ associations and as individuals to protect judicial ethics. To achieve this, the judges cooperate with civil society – for example at music festivals – and with other organisations within and outside Poland.
In Poland, judicial independence and the rule of law have backslided since the so-called Law and Justice party (PiS) came to power in 2015. The Polish judge Dorota Zabłudowska has recently written an article about the development of these last years. The first step was to elect three persons for judicial positions in the Constitutional Tribunal, positions which were already occupied by judges who had been elected earlier. In 2017, proposals were made intending to increase the influence of the Minister of Justice on the appointment of court presidents and vice-presidents and members of the National Council of the Judiciary, to reduce the retirement age of judges and to increase the power of the Minister of Justice in relation to the Supreme Court.
This caused mass protests all over the country, and the judges realised how important it is to maintain a dialogue with civil society. As a result of the protests, President Andrzej Duda vetoed the proposals except the one on the appointment of court presidents and vice-presidents. The Minister of Justice, who is also Prosecutor General, took control of the administration of the courts through replacing 137 presidents and vice-presidents with people who were loyal to the ruling party and who then often participated in the repression of independent judges.
Later in 2017, a new type of disciplinary proceedings against judges was introduced. The new disciplinary chamber of the Supreme Court has been widely criticised for not being a court established by law, not least by the European Court of Human Rights. The retirement age of judges of the Supreme Court was reduced so that the most experienced Supreme Court judges should have to leave their offices, among them First Supreme Court President Małgorzata Gersdorf, who however refused to retire. Also at the end of 2017, the National Council of the Judiciary was subordinated to the government. This meant that the procedures for selection and promotion of judges no longer met the criteria of independence.
In 2018, the government introduced a new law forbidding judges to examine whether the members of a court have been properly appointed. This was in order to undermine the judgments of the European Court of Human Rights and the Court of Justice of the European Union establishing that judges were no longer being appointed in an independent procedure. The new law was widely called the “Muzzle Law”. Following this, the “March of a Thousand Robes” was organised by the Polish judges’ association Iustitia and others.
Many judges were suspended and had their salaries reduced in disciplinary proceedings, for example for examining whether members of a court had been properly appointed. One of them, whom we also met in the film, is Igor Tuleya. He was suspended because of his judgment ordering the prosecutor to investigate alleged violations of law by the Law and Justice party during a parliamentary voting on the budget and for announcing his judgment in front of the cameras. Another is Waldemar Żurek, whose term of office as a judicial member of the National Council of the Judiciary was terminated. As the spokesperson of that council, he had pointed to the threats to the rule of law and judicial independence that were stemming from the government’s proposals.
Normally, we see judges in their professional capacities only. In the film, we see them also as individuals, being personally affected – with consequences for physical and psychological health – by not being able to fulfil their duties as independent judges. This sends a clear and thought-provoking message: The physical and psychological health of these judges also serves as a metaphor for what society would be like if the independence of judges, and the rule of law, and thus the protection for human rights, would break down in Europe.
Are the Polish judges brave? Or do they only do their duty? Waldemar Żurek brought the termination of his office as spokesperson to the European Court of Human Rights, which made clear that judges do not only have a right to freedom of expression to discuss the functioning of the justice system, but also a duty to speak out in defence of the rule of law and judicial independence when those fundamental values come under threat. The Consultative Council of European Judges clarified at the end of 2022 that if judicial independence is threatened, the judiciary must defend its position fearlessly, and that this applies to every judge.
Since the Middle Ages, it has been held in judicial oaths and other texts that fear is not an acceptable reason for a judge to hand down a wrongful judgment. The ‘fear’ that has to be avoided is fear in relation to the parties as well as fear in relation to powerful people outside of the court room. Thus, that judges have to be fearless is a common European value with a very long history. The recent development reminds us that the question is not about being brave or only doing one’s duty as a judge – on the contrary, judges have a duty to be fearless, to be brave. The Polish judges in Judges under Pressure thus set an important example for judges in the rest of the world.
Dorota Zabłudowska, The Battle for Judicial Independence in Poland, 2017-2022: http://www.storiacostituzionale.it/doc_44/Zab%C5%82udowska_GSC_44_2022.pdf
Żurek judgment ECHR: https://hudoc.echr.coe.int/eng?i=001-217705
CCJE Opinion no 25 (2022): https://rm.coe.int/opinion-no-25-2022-final/1680a973ef%0A%0A