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Civil Society Organizations for and with the Courts and Judges-Struggle for the Rule of Law and Judicial Independence: The Case of Poland 1976-2020

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Abstract

During the rule of law backsliding crisis in Poland since late 2015, Civil Society Organizations (CSOs) have been active in the struggles to defend judicial independence. CSOs cooperate closely with judges and support their ‘judicial resistance’. This Article has three main objectives: describe and analyze the relationship between judges and CSOs; show the evolution — both continuity and discontinuity in their relations over time; assess whether CSOs’ activities are of any practical significance and therefore worth attention. The CSO-judicial relationship is analyzed for three periods: 1976–1989, the years before the transformation of Poland from a ‘people’s republic’ to a democracy; 1989–2015, the time of building liberal democracy and the rule of law; 2015–2020, the time of defending the rule of law from a populist attack. Drawing on sources including years of participant observation providing unique and insider knowledge, the author analyzes the activities and outputs of CSOs and judges focusing on their interactions and cooperation. The author argues that CSOs play a significant role in the struggle for the rule of law and judicial independence. This Article demonstrates that CSOs’ current engagement and input is not an extraordinary, ad hoc phenomenon, but rather one that arose from the previous interactions between the judiciary and civil society. The author argues that what we witness in Poland is an unprecedented phenomenon, both in the character of the relationship between judges and CSOs, and the scale and diversity of their cooperation. At the same time, the author claims that CSOs are underappreciated, including by academia, their work is taken for granted, and their role in the legal complex can be seen as a partly lost opportunity. If noticed, appreciated, and supported CSOs activities and their role could be more meaningful.
Forthcoming article in the German Law Journal. Cite as:
Bojarski, L. (2021). Civil Society Organizations for and with the
Courts and JudgesStruggle for the Rule of Law and Judicial
Independence: The Case of Poland 19762020. German Law
Journal, 22(7). https://doi.org/10.1017/glj.2021.72
Ge rm an L aw J o ur na l
Civil Society Organizations for and with the Courts and Judges
Struggle for the Rule of Law and Judicial Independence: The
Case of Poland 19762020
Łukasz Bojarski1
1Doctoral Research Fellow, University of Oslo, Oslo, Norway
Corresponding Author Email: lukasz.bojarski@jus.uio.no
Abstract
During the rule of law backsliding crisis in Poland since late 2015, Civil Society Organizations
(CSOs) have been active in the struggles to defend judicial independence. CSOs cooperate
closely with judges and support their ‘judicial resistance’. This Article has three main
objectives: describe and analyze the relationship between judges and CSOs; show the
evolution both continuity and discontinuity in their relations over time; assess whether
CSOs’ activities are of any practical significance and therefore worth attention. The CSO-
judicial relationship is analyzed for three periods: 19761989, the years before the
transformation of Poland from a ‘people’s republic’ to a democracy; 1989–2015, the time of
building liberal democracy and the rule of law; 20152020, the time of defending the rule of
law from a populist attack.
Drawing on sources including years of participant observation providing unique and insider
knowledge, the author analyzes the activities and outputs of CSOs and judges focusing on
their interactions and cooperation. The author argues that CSOs play a significant role in the
struggle for the rule of law and judicial independence. This Article demonstrates that CSOs’
current engagement and input is not an extraordinary, ad hoc phenomenon, but rather one
that arose from the previous interactions between the judiciary and civil society. The author
argues that what we witness in Poland is an unprecedented phenomenon, both in the
character of the relationship between judges and CSOs, and the scale and diversity of their
cooperation. At the same time, the author claims that CSOs are underappreciated, including
by academia, their work is taken for granted, and their role in the legal complex can be seen
Łukasz Bojarski is a Doctoral Research Fellow at the Department of Private Law, Law Faculty, University of Oslo.
Łukasz takes part in the research project Judges under Stress (JuS) the Breaking Point of Judicial Institutions.
I thank the following people for their valuable comments on the draft version of the Article: Maria Ejchart-Dubois,
Hans Peter Graver, Jarosław Gwizdak, Ewa Łętowska, Danuta Przywara, Grzegorz Wiaderek, Nina Witoszek,
Mirosław Wyrzykowski. My special thanks for their extraordinary contribution go to Leah Wortham, Magda
Krzyżanowska-Mierzewska and Marek Antoni Nowicki. I also thank other numerous judges, lawyers, and
representatives of the CSOs who shared with me their personal experiences.
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as a partly lost opportunity. If noticed, appreciated, and supported CSOs activities and their
role could be more meaningful.
Keywords
Judiciary; Civil Society Organizations (CSOs); judicial resistance; legal complex; civic
engagement; role of the judiciary
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A. Introduction
Society is being destroyed like this: First, the rule of law must be broken
by force. This must be done openly and publicly, in front of the entire
society. […] The experience of one's own powerlessness in the face of
violence destroys the energy of the individual, but the experience of the
public impotence of the law hurts more severely: it undermines faith in
the reality of society.
1
“THIS IS OUR COURT”
(2017) An inscription displayed on the Supreme Court’s wall.
2
Thanks to the courage and determination of judges, prosecutors,
lawyers and citizens, the justice system has not yet collapsed. It is up to
us to ensure that the spirit of justice survives and that the rule of law is
rebuilt.
3
Since the October 2015 parliamentary elections in Poland, the government coalition led by
the Law and Justice party (Prawo i Sprawiedliwość, PiS) claimed to “reform” the judiciary.
Almost unanimously, international institutions such as the European Union, Council of
Europe, and United Nations, as well as academia, termed these as attacks on the courts,
judicial independence, and democracy, and assessed them as rule of law backsliding,
constitutional breakdown, and constitutional coup d'état. This process is being reported and
analyzed on an ongoing basis.
4
1
Bohdan Cywiński, Kiedy przestajesz się bać, TYGODNIK SOLIDARNOŚĆ, Apr. 10, 1981, at 4 (translated by author).
2
“To jest nasz sąd,” an inscription displayed on the wall of the Supreme Court by Akcja Demokracja during the
“Chain of Light” protest event, July 2017.
3
WOLNE SĄDY, 2000 DAYS OF LAWLESSNESS (Sylwia Gregorczyk-Abram, Paulina Kieszkowska-Knapik, Michał
Wawrykiewicz, Maria Ejchart-Dubois & Krzysztof Michałowski eds., 2021),
https://wolnesady.org/files/2000_days_of_Lawlessness_FreeCourts_Report.pdf.
4
See WOJCIECH SADURSKI, POLAND'S CONSTITUTIONAL BREAKDOWN (2019); Dariusz Mazur, Laurent Pech & Patryk
Wachowiec, 1825 Days Later: The End of the Rule of Law in Poland, part I and II, VERFBLOG (Jan. 28, 2021),
https://verfassungsblog.de/1825-days-later-the-end-of-the-rule-of-law-in-poland-part-ii/. See also academics’
numerous blog entries or group statements/open letters, for example the VERFASSUNGSBLOG published in 2015
20 around 270 posts devoted to rule of law crisis in Poland (information from Maximilian Steinbeis, Chief Editor,
Jan. 18, 2021). For numerous documents, statements, opinions of both international and Polish actors, see civic
initiative: https://ruleoflaw.pl/ and the crisis calendar: WOLNE SĄDY, supra note 3.
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In short, the government targeted first the Constitutional Tribunal (CT), then the National
Council of the Judiciary (NCJ), the Supreme Court (SC), and the ordinary courts. In response
to subsequent moves of the government, many judges undertook various activities to defend
the independence of the judiciary and judges and, more broadly, to defend the attacked
institutions of liberal democracy. The active reaction of a big part of Polish judges is a special
one and worth analyzing against the background of the world experience with its examples
of rather individual and not strategic and systemic judicial resistance.
5
The Polish Constitutional Tribunal was paralyzed and then ‘packed’ and used as a tool of the
governing majority,
6
the NCJ subjected to politicians, the Supreme Court attacked and
packed, and ordinary courts influenced by appointments of new presidents by the Minister
of Justice. Polish judges, as of September 2021, are still under constant pressure, targeted by
the executive and by the ruling parties as a groupthrough organized hate campaigns and
‘muzzle laws’—and as individuals to create a chilling effect and punish those who do not wish
to follow the whims of the executive. Nevertheless, after more than five years, a substantial
group of judges manages on a large scale to take various actions to defend judicial
independence.
7
The interaction and cooperation of resisting judges with other actors and their support for
judicial activities is worthy of study. The key stakeholders supporting or cooperating with
resisting judges are international organizations and institutions, legal academia, the legal
professions, and civil society organizations (CSOs). Existing writings on Poland do not analyze
the legal complex understood widely and incorporating not only ‘bench and bar’ but also
other legal professions, the legal academy, and civil society.
8
The aim of this Article is to take
a closer look at CSOs' activities vis a vis courts and judges.
9
My argument is three-fold.
5
See, e.g., HANS PETTER GRAVER, JUDGES AGAINS T JUSTICE: ON JUDGES WHEN THE RULE OF LAW IS UNDER ATTACK (Springer,
2015); HANS PETTER GRAVER, JUSSENS HELTER (2020) (mentioning examples of judicial resistance).
6
See Wojciech Sadurski, Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal, to
a Governmental Enabler, 11 HAGUE J. RULE L. 63 (2019).
7
There is no reliable data showing what part of the 10,000-member group of judges supports judicial resistance.
Some dozen judges are visible and symbolic for the protest, some hundreds of judges are regularly active, but some
thousands of judges support different actions. For instance, over 4,000 judges signed a letter calling on the
government and the President of the Supreme Court to implement the rulings of the Court of Justice of the
European Union. See Mariusz Jałoszewski, Wielki historyczny apel polskich sędziów w obronie prawa UE. Ostateczna
lista 4219 nazwisk, OKO.PRESS (July 31, 2021), https://oko.press/wielki-historyczny-apel-polskich-sedziow-w-
obronie-prawa-ue-ostateczna-lista-4219-nazwisk/.
8
See The Legal Complex and Struggles for Political Liberalism, in FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES
OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM, (Terence C. Halliday, Lucien Karpik & Malcolm M. Freely eds., 2007).
9
In the empirical research, the author relies in part on participatory observation. In 19892015, I worked for CSOs
focusing on judiciarymainly the Helsinki Foundation for Human Rights in Polandand state bodiesin 2010
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First, I show that CSOs can potentially play, and sometimes do play, an essential role in the
struggle for the rule of law and judicial independence. The role of their support for the
judiciary, their struggle for independent courts, and their defense of liberal values under
attack is significant even if CSOs seem underrated. The present situation in Poland is a
starting point. But how did it happen that Polish CSOs are currently an essential element of
the legal complex, and their role and interaction/cooperation with judges is significant? Is it
an extraordinary phenomenon, born ad hoc only because of the gravity and immediacy of
the situation? Or does it arise, as I argue, from the previous interactions between the
judiciary and civil society? Accordingly, I also cover two previous historical periods.
Second, from the comparative perspective, I argue that what we are currently witnessing in
Poland is a noteworthy phenomenon with no precedent, both concerning the character of
the relationship between judges and CSOs and the striking scale and diversity of interaction
and cooperation.
Third, I argue that the role of the CSOs in the legal complex might be partly seen as
underappreciated and not fully acknowledged because other actors, including legal
academia, do not treat it as a serious point of reference and overlook the importance of the
phenomenon.
Some definitions are necessary to make sense of my arguments. Legal complex follows
Halliday and Karpik’s definition: “The legal complex denotes legal occupations which mobilize
on a given issue at a given historical moment, usually through collective action that is enabled
through discernible structures of ties.”
10
This notion is beneficial to show and prove the
significance of the CSOs’ role. I do apply this concept but am also of the opinion that it could
be more theoretically developed when it comes to the role of the CSOs, as stated in my final
conclusions.
11
One should also note that in Poland lawyers traditionally did not identify
themselves with ‘one legal profession’ but with different legal occupations or professions like
judges, prosecutors, notaries, or attorneys-at-law grouped in two professions: advocates and
2015 as a member of the National Council of the Judiciary. In 20152020, I was involved in different activities aiming
at defending judicial independence as president of the legal think tank INPRIS and as co-founder, in June 2018, of
the Justice Defense Committee KOS.
10
Lucien Karpik & Terence C. Halliday, The Legal Complex, 7 ANN. REV. L. & SOC. SCI. 217 (2011).
11
This is an interesting subject for a separate article, in which one can use the examples and arguments presented
in this Article.
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legal advisors.
12
All these occupations have separate career paths and the transition between
them, however possible, is more difficult and less frequent than in common law countries.
Furthermore, legal scholars and lawyers working for CSOs are not treated as members of the
legal profession unless, as is often the case, they are also members of one of the
aforementioned legal occupations.
The terms Civil Society Organization (CSO) and third sector organization appear for what most
authors call Non-Governmental Organizations (NGOs).
13
The name ‘CSO’ emphasizes civil
society and citizens as subjects, while NGO defines organization just in opposition to
governmental structures. For the purpose of this Article, I am defining CSOs as groups of
citizens who associate for a chosen purpose in the form of associations, foundations, or less
formal initiatives. I do not include in this group political parties, unions of workers or
employers, churches, or religious groups.
14
Even within such limited scope, I am not
interested in all CSOs. I refer in the Article to the traditions of state-building as a civil society,
meaning a liberal democracy respecting human rights. Bothin the past and presentother
entities are also activefor example, by CSOs expressing nationalistic-ultra religious-
populistic ideas. However, I deliberately focus on CSOs that recognize a current threat to the
rule of law, and not on the significantly fewer organizations that support the government and
its reform of the justice system.
15
Among the CSOs, I also include judges' associations, as
these are not official organizations, but private voluntary associations.
The use of interaction, communication, and cooperation, underlines the differing
relationships between the courts/judges and CSOs. Because judges are supposed to be
independent and impartial, their cooperation with other subjects is limited, while
communication or interaction happens more often.
Finally, by judicial resistance I mean activities of judges undertaken individually or
collectively, in court or out of court, against measures aiming at limiting judicial
independence or, more comprehensively, backsliding the rule of law. Measures that we can
12
Legal advisors (radcowie prawni) was a legal occupation created by communists in opposition to ‘bourgeois
advocates,’ and in order to counsel and represent mainly public enterprises and entities.
13
Other possible names: organizations of non-profit; voluntary sector; independent sector.
14
But see FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM (Terence
C. Halliday, Lucien Karpik & Malcolm M. Freely eds., 2007) (presenting a different approach on the scope of ‘civil
society’ as an element of the legal complex).
15
One such organization is a very activeincluding on the international sceneand influential legal think tank, The
Ordo Iuris Institute for Legal Culture, founded in 2013. See ORDOIURIS, https://en.ordoiuris.pl/ (last visited Sept. 1,
2021).
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characterize as breaching the rule of law standards accepted by the state and enshrined in
the constitution, national and international law.
16
This Article is organized as follows. Part B takes a brief look at the final period of a communist
state (1970s1980s). Part C analyzes the era of building democracy and the rule of law (1989
2015). Part D analyzes what CSOs have been doing for and with the judiciary over 20152020.
Parts B, C, and D cover three different historical periods, but they follow the same structure
with a division into three subsections devoted to (I) the background, (II) interaction of CSOs
with courts and judges, and (III) conclusions. Finally, Part E concludes with an assessment of
the possible role played by CSOs vis a vis judges and courts in the broader context of legal
complex and judicial resistance.
B. People’s Republic: Time of Oppression (19761989)
I. Under Control of the Party: Background
During the so-called socialist era, both the judicial system and the landscape of the third
sector were controlled by the state. The socialist system was characterized by essentially one
communist party-based domination of everything that was public. Although Poland was
declaratively a democracy and a state under the rule of law, each of these terms was
preceded with the word “people’s” or “socialist.” A joke from the epoque illustrates this well.
When asked “what is the difference between the democracy/the rule of law and the socialist
democracy/the rule of law?” the answer was “similar to what differs a chair from an electric
chair.
The judiciary in communist Poland was under the control of the ruling party. Although in the
1970s and 80s, judges and courts were different from Stalinist courts, being part of the state
terror machinery in the 194050s,
17
the communist constitution of 1952 left no illusions.
While it declared that judges were to be independent and trials public,
18
it did not guarantee
the right to a court or fair trial and formulated the role of courts as: [C]ustodians of the
16
See also Hans Petter Graver, Why Adolf Hitler Spared the Judges: Judicial Opposition Against the Nazi State, 19
GERMAN L.J. 845, 864 (2018) (discussing other possible terms in the section ‘A Typology of Judicial Opposition’).
17
See ANDRZEJ RZEPLIŃSKI, DIE JUSTIZ IN DER VOLKSREPUBLIK POLEN (Maria Veronika Janssen trans., Andrzej Kałuża ed.,
1996).
18
CONSTITUTION OF THE POLISH PEOPLE'S REPUBLIC July 22, 1952; Dziennik Ustaw, No. 7, item 36, art. 62 (Judges shall be
independent and subject only to the law”); Dziennik Ustaw, No. 7, item 36, art. 63.1 (Cases in all Courts of the
Polish People's Republic shall be heard in public . . . .”).
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social and political system of the Polish People's Republic” who “shall safeguard the people’s
rule of law, social property and the rights of citizens” as well as “shall punish offenders.
19
Civil Society, understood as a form of freely grouping citizens to pursue a common goal or
interest, was very limited. Few bottom-up private third sector organizations focusing on law
or dealing with the judiciary existed. The landscape of “imperfect civil society” consisted of
“pseudo-civil society official associations” and “illegal civil society.
20
Significant developments took place in the 1980s. The nationwide strikes in August 1980
something previously almost unheard of in ‘peoples' democracies’—led to the signing of an
agreement with the government and the creation of Solidarność, the first independent trade
union in the Soviet sphere of influence.
21
The following, fifteen month long, ‘Solidarity era’
was a time of citizens' enthusiasm to change the reality around them, far beyond the classical
role of trade unions. About ten out of thirty-five million citizens signed up for Solidarność,
which naturally dominated the civil society scene and absorbed most of the persons
previously active in any sphere of social or quasi-political activity.
22
Solidarność also found its
way to judges. Creating the Judicial branch of Solidarność was not easy, yet according to
various estimates, about one out of three thousand judges were union members.
23
This
demonstrates both the hopes placed in this social movement and the courage of the judges
who became members of an organization that opposes authoritarian power.
The ‘Solidarity era’ ended with the imposition of martial law on December 13, 1981 and the
imprisonment as so-called ‘internees’ of ten thousand activists without any proper legal
basis.
24
As Kubik notes: “After the delegalisation of Solidarity in 1981, independent social
activity moved underground. Illegal civil society, which formed almost overnight, was
19
CONSTITUTION OF THE POLISH PEOPLE'S REPUBLIC July 22, 1952, art. 58.
20
There was for instance Zrzeszenie Prawników Polskich (Union of Polish Lawyers) founded in 1945, but it was not
a grassroots organization, but rather ‘pseudo civil society’ official organization embedded in the system. In order
to establish an independent CSO one was left with the ‘illegal’ alternatives. See Jan Kubik, Between the State and
Networks of ‘Cousins’: The Role of Civil Society and Non-civil Associations in the Democratization of Poland, in CIVIL
SOCIETY BEFORE DEMOCRACY: LESSONS FROM NINETEENTH-CENTURY EUROPE 181 (Nancy Bermeo & Philip Nord eds., 2000).
21
See What is the NSZZ “S,” SOLIDARNOŚĆ, https://www.solidarnosc.org.pl/en/.
22
They were however some exceptions. For instance, in July 1981, the President of Warsaw entered the “Patronat”
Association for Assistance to Imprisoned Persons and their Families into the register of associations. See Rejestracja
„Patronatu”, 22 TYGODNIK SOLIDARNOŚĆ, Aug. 28, 1981, at 15.
23
See MARIA STANOWSKA & ADAM STRZEMBOSZ, SĘDZIOWIE WARSZAWSCY W CZASIE PRBY 1981-1988 (Instytut Pamięci
Narodowej, 2005), at 5666.
24
See PATRYK PLESKOT, PRAWO I BEZPRAWIE: KOMITET HELSIŃSKI W POLSCE 19821990 (2017), at 27.
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diversified but also strongly unified by a common symbolic umbrella in the myth of
Solidarity.”
25
The ‘era of martial law’ lasted until 1988–89, although the ‘martial law’ itself
technically ended in July 1983.
II. Underground Activists and Duty Judges
Can we speak of any interaction, or maybe cooperation, of civil society with courts and judges
in the difficult circumstances of peoples democracy outlined above? The most relevant civil
society activities in the 1970s were those of two ‘illegal’ groups: (a) The Workers Defense
Committee (Komitet Obrony Robotników, KOR) created in 1976
26
and (b) the Movement for
Defense of Human and Civic Rights (Ruch Obrony Praw Człowieka i Obywatela, ROPCiO).
KOR and ROPCiO relied on rights/libertieslike freedom of associationthat technically
existed under the 1952 Constitution, but were treated by the political powers merely as
window dressing and very severely restricted in practice. They argued that they do nothing
but exercise their citizen’s rights guaranteed by the then legal order. Additional impetus to
their creation had been provided by the ‘Helsinki process’ and the 1975 Helsinki Accords.
27
The Workers Defense Committee KOR was a civil society group
28
founded initially to provide
aid to demonstrators after the June 1976 protests about the impending rise in the cost of
basic commodities in Radom and Ursusprimarily those arrested and facing criminal trials
for their participation in the street protests.
29
KOR activities included organizing and
financing legal representation for political detainees, financial support for their families, and
cooperation with advocates and doctorsmedical aid and medical reports were presented
as evidence of police brutality at trials.
30
25
Kubik, supra note 20, at 278.
26
Reorganized in 1977 into the Committee for Social Self-defense KOR [Komitet Samoobrony Społecznej KOR].
27
See Helsinki Final Act, CONFERENCE ON SECURITY AND CO-OPERATION IN EUROPE (1975).
28
See JAN JÓZEF LIPSKI, KOR: A HISTORY OF THE WORKERS' DEFENSE COMMITTEE IN POLAND, 19761981 (1985); Jan Skórzyński,
KOR and Its Model of Resistance: Study of Dissent and Opposition in the Communist Poland, 125 KWARTALNIK
HISTORYCZNY 87 (2018); KACPER SZULECKI, DISSIDENTS IN COMMUNIST CENTRAL EUROPE: HUMAN RIGHTS AND THE EM ERGENCE OF
NEW TRANSNATIONAL ACTORS (2019); NINA WITOSZEK, THE ORIGINS OF ANTI-AUTHORITARIANISM (2019).
29
Prices were fixed and controlled by the government. A group of activists began organizing support for workers
that, after a couple of months, led to the founding of KOR. See LIPSKI, supra note 28, at 30.
30
Id. at 7983.
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KOR also attempted to observe those trials. Representatives of KOR tried to enter the
courtrooms. During such initial attempts, groups of observers were arrested in the court
building, brought to a police station, and subjected to informal interrogation attempts, body
searches, and sometimes beatings. However, after some time, the campaign for the right to
observe trials was won. Still, occasionally, observers were detained by police or attacked by
‘unknown perpetrators,’ damaging observers’ cars or beating them, including in the court
building and with no reaction from police.
31
What started with informal teams supporting workers in Ursus and Radom developed into a
social network active for over four years. KOR began with a handful of heroes in a rather
passive societya risk of oppression was very highfourteen signatories and around thirty
official members. Over the years the network grew to hundreds of collaborating associates.
It established the KOR Intervention Bureau helping parties in labor law casesmostly
employees dismissed for their participation in protestsand giving legal advice in conflicts
with the administrative apparatus and police. KOR also focused on monitoring and reporting
by preparing The Documents of Lawlessness, well-documented cases of political killings and
severe beatings,
32
and by establishing the Helsinki Commission, which acted within KOR from
January to September of 1980. It prepared a report on the implementation of the Helsinki
Final Act
33
by Polish authorities, covering four years of KOR activities.
34
The KOR efforts had
been in part successful.
35
It was also the first initiative with a more systemic approach to the
work of courts.
The Movement for Defense of Human and Civic Rights (ROPCiO) was a civil society group
36
that went public on March 25, 1977, by publishing the declaration signed by eighteen people.
The declared goals of the Movement were to protect human and civil rights and to enforce
with recourse to legal actionscompliance of the communist government with ratified
31
Id. at 8487.
32
Id. at 21826.
33
Helsinki Final Act, CONFERENCE ON SECURITY AND CO-OPERATION IN EUROPE, (1975),
https://www.osce.org/files/f/documents/5/c/39501.pdf.
34
See PROLOGUE TO GDANSK: A REPORT ON HUMAN RIGHTS BY THE POLISH HELSINKI WATCH COMMITTEE (1980).
35
As a result of the workers’ protests the government withdrew from price increases, but also in the spring of 1977
declared the amnesty for jailed workers.
36
See GRZEGORZ WALIGÓRA, RUCH OBRONY PRAW CZŁOWIEKA I OBYWATELA 1977-1981 (2006); Jan Skórzyński, Apel do
społeczeństwa polskiego” i geneza ROPCiO, 2 PAMIĘĆ I SPRAWIEDLIWOŚĆ 317 (2008).
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international human rights treaties. Poland had ratified the UN International Covenants only
a few days earlier.
37
ROPCiO operated in three main ways: (a) Publishing appeals, declarations, and open letters
addressed to the authorities, like a Declaration on Freedom of Speech or Open Letter on
Freedom of Conscience and Religion;
38
(b) organizing help and counseling for people
persecuted by the regime in local consultation points in private apartments of various towns;
(c) informational and educational activities, underground publications, like handbooks on
conduct to be followed during detention and interrogation by Militia or Security Service.
39
During Solidarność timemainly in 1981several exciting processes took place.
40
Two trade
unions with relevance to judges were created: The judicial branch of Solidarność andin
opposition to itan official Union of Justice Workers.
41
Judicial Solidarność held an open and
lively debate on the independence of courts and judges. Numerous attempts were made to
bring about changes, including by way of work on drafts of bills reforming the judicial system
and taking it out of the communist party control.
In April 1981, “Solidarność Weekly”
42
began publication, a forum for a nationwide discussion
about reform of the statethough still subject to censorship. It published several articles
devoted to the rule of law and judicial reform. Judges themselves also spoke out. In their
programmatic thesesDirections of the Union . . . and positions for negotiations with the
government, representatives of Solidarność stressed the need for judicial reform, the
importance of the independence of the judiciary, and judicial self-government.
43
Supreme
Court judge Zofia Wasilkowska formulated directions for reform of the Supreme Court.
44
37
International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and
Cultural Rights (ICESCR), New York, Dec. 16, 1966, both entered into force in 1976.
38
Deklaracja o wolności słowa (Declaration on freedom of speech); List otwarty w sprawie wolności sumienia i
wyznania (Open letter on freedom of conscience and religion).
39
WALIGÓRA, supra note 36.
40
See KAMIL NIEWIŃSKI, PZPR A SĄDO WNICTWO W LATACH 19801985: PRÓBY POWSTRZYMANIA “SOLIDARNOŚCIOWEJ
REWOLUCJI (2016).
41
See STANOWSKA & STRZEMBOSZ, supra note 23, at 4266.
42
From April until December 1981, thirty-seven numbers of TYGODNIK SOLIDARNOŚĆ were published.
43
See Kierunki działania związku w obecnej sytuacji kraju. Część 4.1, Praworządność, 3 TYGODNIK SOLIDARNOŚĆ, Apr.
17, 1981, at 6; Praworządność. Stanowisko KPP do rokowań z rządem, 6 TYGODNIK SOLIDARNOŚĆ, May 8, 1981, at 7.
44
See Zofia Wasilkowska, Sąd Najwyższy, 7 TYGODNIK SOLIDARNOŚĆ, May 15, 1981, at 13.
Ge rm an L aw J o ur na l
Members of Solidarność were urged to take advantage of the then-existing provisions on the
possibility of participation in court proceedings by a so-called ‘social representative’.
45
Judge Adam Strzembosz underlined in the interview the active role of the Solidarność union
in the courts—over 9000 members including 1000 judges: “We are currently witnessing a
huge surge of activity on the part of the court staff . . . draft laws and amendments are
created spontaneously and voluntarily, we conduct lectures, presentations, we discuss.”
46
Strzembosz was one of the most active supporters of judicial self-governance.
47
Dozens of judges protested misinformation by signing Lawyers’ Statement, an objection
against the state media presenting the country situation as threatening security because of
allegedly increased crimes or hooliganism during the Solidarność era. This Statement was
also published in the “Solidarność Weekly.” This was proof of their courage.
48
At the same time, very critical voices of citizens directed at the judiciary were heard, calling
for reform and vetting procedures in the future.
49
Some judges reacted to the accusations
at times quite nervouslyby defending themselves and claiming that many of them have
maintained their dignity and independence and that the denunciations were an unfounded
generalization.
50
Other judges agreed with the critics.
51
Six judges from Gdańsk admitted in their written statements that they had been subjected
to unlawful pressure from the provincial court president instructing them on how to decide
45
A person supporting on behalf of the organization a ‘social interest’ and/or an individual party to the case. See
Lech Falandysz, Przedstawiciel społeczny, 9 TYGODNIK SOLIDARNOŚĆ, May 29, 1981, at 11.
46
See interview with Adam Strzembosz, „Solidarność” pracowników wymiaru sprawiedliwości, 10 TYGODNIK
SOLIDARNOŚĆ, June 5, 1981, at 10.
47
See Adam Strzembosz, O samorządne sądownictwo w samorządnej Rzeczypospolitej, 33 TYGODNIK SOLIDARNOŚĆ,
Nov. 13, 1981, at 13.
48
See Oświadczenie prawników, 9 TYGODNIK SOLIDARNOŚĆ, May 29, 1981, at 1; Oświadczenie prawników, 11 TYGODNIK
SOLIDARNOŚĆ, June 12, 1981, at 5; Oświadczenie prawników, 13 TYGODNIK SOLIDARNOŚĆ, June 26, 1981, at 3.
49
See, e.g., Janusz Ślęzak, Dlaczego polskie sądownictwo powinno być samorządne?, Jolanta Strzelecka, Sędziowie?,
11 TYGODNIK SOLIDARNOŚĆ, June 12, 1981, at 1213.
50
See Protest; Jacek Ambroziak, Dyspozycyjni sędziowie; Joanna Strzelecka, List sędziów poznańskich, 20 TYGODNIK
SOLIDARNOŚĆ, Aug. 14, 1981, at 13.
51
See Krzysztof Kauba, “Solidarność” w resorcie sprawiedliwości, 24 TYGODNIK SOLIDARNOŚĆ, Sept. 11, 1981, at 14;
Janusz Rudnicki, Jacy są sędziowie, 25 TYGODNIK SOLIDARNOŚĆ, Sept. 18, 1981, at 13.
Ge rm an L aw J o ur na l
specific cases.
52
They openly informed in which cases they had succumbed to pressure and
when they had not. These confessions resulted in the actions of Solidarność, which led to the
dismissal of the court president.
53
During the First Congress of Solidarność in September/October 1981, the union’s delegates
passed a “Resolution on the Independence of the Judiciary.”
54
They expressed their
conviction that it was impossible to reform the state without guaranteeing an independent
judiciary. The Congress asked “all workplace organizations to widely disseminate those
theses of the Union's program which concern the guarantee of judicial independence . . . as
well as obliged the union's leadership to “particular activity in negotiating” the guarantee of
independence with the authorities.
55
The Congress also asked all union members to support
these activities, “including protest action” if necessary.
56
This demonstrates that the judicial
agenda was an important part of the activities and claims of the protest movement, and not
only a fringe preoccupying those with special interest.
During the Solidarność era, the communities of advocates and legal advisers were trying to
become professions independent from the state. Advocates and legal advisers worked on
relevant draft laws
57
and met during the groundbreaking National Congress that had adopted
relevant resolutions.
58
Judges, lawyers, and legal scholars cooperated in the Center for Civic
Legislative Initiatives of Solidarność and its Social Legislative Council, created in January 1981
in Krakow and headed by the rector of the Jagiellonian University. From 1981 to 1992, the
Center developed several dozen draft bills, involving around 100 experts and 200
collaborators.
59
This included essential drafts related to the judiciary.
52
See Wanda Falkowska, Votum nieufności, 33 TYGODNIK SOLIDARNOŚĆ, Nov. 13, 1981, at 12.
53
Id. at 12.
54
See Uchwała w sprawie niezawisłości sądownictwa, 30 TYGODNIK SOLIDARNOŚĆ, Oct. 23, 1981, at 10 (translated by
author).
55
Id. at 10.
56
Id. at 10.
57
Paradoxically both Acts, on the Bar and on the Legal Advisors, prepared during Solidarność era, were passed by
the Parliament during the martial law state in 1982.
58
Ogólnopolski Zjazd Adwokatury [National Congress of the Bar], Jan. 3–4, 1981, Poznań.
59
See KAZIMIERZ BARCZYK, STANISŁAW GRODZISKI & STEFAN GRZYBOWSKI, OBYWATELSKIE INICJATYWY USTAWODAWCZ E
SOLIDARNOŚCI 19801990 (Wydawnictwo Sejmowe, 2001).
Ge rm an L aw J o ur na l
In December 1981, after the imposition of martial state law, the most important were the
activities of the Polish Helsinki Committee (Komitet Helsiński, KH) created in 1982.
60
The
Committee revealed its existence in January 1983 with the publication of its first report and
operated underground until 1988 when its members disclosed their names. The first report
(1000 pages), “Human and Civil Rights in the Polish People's Republic during the Martial Law
Period Dec. 13, 1981–Dec. 31, 1982,”
61
was clandestinely taken out of the country “to the
west” and published there. Authors declared in the report that:
The aim of the Committee is to collect, prepare and
publish materials concerning violations of human rights
in the People's Republic of Poland. The Committee does
not represent any political line . . . . We only want to
participate in the fight against lawlessness by broadly
informing about its various manifestations.
62
This first report, and five more prepared in subsequent years, consisted of both analysis of
the laws and their compliance with Poland’s international obligationsas they stood at that
timeand detailed documentation of cases of individual human rights violations.
In addition to the reports, the Polish Helsinki Committee has been constantly involved in
discussions about the judiciary. Judicial issues were present in the clandestine periodic ‘The
Rule of Law’ (Praworządność)
63
and in the column ‘The Rule of Law’ (Praworządność)
published systematically for five years in the underground magazine KOS.
64
In 1985, at
Solidarność request, the most important theses were formulated as part of the Solidarity
report: ‘Poland - Five Years after August’.
65
And in October 1988, the Committee delivered a
position on the judiciaryamong other issues—in the document ‘Civil rights - The Law and
the Rule of Law’, which later became an important document in the context of the ‘Round
60
See PATRYK PLESKOT, PRAWO I BEZPRAWIE : KOMITET HELSIŃSKI W POLSCE 19821990 (2017).
61
Prawa Człowieka i Obywatela w PRL w okresie stanu wojennego Dec. 13, 1981–Dec. 13, 1982.
62
See Pleskot, supra note 60, at 51.
63
Interview with Marek Antoni Nowicki, Co-founder, Polish Helsinki Committee (July 2021), See also
Praworządność, No. 121, HELSINKI COMMITTEE, https://www.hfhr.pl/komitet-2/biuletyn/.
64
Interview with Marek Antoni Nowicki, Co-founder, Polish Helsinki Committee (July 2021).
65
See POLSKA 5 LAT PO SIERPNIU. RAPORT (POLAND FIVE YEARS AFTER AUGUST. REPORT), ANEKS, 1986.
Ge rm an L aw J o ur na l
Table Talks’. It emphasized the role of judicial independence as a basic condition for the
effective protection of rights and freedoms.
66
With the judicial issues the Committee tried also to get through to the official press, which
was effectively prevented by censorship. Marek Antoni Nowicki recalls:
In order to circumvent the impossibility of criticizing the
judiciary in the People's Republic in the official press, I
decided to describe the ongoing judicial reforms in the
USSR (the era of perestroika).
67
The basis was the Soviet
press of that period, especially Ogoniok
(Russian Огонёк) which published a lot about it. For us
it was fascinating reading, we had never come across
such a discussion in our lives, and that it was possible to
write such things in newspapers. I spent many months in
a Koszykowa library, poring over those Ogonioks and
others like them. It read like the underground press.
Information on the Helsinki Committee in 1988 also
could not be published. The brave newspapers only
mentioned Article 6 of the Censorship Act, on the basis
of which publication was refused.
68
The Helsinki Committee built a network of collaborators and experts, often using already
existing structuresfor example, the underground Solidarność and the network of aid
committees established in dioceses and parishes. The information was collected from
underground activists but also cooperating advocates, prosecutors, and judges.
69
The actual modus operandi and the identities of participants in this work are partly shrouded
in mystery. We have only incomplete information on cooperation of judges with CSOs in the
1980s. The Helsinki Committee members in their reports referred to cooperation with judges
but did not provide any details.
70
Because the Committee acted underground, this
66
See Prawa Obywatelskie prawo i praworządność, Biuletyn nr 1, KOMITET HELSIŃSKI W POLSCE, 1988 at 3343,
hfhr.pl/komitet-2/biuletyn/.
67
See Marek Nowicki, Pierestrojka i Temida, TYGODNIK POWSZECHNY, February 14, 1988, at 3.
68
Interview with Marek Antoni Nowicki, Co-founder, Polish Helsinki Committee (July 2021).
69
See Pleskot, supra note 60, at 26.
70
Id. at 2628, 99.
Ge rm an L aw J o ur na l
cooperation has no adequate documentation. Marek Antoni Nowicki was in contact with
lawyersmainly attorneys and prosecutors, but also judgeson behalf of the Committee.
He claims that the Polish Helsinki Committee cooperated with several dozen judges who
provided various information, but personally knew only a few of them due to the
underground rules.
71
Nowicki, a former prosecutor himself, mentions as examples the fellow prosecutors taking
files out of the offices, under the mantle, with a view to providing information for the
purposes of the reports, or the name of the retired Supreme Court judge who provided her
apartment for some secret meetings of the Helsinki Committee.
72
However, there are
probably more stories and examples to be found.
73
The activities of Stanisław Dąbrowski provide one example of judges involved in, or
supporting activities of, the anti-communist underground. At his 2014 funeral ceremony
he passed away being the First President of the Supreme Courtthose gathered learned that
throughout the martial law period, when he was already a judge, Dąbrowski made his
apartment available to a Solidarity activist hiding from the secret police. He also
transportedon a sledand held in his flat, an illegal duplicator of the underground
organization. Although he was a prominent public figure after 1989, a member of Parliament,
Chairman of the NCJ, and President of the Supreme Court, this ‘underground’ part of his
biography was not publicly known until after his death.
74
III. The Pull of Heritage
Despite the lack of real freedom, democracy, and the rule of law, the last fifteen years of the
‘people's democracy’ was also the time when social movements initiated for the first time a
more strategic approach to the ‘legal actions.’ The KOR, the ROPCiO, and the Helsinki
Committee, emphasized the protection of human rights they should enjoy vis-à-vis the
communist state authorities and the state’s obligation of compliance with its international
obligations.
71
Interview with Marek Antoni Nowicki, Co-founder, Polish Helsinki Committee (Dec. 2020).
72
See Pleskot, supra note 60, at 2728.
73
This could be an interesting topic for a separate article.
74
Author learned about it during a memorial service. See also ADWOKATURA POLSKA, Ostatnie pożegnanie Stanisława
Dąbrowskiego, https://www.adwokatura.pl/ogolnoprawne/ostatnie-pozegnanie-stanislawa-dabrowskiego/ (Jan.
21, 2014).
Ge rm an L aw J o ur na l
For the first time, it was possible to refer to the documents signed by the communist regime:
The 1975 Helsinki Final Act—with its section VII ‘Respect for Human Rights and Fundamental
Freedoms, Including the Freedom of Thought, Conscience, Religion or Belief’—and to the UN
International Covenantswith the right to an independent court, Article 14 ICCPR. Oddly
enough, a law on the ratification of the Covenants was published in the Journal of Laws with
the information that they constituted an annex to the law, but this was not published. The
first publication, unofficial, did not take place until five years later, during the Solidarity
period. Thus, citizens could not get acquainted with the rights guaranteed by these
documents. As Nowicki put it, “International human rights documents were like us, in the
underground.
75
Today, we probably would describe these organizations as CSOs or even public interest law
groups. However, their activities in interaction with the courts were limitedand in the
1980s, clandestine, hence kept in secret. In the 1970s, they focused on organizing legal
representation in cooperation with a group of advocates who acted in political criminal trials
of persons charged with various offences; on trial observation/documentation and providing
support to the victims of the regime; and on informing the public about court cases
conducted as acts of political oppression. In the 1980s, there was less trial observation but
more involvement of actors like ‘officers of the court’—mainly advocateswho provided
detailed reports on particular cases investigated by the then “militia” (the police) and tried
by the prosecution and the courts.
Judges in the People's Republic during the period under consideration were treated by
citizens with distrust, especially those adjudicating in political trials.
76
It is difficult to talk
about any open cooperation of citizens with judges as a group. It was more about an
interaction between the general public and courts that took place without the intention on
the part of the judges. The following story from Radom in 1976 illustrates how such judges
were sometimes pushed against their will into protecting court observers.
77
‘Unknown perpetrators’ organized by the authorities physically attacked trial observers and
advocates in the court building, screamed at and insulted them, and threw eggs at them.
78
The court’s police locked themselves in the office and did not respond to requests for
75
Interview with Marek Antoni Nowicki, Co-founder, Polish Helsinki Committee (July 2021). Nowicki recalls that still
in 1987, Tygodnik Powszechny wanted to publish his article about freedom of forming and joining trade unions,
quoting Article 22 of the Covenant. However, the article was removed in its entirety by the censors.
76
See Adam Strzembosz & Alicja Seliga, “Sądownictwo wykonywało najbrutalniejsze zadania rządzących” rozmowa
z prof. Adamem Strzemboszem, KRAJOWA RADA SĄDOWNICTWA. KWARTALNIK (2016/4).
77
See LIPSKI, supra note 28, at 8687.
78
Even though, due to crisis, eggs were unavailable in local shops, so they had to receive them via ‘another channel’.
Ge rm an L aw J o ur na l
assistance or knocks. One of the KOR advocates trying to get away opened the door to a
random hearing room and entered in with those being attacked. The eggs followed, landing
in front of the judge. Incidents like this finally tipped the scales. The court president
postponed all hearings that day and phoned the police. ‘Unknown perpetrators’ disappeared.
Two police officers appeared, although two hours later. For the next couple of months,
observers could do their job more freely.
The planned and structured trial observation started in the second half of the 1970s, but trial
observations incidentally happened before. Jacek Taylor, a well-known advocate in political
trials, describes a case of people detained during student and street riots in Gdańsk in March
1968. Taylor received a secret tip from the head of the court secretariat that some employees
and judges are summoned to report to work on Sundayto deal with cases against so-called
hooligans, dealt with an expedited procedure.
79
Taylor visited some advocates and requested them to come to the court on Sunday in case
defense is needed; he also asked a colleague to organize a group of students to observe
hearings. When police surrounded the court building on Sunday at 7:00 a.m., observers were
already inside the advocates’ room. When five hours later the police started to bring arrested
students and workers, advocates were already waiting to provide defense and students to
observe hearings.
80
It can obviously be a matter of speculation only, but according to Taylor,
professional defense by advocates and pressure put on judges by the presence of the student
observers at the courtrooms led to the acquittal of several people. This proves that the
personal pressure of civil society on judges is occasionally possible.
From different accountsno scientific data is available, no reliable research was done during
communist timesit seems that, especially before the Solidarność era, no one expected
judges to act fairly in political trials. There was a strong common opinion that such cases were
not assigned to judges randomly or under any known procedural rules of case management.
They were widely perceived rather as “duty judges,” the ones that political power trusted.
Nevertheless, there were also voices emphasizing that judgesexcluding criminal judges
tasked with political caseswere trustworthy.
81
Many political trials, especially since 1976, thanks to the cooperation with advocates and
work of observers, were also monitored and reported in numerous underground publications
79
See JACEK TAYLOR & ANNA MACHCEWICZ, NAPRAWDĘ TRZEBA BYŁO COŚ ZROBIĆ (2018), at 3438.
80
Id. at 3438.
81
This is a general impression from reading of the entire timeline of TYGODNIK SOLIDARNOŚĆ weekly, April-December,
1981.
Ge rm an L aw J o ur na l
(samizdat)
82
and radio broadcasts from abroad.
83
We can only guess in what way this kind of
publicity influenced the behavior of particular judges. However, both the defense in
particular trials and speeches of advocatessometimes also of the accused themselvesas
well as articles and discussions on different forums, especially in the Solidarność Weekly,
84
were addressed to the judges, both individually and as a group.
Finally, a large group of judgesone/thirdjoined Solidarność, part of them engaged in
works on future judicial reform, and established contacts with other social groups. New
personal ties were thus created between judges as well as judges and representatives of
other groups, which will subsequently turn out to be important. Adam Strzembosz argues
that this also resulted, among other things, in the independent positions of a group of judges
adjudicating during the martial law period. His survey covering the dark years of 198188
indicates “a remarkable variety of attitudes among judges, ranging from the truly heroic to
the extremely opportunistic.
85
On the other hand, when the martial law authorities banned
Solidarność, a group of judges lost their jobs as a retribution for their engagementless than
five percent of those who joined the judicial Solidarność.
86
The Polish Helsinki Committee noted:
After December 13, 1981, the erosion of public trust in
the judiciary, which had lasted for over 40 years,
deepened dramatically. The removal of judges for
political reasons, the blatant availability of some judges
to the Security Service, the lowering of the professional
level, caused losses in public opinion about the judiciary
that were difficult to compensate for.
87
82
The Polish ‘second circuit’ of publishing (samizdat) in 1970s1980s included some thousands of periodicals. See
DRUGI OBIEG W PRL NA TLE SAMIZDATU W PAŃSTWACH BLOKU SOWIECKIEGO PO 1956 ROKU (Przemysław Gasztold-Seń, Natalia
Jarska & Jan Olaszek eds., 2016).
83
Including broadcast in the Polish language by Radio Free Europe (Germany), BBC (UK) and Voice of America (USA).
84
TYGODNIK SOLIDARNOŚĆ, April-December 1981.
85
See STANOWSKA & STRZEMBOSZ, supra note 23, at 8.
86
See id. at 6065. Strzembosz argues that there is no reliable data on this issue but he provides information that
at the request of the Minister of Justice, the Council of State dismissed twenty-five judges and accepted the
resignation of eleven judges. The Minister also dismissed five judges-assessors. Finally, the Minister dismissed nine
court presidents and vice-presidents from their positions.
87
See Biuletyn nr 1, KOMITET HELSIŃSKI W POLSCE, 1988, at 38, https://www.hfhr.pl/komitet-2/biuletyn/.
Ge rm an L aw J o ur na l
The fifteen months of Solidarność inspired debates and communication between judges and
the society. The CSO side was ‘represented’ by the most prominent social movement in Polish
history, Solidarność. Citizens started to voice their expectations. They also drew the public’s
attention to certain trials, monitoring and describing those evaluated as unfair and politically
motivated and those assessed as fair. Good examples are administrative complaints brought
and won by the ‘Solidarność Weekly’ against the state censorship agency—before the newly
created Supreme Administrative Court.
88
The monitoring of one of the most famous trials, which started in June 1981, shows how
respectful towards judges Solidarność was. Leaders of the unofficial political party KPN
(Konfederacja Polski Niepodległej) who decided to act openly, were accused, among other
things, of attempting to violently overthrow the system of the People's Republic of Poland
and inciting to acts directed against the unity of the allied statesfor example, the Soviet
Union.
89
During the trial, they were several times released from the detention on remand by
the Regional Court in Warsaw, but arrested immediately again by the Supreme Courtthe
Supreme Court judges were appointed for five year terms which made them prone to yield
to political pressure. ‘Solidarność Weekly’ reported regularly on the case. The author clarifies
that she supports the position taken by the Regional Court, not that of the Supreme Court.
Still, the tone of reporting is respectfulhowever, we must remember the censorship which
certainly did influence both the tone and content.
90
In sum, CSOs before 1989 primarily advocated for the rule of law and monitored its
implementation in part by taking an oppositional stance to the judiciary. However, they
began to engage in the interactions and cooperation with judges that would become more
common in the future.
C. Liberal Democracy Time of Building (19892015)
I. New World. Independent Judges and Free Citizens in Charge Background
In 19892015, Poland evolved from an authoritarian socialist state to a liberal democracy.
The historic breakthrough of 1989 began with the ‘Round Table Talks’ from February to April
1989 and the first (partly) free parliamentary elections in June 1989. The parliament passed
laws introducing the National Council of the Judiciary and irrevocability of judges, both
88
See Jolanta Strzelecka, Cenzura przed sądem, 33 TYGODNIK SOLIDARNOŚĆ, Nov. 13, 1981, at 1, 4.
89
See Konfederacja Polski Niepodległej 1979-1990, INSTYTUT PAMIĘCI NARODOWEJ,
https://ipn.gov.pl/ftp/wystawy/kpn/pdf/plansze.pdf.
90
See Wanda Falkowska, Sąd Najszybszy, 26 TYGODNIK SOLIDARNOŚĆ, Sept. 25, 1981, at 13.
Ge rm an L aw J o ur na l
agreed during the ‘Sub-table for Law and Courts Reform’ works. The process led to the
gradual implementation of separation of powers, judicial independence, a right to a court,
and a fair trial. The reforms were shaped by the jurisprudence of the highest courts and
Constitutional Tribunal, confirmed by the new 1997 Constitution but also complemented by
the ratification of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, fulfilling pre-membership criteria and accession to the Council of
Europe (1991), NATO (1999), and the European Union (2004).
After the collapse of the communist state, the discussion on the vetting procedure of judges
took place, and were especially intensive, in 19891991. CSOs and the Polish Helsinki
Committee took part in the discussion. In March 1990, the Minister of Justice asked the
Committee for assistance in the verification of judges and prosecutors.
91
In response, the
Committee sent a detailed list of judges and prosecutors active in political cases under
martial law19811986. The material did not contain any evaluations but dry facts: The
composition of the court and prosecutors appearing in the case, case number and date, what
the case concerned, a summary of the verdict. The list included some hundred cases and
became a reference point for the minister in the evaluation of candidates when replacing the
positions of president and vice-president of the court.
92
No vetting of adjudicating judges has ever taken place. Apart from the Supreme Court, where
over sixty percent of judges were renewed, the judges in Poland remained the same.
93
The
new law introduced lifetime appointments as a guarantee of judicial independence, and the
ideas of judges’ lustration were criticized as inconsistent with this law, including by the
ministry, Ombudsperson, and the National Council of the Judiciary.
94
Instead, the possibility
of ‘autolustration’ of the judicial community was introducedcleansing the profession of
‘black sheep’ through disciplinary proceedings. However, the judiciary community did not do
it, the statute of limitations expired, and the political solutions were not introduced. Years
91
Aleksander Bentkowski, Ministrowi sprawiedliwości z pomocą, in KOMITET HELSIŃSKI W POLSCE PRAWA CZŁOWIEKA,
BIULETYN 990 (Mar. 23, 1990), at 8, https://www.hfhr.pl/wp-content/uploads/2015/11/biuletyn_nr09.pdf.
92
Communication with Marek Antoni Nowicki, July 2021.
93
In December 1989, the five-year term of office of the Supreme Court was shortened and ended on June 30, 1990.
The new composition of the Court was appointed by the President of the Republic on June 4, 199057 judges,
including twenty-two from the previous composition of the Court. See Adam Lityński, Historia Sądu Najwyższego,
SĄD NAJWYŻSZY (Aug. 29, 2018), http://www.sn.pl/osadzienajwyzszym/SitePages/Historia.aspx.
94
See Krajowa Rada Sądownictwa, Stanowisko Krajowej Rady Sądownictwa w sprawie niezawisłości sędziowskiej i
niezależności sądów, in KOMITET HELSIŃSKI W POLSCE, PRAWA CZŁOWIEKA. BIUL ETYN 9’90 (Apr. 4, 1990), at 912,
https://www.hfhr.pl/wp-content/uploads/2015/11/biuletyn_nr09.pdf; Interview with Aleksander Bentkowski,
Minister of Justice, “Masa problemów,” 15 TYGODNIK SOLIDARNOŚĆ, Apr. 13, 1990, at 11.
Ge rm an L aw J o ur na l
later, including in 2015, those in power, referred to this omission and accused current judges
of having communist origins. A member of the Committee warned against this back in 1992:
This small group of judges not only goes unpunished, but
also performs functions that require an exceptionally
immaculate attitude in every respect. Some might say
that there are so few of them, so why all the fuss? Even
if there is one such judge, s/he casts a shadow over the
entire judiciary. This way we will not build the much-
needed authority of the third power. And without a well-
functioning judiciary that enjoys social trust, democracy
is impossible.
95
Throughout the years the judiciary struggled with problems that led to the critique of its
performance and controversies that are still in place. If we adopt the convincing concept of
judicial capacity,
96
a well-functioning judiciary should balance independence, competence,
accountability, and efficiency. In Poland, an attentive observer would notice that the
emphasis was placed over the years mainly on judicial independence
97
and efficiencythe
concern of subsequent governments due to excessive length of proceedings.
98
Because of
systemic changes, the caseload increased from 2 million in 1989
99
to 15 million in 2015.
100
In
95
Marek Antoni Nowicki, Sądzić sędziego?, 1 TYGODNIK SOLIDARNOŚĆ, Jan. 3, 1992.
96
See generally OPEN SOCIETY INSTITUTE, Monitoring the EU Accession Process: Judicial Capacity (Full Report) (2002),
https://www.opensocietyfoundations.org/publications/monitoring-eu-accession-process-judicial-capacity.
97
Poland was not an exception in the region. See Michal Bobek, The Fortress of Judicial Independence and the
Mental Transitions of the Central European Judiciaries, 14.1 EUR. PUB. L. 1, 99123 (2007). See also James E.
Moliterno, Lucia Berdisová, Peter Čuroš & Ján Mazúr, Independence Without Accountability: The Harmful
Consequences of EU Policy Toward Central and Eastern European Entrants, 42 FORDHAM INTL L.J. 481 (2018).
98
There are no detailed surveys comparing, for instance, the number of positions by various bodies on particular
four elements, but many years of observation of the judiciary, changes in the law, research, and literature on the
subject allow the author to form this, even if general, view.
99
See PRZYSZŁOŚĆ POLSKIEGO WYMIARU SPRAWIEDLIWOŚCI (ADAM ZIELIŃSKI & MAREK ZUBIK, eds., 2002), at 120.
100
Andrzej Siemaszko, Paweł Ostaszewski & Justyna Włodarczyk-Madejska, Tendencje wpływu spraw do polskich
sądów powszechnych, INSTYTUT WYMIARU SPRAWIEDLIWOŚCI (2019), at 8, https://iws.gov.pl/wp-
content/uploads/2019/05/IWS-Siemaszko-Ostaszewski-W%C5%82odarczyk-Madejska-Tendencje-
wp%C5%82ywu-spraw-do-polskich-s%C4%85d%C3%B3w-powszechnych.pdf.
Ge rm an L aw J o ur na l
the same period, the number of judges increased from four to ten thousand.
101
Professional
competence was built mainly based on traditional methodology without systemic and critical
interpretation of the law and so-called soft, extra-legal skills. Finally, accountability of the
judiciary, particular courts, and judges was not a focusquite frankly, it was hardly known
as a concept and often mistaken for, and limited to professional/disciplinary responsibility.
102
Politicians, and sometimes academics, blame judges for not undertaking the proper judicial
reform.
103
However, in Poland, it is the executive with the Ministry of Justice (MoJ) that is
legally responsible for the administration of justice. Judicial governance is only partially left
to courts. In fact, it is exercised mostly by politicians.
The judiciary has no representation at the state level; a counter partner for relations with the
legislature and the executive, it has no think tanks to conduct research and design reforms
and no legislative initiative to initiate changes in the law. These tasks could be partially
fulfilled by the NCJ, but it was not conceived of as a body representing judges and managing
courts, but as a platform where representatives of various authorities meet with duties
limited mainly to appointing judges, giving opinions on draft laws, and ensuring the
independence of the judiciary.
On one hand, there were calls from CSOs for the NCJ to expand its role as a think tank and
initiator of research and reform, but the Council performed this role to a very limited
extent.
104
On the other hand, both the Council and judicial associations initiated discussions
on changing the management model for the judiciary from ministerial to independent be it
by the Supreme Court or the National Council of the Judiciary with significantly extended
powers.
105
But the topic was never seriously addressed by the rulers.
101
See Paid employees in common courts [Jednostki sądownictwa powszechnego i zatrudnieni sędziowie], database
prepared by the Ministry of Justice, isws.ms.gov.pl/pl/baza-statystyczna/opracowania-
wieloletnie/download,2853,13.html.
102
The word accountability had no direct equivalent in Polish. The word ‘odpowiedzialność’ (responsibility) was
used. Such an equivalent of accountability—rozliczalność—has been proposed, but has only partially caught on.
103
See Bobek, supra note 97. See also Adam Czarnota, Rule of Law as an Outcome of Crisis, 8.2 HAGUE J. RULE L. 311
21 (2016). However, Czarnota’s criticism is, in my opinion, partly unfounded and exaggerated.
104
Łukasz Bojarski, Rola działań i dorobku organizacji pozarządowych w kształtowaniu programów szkoleń dla
sędziów, KRAJOWA RADA SĄDOWNICTWA. KWARTALNIK (2013/3).
105
See Konferencja Krajowej Rady Sądownictwa i Senatu RP, Model Nadzoru nad Działalnością Sądów i Pracą
Orzeczniczą Sędziów (Jan. 8, 2014); Okrągły Stół dla Sądownictwa, Dlaczego chcemy obrad Okrągłego Stołu? Idea
projektu i program pierwszej debaty, IUSTITIA (Feb. 11, 2012), https://www.iustitia.pl/porozumienie-szisp/501-
okragly-stol-dla-sadownictwa.
Ge rm an L aw J o ur na l
During the entire period, there was very little research and empirical studies on the
judiciary.
106
The public administration and Academia did very little research on the actual
functioning, legitimacy, perception of the courts, on working conditions, the role of the court
staff, the court administration, and other similar topics. Most subsequent governments
lacked a strategic approach to the judicial reform.
107
In 19902015 ministers of justice
alternated, on average, once a yeartwenty-five changes in twenty-five years.
108
Instead of
building a common bipartisan strategy, ministers experimented, introducing fast and not
adequately prepared changes often based more on the intuition and experience of
temporary employees in the MoJ than on the research, surveys, and hard data.
109
Institutional memory was missing.
110
For the assessment of the role which judges could have played in the reforms of the system,
it is relevant to understand that for years they were treated by the changing rulers as an
object of politics rather than a partner. The judges’ workload was constantly increasing due
to the widening of the ‘right to court.’ At the same time, judges faced problems in ensuring
the appropriate organization and resources for their work. I share the opinion that the
judiciary could have done more within the framework of its powers. However, the model of
administrative supervision
111
over the courts by the Ministry of Justice adopted in Poland
significantly limited judges’ initiative.
112
106
See Michał Szwast & Barbara Grabowska-Moroz, Instytut Wymiaru Sprawiedliwości niezbędny think tank, czy
niepotrzebny anachronizm?, HELSIŃSKA FUNDACJA PRAW CZŁOWIEKA (2015). See also Łukasz Bojarski, Fakty nie mają siły
przebicia, PRAWNIK, DZIENNIK GAZETA PRAWNA C6C7 (Nov. 13, 2015).
107
Some ministers undertook attempts of building the strategy but these processes were stopped for various
reasons.
108
See Wolna Encyklopedia, MINISTERSTWO SPRAWIEDLIWOŚCI (POLSKA), WIKIPEDIA,
https://pl.wikipedia.org/wiki/Ministerstwo_Sprawiedliwo%C5%9Bci_(Polska)#Lista_ministr%C3%B3w_sprawiedli
wo%C5%9Bci_i_prokurator%C3%B3w_generalnych.
109
See Dawid Sześciło & Jarosław Bełdowski, Reformatorzy i hamulcowi: przegląd działań ministrów sprawiedliwości
po 1989 r., FORUM OBYWATELSKIEGO ROZWOJU (2010).
110
It sounds anecdotal, but MoJ’s employees brought by new governments phoned CSOs activists— including
authorto inquire about works undertook by their predecessors.
111
The common usage of this legal term is significant: “administrative supervision” (nadzór administracyjny) and
not for instance “judicial governance.”
112
Interestingly, sixteen Voivodship Administrative Courts and the Supreme Administrative Court (SAC) have
separate systems of governance in which the President of the SAC plays the role of the MoJ. And those courts have
been rated as better than common courts, both in terms of their performance and the working conditions of judges.
Ge rm an L aw J o ur na l
This governments’ withdrawal, or ‘minimalism’ when it comes to the research and strategic
reform of the judiciary and the inactivity of the judiciary itself has led to the considerable
involvement of the CSOs in matters that would typically be left to other entities. Civic
activities after 1989 developed rapidly. The growth of the sector was significant. New laws
on associations and foundations were passed and the number of CSOs expanded greatly from
a number close to zero in 1989 to about 100,000 active organizations in 2018.
113
Finally, significant development helped establish particular kinds of CSOsjudicial
associations, first ‘Iustitia’ and later other organizations that are smaller but essential for the
development of the judiciary and its relations with society. Association of Adjudicating
Judges, ‘Iustitia’, founded in 1990, was the first independent judicial association in Poland.
114
The first president of Iustitia, Supreme Court judge Teresa Romer describes its objectives as
follows:
The assumption was to provide the society with judges
representing not only the highest professional, but also
the highest moral and intellectual level. We wanted to
have the best judges in the Association, who would set
an example to others. We did not want to create a “mass
organization.”
115
Other CSOs had also played a role in establishing and the development of Iustitia.
Representatives of the Polish Helsinki Committee organized
116
a visit to Poland of Judge
François Guichard, President of MEDEL, the organization grouping judicial associations in
Europe which accepted Iustitia as its member.
117
Stefan Batory Foundation supported Iustitia
with financial grants. Other CSOs, especially the Helsinki Foundation for Human Rights, had
invited judges to common projectsseveral of them are mentioned below. And as declared
113
See Beata Charycka & Marta Gumkowska, The Capacity of NGOs in PolandKey Facts, KLON/JAWOR ASSOCIATION,
3 (2018), https://api.ngo.pl/media/get/110579.
114
Association of Polish Judges “Iustitia” presently gathers over 3500 members, one-third of judges. See Iustitia
Stowarzyszenie Sędziów Polskich, About Us, IUSTITIA, https://www.iustitia.pl/en/about-us/about-us.
115
See Interview by Grzegorz Szacoń with Maria Teresa Romer, IUSTITIA 1(1)/2010 (Dec. 31, 2011),
https://www.kwartalnikiustitia.pl/pozostaje-szeregowym-czlonkiem-%e2%80%9eiustitii-i-nie-narzekam-ztego-
powodu-z-sedzia-maria-teresa-romer-rozmawia,2122.
116
Interview with Marek Antoni Nowicki (Dec. 2020).
117
See Magistrats Européens pour la Démocratie et les Liberties, MEMBER ORGANIZATIONS OF MEDEL (Mar. 1, 2012),
https://www.medelnet.eu/index.php/association/member-organisations. Interview with Marek Antoni Nowicki
(Dec. 2020).
Ge rm an L aw J o ur na l
by Judge Romer, Iustitia was not a judicial trade union; it was for many years an organization
focused on judicial independence, but also on competence, accountability, and judicial ethos.
Judges from Iustitia called regularly for the judicial reforms.
II. Together or Separately? Cooperation, Interactions, Communication between the Judiciary
and CSOs
In January 1990, some members of the Polish Helsinki Committee founded the Helsinki
Foundation for Human Rights (HFHR)a CSO that played a significant, often innovative, role
in building the relationship between the justice system and civil society.
118
The HFHR
dedicated itself to building the division of powers and independence of courts through
advocacy, legislative proposals, and training.
The HFHR pointed out the necessity for fundamental changes resulting from the state of the
judiciary as inherited from the People’s Republic. Ewa Łętowska,
119
after serving as the first
Polish Ombudsperson (198892), cooperated with HFHR for some years and diagnosed the
situation with a subtlety rare at that time.
120
Writing about the educational needs of judges
and the role to be played by CSOs, she summarized previous experiences and future needs,
pointing out that judges were seen, and saw themselves, as a part of the state apparatus.
They lacked the ability of judicial review and direct application of the constitution and
international standards. According to Łętowska, judges lacked knowledge but mostly needed
practical legal interpretation skills and adequate attitudesa sense of core values built on
human rights and the rule of law.
121
Łętowska drew attention to transparency as a condition for the legitimacy of courts and to
an obligation of judges and courts to conduct dialogue with society and to report on the
exercise of judicial power. Her writings from the mid-1990s read like a list of tasks that were
undertaken later for years, often by CSOs. However, Łętowska also acknowledges the
118
See HELSIŃSKA FUNDAJA PRAW CZŁOWIEKA, https://www.hfhr.pl/fundacja/. The Helsinki Committee remained a
group of people that during important public debates issue laconic statements underlying the importance of
fundamental rights.
119
Professor of law, later also a judge of the Supreme Administrative Court and the Constitutional Tribunal.
120
Mainly in internal HFHR documents, but also in some academic writings. See Ewa Łętowska, Peryferyjne
zmagania z nowoczesnym państwem prawa. O transformacji w Polsce w latach 1988–2016 (unpublished
manuscript). This was partly translated and published without historical background as Ewa Łętowska, Polen:
Nedbrytningen av rättsstaten 3661, in PETRA BÁRD, JOHAN HIRSCHFELDT, EWA ŁĘTOWSKA, LAURENT PECH & FREDRIK STERZEL,
HOTEN MOT RÄTTSSTATEN I EUROPA (2017).
121
Ewa Łętowska, O potrzebie i możliwościach kształcenia sędziów, w ramach działalności edukacyjnej NGOs (2000)
(unpublished manuscript).
Ge rm an L aw J o ur na l
judiciary as a discerning target group and formulates conditions that CSOs must fulfill to be
accepted as partners and work with judges efficiently. The HFHR’s activities mentioned
below, designed specifically for judges or undertaken with judges, show diverse
approaches.
122
These are selected examples from a much bigger pool of activities of more
organizations.
123
The HFHR published for three years (1993–95) a periodic bulletin “Do You Know…”,
distributed for free among journalists with the encouragement to be quoted without
providing the source. It was an ‘ABC’ of the ‘rule of law standards’ and ‘judicial review’ based
on current case law.
124
A team of authors led by Łętowska informed in plain language the
media, society, and judgesespecially from the lower courtsabout the role of courts and
judicial review in a democratic society on the national and international level. The bulletin
taught readers about fundamental rights and fair trial standards. It taught the media to
report on legal issues. For citizens, it showed that one person could win against a state in
the court of law. For judges, it showed their essential role and the tools and powers they
had in their hands.
125
Judges appeared in the HFHR educational projects as both presenters and participants. As
lecturers often acted as judges of the highest courts. In the ordinary courts and among
teachers, CSOs promoted inviting children and youth to courts and inviting judges to schools.
Judges participated in events exclusive to judges, such as courses on human rights and moot
courts based on the European Court of Human Rights (ECtHR) standards, with other legal
professions in seminars and conferences, and those addressed to the general publica post-
graduate Human Rights School organized for seventeen years, 19912008, by the HFHR.
126
During these courses, participants analyzed the role of courts in human rights protection and
judicial review in detail.
The HFHR also organized a series of meetings—called ‘a salon’—for judges and journalists
who could listen to presentations and debate while sitting around the tables and drinking
tea. They discussed cooperation and proper understanding of the professional roles of both
122
Here, I borrow fragments from an expert opinion. See Łukasz Bojarski, Communication Strategy of the Ukrainian
Judiciary: Report and Recommendations (2019) (unpublished manuscript) (on file with author).
123
For examples from other CSOs see below.
124
Supported by The German Marshall Fund and also published in three annual volumes.
125
Based on the reading of three annual volumes.
126
See Laura Koba, PRAWA CZŁOWIEKA W EDUKACJI W OKRESIE TRANSFORMACJI USTROJOWEJ W POLSCE, OFICYNA WYDAWNICZA
VOLUMEN, WARSZAWA (2014).
Ge rm an L aw J o ur na l
groups. During ‘salons’ for judges, they had an opportunity to meet with experts and talk,
often for the first time, about subjects like psychology or the language of the courtroom.
Another project, “Journalist in a Court,” encompassed a series of two-day workshops for local
judges and journalists in different jurisdictions. It was a joint project of HFHR, the Stefan
Batory Foundation, and Iustitia. The agenda included a guided discussion on the problems
and hardships of cooperation thus far, mutual expectations, and a simulation of a court
hearing where journalists played roles of trial actors and judges were assigned the roles of
the press, radio, and television journalists. The program brought different changes. For
instance, it inspired similar meetings of judges’ trainees with journalists in the Poznan
Regional Court. Adding media relations to the curriculum helped to improve their mutual
contacts. A judge who received ‘the best journalist’ title during one seminar was chosen as
his court’s spokesperson soon after the seminar. A journalist awarded ‘the best trial actor’
title became a press officer in the court in Opole after the seminar.
127
Furthermore, the judge
who co-hosted the project later became a star of the educational television series “Judge
Anna Maria Wesołowska.”
This shows thatthanks to CSOs that acted as an intermediarytwo groups that were often
unreceptive to each other—free reporting on courts’ activities and ‘social control’ of the
courts by the free media were new phenomenonhad a chance for constructive dialogue
and stepping into someone else’s shoes to better understand mutual relations, expectations,
social roles, and misrepresentations which made fair and well-informed legal reporting
difficult. Also projects like this, which were organized by CSOs with Judges Associations as
partners, were a step forward in their cooperation.
The HFHR also acted as a legal think tank in research and human rights monitoring. For
instance, a survey conducted by the HFHR in district courts in 1998 showed the terrible
working conditions of judges and the court staff, the misery of the court buildings and
infrastructure, and the weaker position of courts compared to the legislative and executive
authorities. The report, presented in parliament, aided in gaining a budget increase for the
courts.
128
This kind of approach indicated to judges that CSOs understood and appreciated
the role of courts. Apart from criticizing the quality of judges’ work, length of the
proceedings, or lack of transparency, they also advocated for decent working conditions for
127
See Łukasz Bojarski & Grzegorz Wiaderek, Szkolenie sędziów: współpraca z organizacjami pozarządowymi, in
SPRAWNY SĄD. ZBIÓR DOBRYCH PRAKTYK, CZĘŚĆ DRUGA (Łukasz Bojarski ed., 2008).
128
See Łukasz Bojarski & Jerzy Swaton, Warunki pracy sądów rejonowych: raport z monitoringu, HELSIŃSKA FUNDACJA
PRAW CZŁOWIEKA (1999) (The District Courts’ Conditions of Work: Monitoring Report; summary and table of contents
is also available in English and Russian).
Ge rm an L aw J o ur na l
judges. Many other surveys and research projects were conducted over the years, including
within the multi-year project “Monitoring of the legislative process in the area of justice.”
In 20022009, the HFHR and Justitia cooperated on the “Team for the Improvement of the
Functioning of the Judiciary.”
129
Around fifteen to twenty judges, levels ranging from the
lowest to highest courts, sought to identify, describe, and popularize best administrative and
management practices in the judiciary. At the same time, executive power sometimes
preferred to point out the “collapse of the judiciary” (zapaść wymiaru sprawiedliwości), a
commonly used expression at the time. Working pro bono on weekends, the group identified
such best practices already adopted at the level of courts, then analyzed and described them
in an accessible language according to the template, popularized them with newspapers,
books, and conferences, and hoped that they would be widely disseminated or standardized
on the country level.
130
The team believed that proven commonsense solutions, sometimes in small matters, could
find their way to other courts by showing that many changes could be introduced instantly,
independently, without a need for legislative changes, often without much money, and
without a need of seeking official approval from any higher echelons. The team's work has
inspired other judges and court presidents to implement best practices and design new
ones.
131
The project proved that at least part of the judges wanted to engage and change the
judiciary from the inside. It also indicated confidence in CSOs by some judges who decided
to work together, sharing their experiences and ideas.
The above account concentrated on the HFHR, but other CSOs also focused on different
aspects of the judiciary. The following examples do not exhaust the wealth of endeavors.
In the 1990s, the Polish Section of the International Commission of Jurists (ICJ), the lustitia,
and the Bar organized a series of ‘Constitutional Seminars for Judges and Advocates’ in all
appellate jurisdictions. Since 2000, the ICJ ran an annual competition for the European Judge
129
These projects were supported by the Stefan Batory Foundation. See About us, Fundacja Batorego, STEFAN BATORY
FOUNDATION, https://www.batory.org.pl/o-nas/o-nas/.
130
The team published three collections of best practicestwo in 2004 and one in 2008. See SPRAWNY SĄD. ZBIÓR
DOBRYCH PRAKTYK, CZĘŚĆ DRUGA (Łukasz Bojarski ed. 2008); SPRAWNY SĄD. ZBIÓR DOBRYCH PRAKTYK, WYDANIE DRUGIE (Łukasz
Bojarski ed. 2004) and SPRAWNY SĄD. ZBIÓR DOBRYCH PRAKTYK (Łukasz Bojarski ed. 2004).
131
The project inspired an extensive program of pilot courts conducted in the framework of the National School of
Judiciary and Public Prosecution. See Ewa Bałuch-Baranowska, METODYKA ZARZĄD ZANIA JEDNOSTKAMI WYMIA RU
SPRAWIEDLIWOŚCI: STUDIUM PRZYPADKU NA PRZYKŁADZIE SĄDU REJONOWEGO KATOWICE-ZACHÓD W KATOWICACH (Krzysztof
Hejosz ed., 2014); Jarosław Gwizdak, 100 Idei dla Polski. Reforma Wymiaru Sprawiedliwości, WSZYSTKO CO
NAJWAŻNIEJSZE (Dec. 18, 2016), http://xn--wszystkoconajwaniejsze-b0e.pl/.
Ge rm an L aw J o ur na l
Honorary Title, addressed to judges who “in the written grounds for their judgments or
requests for preliminary rulings, make references to arguments resulting from: The Polish
Constitution, the European Convention of Human Rights, EU law, or international law in the
broad sense.”
132
In the 2000s, the FOR Foundation conducted numerous surveys of the judiciary and
advocated for adequate reforms. Topics included a ranking of courts’ websites,
communication of courts with citizens, the effectiveness of the judiciary in the light of
international and national research, review of the activities of the Ministers of Justice after
1989, public availability of court decisions, periodic evaluation of judges’ work, and
transparency and efficiency of courts’ work.
133
Since 2010, the Court Watch Polska Foundation has trained citizens who would like to
conduct observations of court hearings. As of 2020, over three thousand people have
observed more than 45,000 hearings in 220 towns. The Foundation publishes its findings and
presents them to judges.
134
Beginning in 2015, the foundation also awards the Citizen Judge
of the Year Award to those judges “who have distinguished themselves in a special way in
the past year for citizens.”
135
Foundation E-państwo is one of the CSOs that have been regularly submitting ‘the right to
information requests’ to courts and exposing their lack of transparency.
136
For years Polish
courts were non-transparent, both with regard to court rulings, which are not available in
data basis or publications, and information on court operations.
137
132
Zbigniew Lasocik & Monika Adamczyk, Konkurs o Tytuł Honorowy "Sędzia Europejski". Cz. 2, KRAJOWA RADA
SĄDOWNICTWA. KWARTALNIK (2016/1).
133
See Forum Obywatelskiego Rozwoju, RAPORTY FOR, https://for.org.pl/pl/publikacje/raporty-for.
134
See Stanisław Burdziej & Bartosz Pilitowski, Polskie sądy z perspektywy obywateli podsumowanie pięciu lat
Programu “Obywatelski Monitoring Sądów” [Polish Courts from the Perspective of Citizens Summary of Five Years
of the “Citizen Court Monitoring” Program], KRAJOWA RADA SĄDOWNICTWA. KWARTALNIK (2014/5).
135
See Citizen Judge of the Year, FUNDACJA COURT WATCH POLSKA (last visited Aug. 31, 2021),
https://courtwatch.pl/en/action-areas/citizenss-sedzia-year/.
136
Curently (2021) Foundation changed its name to Fundacja Moje Państwo. FUNDACJA MOJE PAŃSTWO,
https://mojepanstwo.pl.
137
See MICHAŁ JAGIELSKI & MAREK NIEDUŻAK, PUBLICZNA DOSTĘPNOŚĆ ORZECZEŃ SĄDOWYCH (Forum Obywatelskiego
Rozwoju. 2010),
https://for.org.pl/upload/Nowy_Wymiar_Sprawiedliwosci/Raport_Publiczna_dostepnosc_orzeczen_sadowych.pd
f.
Ge rm an L aw J o ur na l
As already indicated, the role of judicial associations became very important. They ran with
other CSOs different joint programs mentioned above. They were the part of the judiciary
open to new ideas and promoting them among judges. For example, in 2010s judges
conducted several projects with CSOs on non-discrimination issues, including the
development of a handbook for judges or joint workshops of judges and representatives of
CSOs advocating for discriminated minorities.
138
Similarly, as partners, they organized
workshops for judges on the Charter of Fundamental Rights of the EU, in respect of which
the then-ruling parties expressed ill-founded doubts and reservations.
139
Cooperation of
CSOs with judges’ associations also resulted in establishing contacts with particular courts
and inspired those court presidents who saw the need for reforms to introduce on their
initiative various practical organizational solutions in certain local courts.
140
Finally, in 20142015, the Institute for Law and Society (INPRIS),
141
in cooperation with the
National School of Judiciary and Public Prosecution,
142
conducted the project “Together or
separately? Cooperation, interactions, communication between the judiciary and NGOs.” It
included the conference in 2014 and was the first meeting of this kindover a hundred
judges and activists from various CSOs openly shared, on equal footing, feedback on their
activitieseach workshop began with presentations of two judges and two representatives
138
Łukasz Bojarski, Dorota Pudzianowska & Jarosław Jagura, Niedyskryminacja w Praktyce Sędziowskiej: Projekty
Organizacji Obywatelskich, KRAJOWA RADA SĄDOWNICTWA. KWARTALNIK (2016/3),
http://www.krspl.home.pl/admin/files/kwartalnik/krs_03_2016_druk_prv.pdf.
139
See Łukasz Bojarski, Dieter Schindlauer & Katrin Wladasch, THE CHARTER OF FUNDAMENTAL RIGHTS AS A LIVING
INSTRUMENT: MANUAL (2014), https://www.archive.equineteurope.org/IMG/pdf/cfreu_-
_the_charter_of_fundamental_rights_as_a_living_instrument.pdf.
140
Several examples are significant, for instance Ryszarda Stasiak, president of the District Court in Płońsk and
author of numerous best practices. See Łukasz Bojarski, SPRAWNY SĄD. ZBIÓR DOBRYCH PRAKTYK, CZĘŚĆ DRUGA (2008).
Tomasz Kałużny, president of the district court in Białystok who was also an author of best practices, then worked
within the framework of EU programs; Jarosław Gwizdak, president of the District Court Katowice Zachód and the
first laureate of the title “Citizens Judge of the Year.See Jarosław Gwizdak, 100 Idei dla Polski. Reforma Wymiaru
Sprawiedliwości, WSZYSTKO CO NAJWAŻNIEJSZE (Dec. 18, 2016), http://xn--wszystkoconajwaniejsze-b0e.pl/.
141
See INSTITUTE FOR LAW & SOCIETY INPRIS, http://www.inpris.pl/ (last visited Sept. 19, 2021).
142
See Krajowa Szkoła Sądownictwa i Prokuratury, KSSIP, https://www.kssip.gov.pl/ (last visited Sept. 21, 2021).
Ge rm an L aw J o ur na l
of the CSOs.
143
It showed the great variety of CSOs’ activities related to the judiciary.
144
Examples of areas covered during different workshops included:
- CSOs’ participation in systemic measures concerning the judiciary, such as legislative
processes, and court audits, access to information on the court activities and judges;
- CSOs research projects and monitoring of the judiciary (activities of courts, communication
with citizens, judicial appointments);
- Trial observation and its different faces basic civic trial observation, professional
observation of high-profile cases, program ‘Innocence’;
- CSO’s involvement in court trials, amicus curiae brief and the like,
145
bringing impact cases
(strategic litigation);
146
- Influencing curriculum
147
and conducting training/seminars for judges
148
as well as public
education on the judiciary conducted by different CSOs;
- Cooperation of CSOs with judicial associations.
During the conference both groups openly discussed problems, provided feedback, sought
solutions, and jointly formulated recommendations. I will mention just two of them:
It is valuable to establish cooperation between the
judiciary and CSOs in the form of regular meetings
between them, allowing for exchange of experience and
143
See Łukasz Bojarski & Grzegorz Wiaderek, Razem czy osobno? Współpraca, interakcja, komunikacja wymiaru
sprawiedliwości i organizacji pozarządowych, Materiały konferencyjne INSTITUTE FOR LAW & SO CIETY INPRIS (2014),
http://www.inpris.pl/fileadmin/user_upload/documents/INPRIS-Sady-NGOs_ZAPROSZENIE-Program-wersja-do-
rozsylki_1_.pdf.
144
See Łukasz Bojarski, Razem czy osobno? Współpraca, interakcja, komunikacja wymiaru sprawiedliwości i
organizacji pozarządowych, KRAJOWA RADA SĄDOWNICTWA. KWARTALNIK (2014/4).
145
See Maciej Bernatt, Opinia przyjaciela sądu [amicus curiae] jako pomocnicza instytucja prawna w orzecznictwie
sądów polskich, in SPRAWNY SĄD. ZBIÓR DOBRYCH PRAKTYK, CZĘŚĆ DRUGA (Łukasz Bojarski ed., 2008).
146
For example, HFHR strategic litigation in case of assistant judges who were selected by NCJ for judicial positions
in 2007 and whose appointment was refused by President Lech Kaczyński without clear legal basis.
147
See Łukasz Bojarski, Rola działań i dorobku organizacji pozarządowych w kształtowaniu programów szkoleń dla
sędziów, KRAJOWA RADA SĄDOWNICTWA. KWARTALNIK (2013/3).
148
For example, the Empowering Children Foundation has introduced a training module for judges, prosecutors and
psychological experts in the field of participation of minors in the court proceedings. See Fundacja Dajemy Dzieciom
Siłę, Materiały dla Profesjonalistów Pracujących z Dziećmi Uczestniczącymi w Procedurach,
https://edukacja.fdds.pl/course/view.php?id=164. The Polish Society of Anti-Discrimination Law (PSAL) established
cooperation with the National School of Judges and Prosecutors. See Polskie Towarzystwo Prawa
Antydyskryminacyjnego, MISJA PTPA, http://ptpa.org.pl/o-nas/misja/.
Ge rm an L aw J o ur na l
timely feedback. Such cooperation can be of particular
importance in educational projects and could involve
national schools of judiciary.
Judges’ associations are a natural ally for CSOs. Judges’
associations and civil society organizations shall make
every effort to build efficient communication channels.
This will enable judges to understand CSOs and CSOs to
better understand standpoints and opinions of
judges.
149
Regardless of the, somewhat mixed, assessment of the entire twenty-five-year period, it is
worth noting that many interesting initiatives, in large part inspired by CSOs, happened “at
the last minute,” in the years 201415. The National Council of the Judiciary and its judicial
majorityseventeen out of twenty-five membersbecame more active in public debate and
communicating with society. In 2015, the NCJ finally recognized CSOs as the natural allies in
the efforts to maintain the independence of the judiciary. This was also appreciated by
awarding some representatives of the civil sector with the highest medals of the Council
Meritorious for Justice SystemBene Merentibus Iustitiae, which has never happened
before.
150
A couple of years before, the NCJ legal journal began to publish papers authored
by CSOs’ activists, summarizing different CSOs projects related to the courts, and providing
feedback for judges based on projects’ findings.
151
The Ministry of justice was also involved in these efforts. In 2014, the Ministry adopted the
‘Strategy for the modernization of the judicial area’ in which civil organizations and
communication between courts and citizens played an important role. Within the MoJ, the
Social Council for implementation of the Strategy was established and met to discuss those
149
See INSTITUTE FOR LAW & SOCIETY INPRIS, NGOs and the JudiciaryWatch Dog Activities, Interactions, Collaboration,
Communication (Łukasz Bojarski & Ewelina Tylec eds., 2016), https://ceeliinstitute.org/wp-
content/uploads/2016/07/NGOs_and_the_Judiciary_-_Final_Publication.pdf (an international project’s report on
similar subject that repeats a number of 2014 recommendations).
150
See Medal “Zasłużony dla Wymiaru Sprawiedliwości Bene Merentibus Iustitiae,” WIKIPEDIA: WOLNA ENCYKLOPEDIA,
(July 2, 2021),
https://pl.wikipedia.org/wiki/Medal_%E2%80%9EZas%C5%82u%C5%BCony_dla_Wymiaru_Sprawiedliwo%C5%9B
ci_%E2%80%93_Bene_Merentibus_Iustitiae.
151
Several of those papers published in KRAJOWA RADA SĄDOWNICTWA. KWARTALNIK are mentioned throughout this
Article.
Ge rm an L aw J o ur na l
issues.
152
A joint team of the NCJ and the Ministry of Justice focused on communication
between the courts and citizens and developed, in 2015, two relevant guidebooks.
153
The
team promoted transparency and openness to communication during meetings with judges
in all appeal jurisdictions.
154
The subsequent government after the 2015 elections did not
continue any of mentioned initiatives.
III. Far from Paradise
The projects undertaken by the HFHR and other CSOs demonstrate the multifaceted
approach. It targeted judges to show them what citizens expect from “old judges in new
times,” but it also aimed at strengthening the judges’ sense of personal and professional
agency and their authority. These projects were furthermore addressed to journalists and
citizens so they would also understand the new role of the court in a democracy. Finally, it
showed judges that CSOs were serious actors, critical ‘watch dog’ type, and supportive at the
same time. The projects also proved the development of the relationship between judges
and CSOs.
During the 2014 conference mentioned above, Ewa Łętowska argued in her keynote speech
that judges should be open to cooperation, interactions, and communication with civil
society not only because of the common good and other ideals, but because it was in the
judges’ own interest. In the era of tabloidization of the media and lack of involvement of lay
members in adjudication, competent CSOs constitute for judges an open communication
channel with the society.
155
As one may notice, this message from 2014 essentially reiterated the theses from the early
1990s, proving that, although many actions were taken over twenty-five years to bring the
courts and citizens closer, the process was far from being completed. It was only a
152
See Rada Społeczna ds. Strategii Modernizacji Przestrzeni Sprawiedliwości w Polsce, MINISTERSTWO
SPRAWIEDLIWOŚCI, https://www.gov.pl/web/sprawiedliwosc/rada-spoleczna-ds-strategii-modernizacji-przestrzeni-
sprawiedliwosci-w-polsce.
153
See Sądowe ABC dla dziennikarzy [Judicial ABC for journalists], MINISTERSTWO SPRAWIEDLIWOŚCI (2015),
https://www.arch.ms.gov.pl/pl/dzialalnosc/strategia/komunikacja/; Zbiór dobrych praktyk dla sądów
powszechnych: Komunikacja i wizerunek sądów [A collection of best practices for common courts: Communication
and image of courts], MINISTERSTWO SPRAWIEDLIWOŚCI (2015),
https://www.arch.ms.gov.pl/pl/dzialalnosc/strategia/komunikacja/.
154
See Łukasz Bojarski & Anna Twardowska, Kształtowanie polityki komunikacyjnej i wizerunkowej sądu
(prezentacja), WARSZAWA (Mar. 31, 2015) https://www.gov.pl/web/sprawiedliwosc/rada-spoleczna-ds-strategii-
modernizacji-przestrzeni-sprawiedliwosci-w-polsce.
155
See Łukasz Bojarski, Razem czy osobno? Współpraca, interakcja, komunikacja wymiaru sprawiedliwości i
organizacji pozarządowych, KRAJOWA RADA SĄDOWNICTWA. KWARTALNIK (2014/4).
Ge rm an L aw J o ur na l
coincidence that the conference reflected the state of relations and dialogue between courts,
judges, and CSOs at a crucial moment, shortly before the new government led by PiS took
power, as a result of which the relations between judges and organizations would take on a
new shape.
How can one summarize twenty-five years of building democracy in the area of our interest?
Both judges, courts, citizens, and CSOs have learned that the courts adjudicate millions of
typical cases, are the guarantor of fundamental rights, and exercise control over the other
authorities. They also learned that courts and judgesas well as the general publicneed
civic organizations.
Many systemic reforms were undertaken since 1989. The country transited from a so-called
people’s republic to a liberal democracy. The 1997 Constitution consolidated the new system
of justice. However, what was missing after the first period of dynamic reforms was a
strategic and systemic approach to the reform of the entire justice system. Who is to blame?
The 2021 ruling majority publicly railed against judges, who allegedly did not carry out the
reform themselves and resisted reform for twenty-five years, until 2015. As shown above,
this is not the whole truth. The State, as a whole, lacked strategic approach.
In the relative void created by the state’s passivity, many areas of action were opening up for
CSOs, with them replacing the state in a way. Apart from their specialized agenda, the
organizations undertook activities that would not be needed if the legislative or executive
powers had acted competently or acted at all. In some areas, organizations’ efforts to
improve standards and introduce new management practices took many years and were
successful. In others, too little has been achieved. Let us mention two examples of evident
successes.
Access to case law was significantly limited throughout 1990s and 2000s. What more, there
were judgments, including the Supreme Court ones, that could only be read after purchasing
commercial databases. Supreme Court judges, sometimes for additional remuneration,
handed over these “unavailable rulings” to publishing housesadditionally elaborated, for
example, with keywords. Many years of CSOs’ efforts have finally led to changes, creation of
databases and the widespread availability of case law.
156
The participation of CSOs’ representatives in court proceedings as observers or amicus curiae
at first, especially in 1990s, raised doubts in the courts. In 1998 the first amicus curiae brief
ever submitted by the HFHR—to the Regional Court in Płock—was rejected and returned by
156
MICHAŁ JAGIELSKI & MAREK NIEDUŻAK, PUBLICZNA DOSTĘPNOŚĆ ORZECZEŃ SĄDOWYCH (Forum Obywatelskiego Rozwoju.
2010).
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the court.
157
In the absence of explicit legal provisions allowing for such briefs to be
submitted to and relied on by the courts, judges had to be educated by CSOs about this
procedural device. It was eventually successful as, eight years later, the Constitutional
Tribunal in its ruling appreciated the role of CSOs in this capacity.
158
Likewise, over time, the
judges became accustomed to the observers.
It was also hard for CSOs’ initiatives and output to break through to other circles, such as
academia. A perfect example is the project OMKS: Research and monitoring of the vetting
and selection process for the Constitutional Court Judges and other public posts. A coalition
of CSOs executed that project since 2006, covering all appointments of CT judges, publishing
detailed reports, being present in media, organizing public hearings, elaborating candidates’
profiles, documenting and pointing out numerous shortages and weaknesses in both law and
practice, as well as formulating recommendations.
159
Scholars did not follow this subject.
Suddenly, with the attack on Tribunal in late 2015, everything has changed. Numerous
academic works and papers have begun to cover appointment procedures to the CT. Still,
they refer to the previous ten years of CSOs’ experience in the field only occasionally.
The discontinuity in the discussed period of transition from an autocratic to a democratic
state is evident and a lot has changedeven significant judicial reforms introduced
immediately after the restoration of sovereignty in 1989 had already been designed in the
previous period, during Solidarność, and later by the Social Legislative Council mentioned
above.
160
There are also examples of continuity, like a lack of the openness of judges to communication
with the public and CSOs and a lack of trust in community civic initiatives. Before 1989, CSOs
advocated for an independent judiciary, but at that time judges were treated as agents of an
undemocratic system and there were good reasons for it. There have been exceptions,
mainly associated with the Solidarność era, but as a rule, relations between judges and civil
society were minimal.
157
The brief was prepared in 1998 in the case of Bogusław Pyrak. It referred to the fair trial and pre-trial detention
standards and was critical of the court. Years later, Bogusław Pyrak won the case before the ECtHR. See Piotr
Lipiński, Pyrak agrawuje, MAGAZYN, GAZETA WYBORCZA (Oct. 30, 1998),
https://classic.wyborcza.pl/archiwumGW/584317/PYRAK-AGRAWUJE; Pyrak v. Poland, App. No. 54476/00, (Feb.
12, 2008) http://hudoc.echr.coe.int/eng?i=001-85002; Res. CM/ResDH(2014)268, Execution of the Judgments of
the European Court of Human Rights in Cases Against Poland (Dec. 4, 2014).
158
See Bernatt, supra note 145; Constitutional Tribunal, Jan. 16, 2006, SK 30/05, at. I.8, III.2.2 (Pol.).
159
See, e.g., Łukasz Bojarski, Katarzyna Furman & Krzysztof Riedel, Wybory pod społeczną kontrolą: Wybory sędziów
Trybunału Konstytucyjnego, Generalnego Inspektora Ochrony Danych Osobowych, Rzecznika Praw Obywatelskich,
Prokuratora Generalnego, Raport z monitoringu, INSTITUTE FOR LAW & SOCIETY INPRIS (2016).
160
Barczyk et al., supra note 59.
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After 1989, certain CSOs reached out to judges. The judiciary, however, was not open to this
contact and has remained hermetic. Its isolation from society continued, even though
circumstances had changed. In 19902000s, active judges open to contact with the public or
present in the media were criticized by their peers. There was a view that judges should not
go outside the courtroom and that the verdict they issue are judges’ only means of
communication.
Instead, this was a continuity of mentalities. During the communist times, the judges
regarded themselves as merely slightly glorified state officials wearing gowns. After the 1989
threshold, they immediately moved to the elevated spheres of presumed legitimacy which
they had acquired only thanks to the institutional change. This was not accompanied by an
understanding of the need to ground legitimacy of courts in communication and social
understanding of the judicial role as well as judicial understanding of social context and social
consequences of their decisions.
The quotation from the European Court of Human Rights (ECtHR) judgment shows that the
importance of exchange between the general public and the courts was not sufficiently
appreciated by the judiciary:
62. The Court notes that the appellate court suggested
that journalists in judicial reporting were obliged to limit
their reports to statements of fact and abstain from
presenting their own opinions . . . . While the Court has
stressed the importance of journalistic objectivity and
balance in the context of judicial reporting . . . it is of the
view . . . that journalists are free . . . to formulate and
disseminate their views and opinions on important
issues involved in or connected with the subject-matter
of cases under judicial consideration. In the same vein,
it is important that the courts have an opportunity to
obtain feedback on how their acts and judicial decisions
are understood and regarded by the public. Such
knowledge contributes to the quality of judicial decision-
making and to a better understanding by society at large
of the complexity of the issues involved in the
administration of justice.
161
161
Semik-Orzech v. Poland, App. No. 39900/06, para. 62 (Nov. 15, 2011), http://hudoc.echr.coe.int/eng?i=001-
107446.
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After 1989, judges were learning their new role in a democratic society, including what civil
society and accountability are. Common efforts of CSOs and judicial associations were
bringing changes; but slowly. Additional difficulty was that judges felt as if they were under
constant criticismif not attackby subsequent governments and were not receptive to
feedback. Hence, the problems that CSOs encountered when trying to encourage judges to
work or communicate with them. The CSOs’ critical messages were often treated as an attack
and the first reaction was usually defensive.
Even futurepost the 2015 political attacksymbolic figures have shown signs of limited
understanding of the role of CSOs. For instance, Małgorzata Gersdorf, president of the
Supreme Court, refused in the past to disclose public information about the activities, and
especially expenses, of the Supreme Court and was quite suspicious of the activities of CSOs
demanding disclosure of information such as expenses related to the court’s website,
contracts signed by a court, or expenses paid by company credit cards. The Supreme Court’s
President was challenged by CSO, foundation e-Państwo, in the administrative courts, lost
the cases, and had to reveal the informationwhich, by the way, proves that Poland was a
rule of law state.
162
CSOs have learned that judges must trust a particular organization and its true commitment
to the independent judiciary. According to judges, it is essential that NGOs balance the
message and focus not only on that of the judiciary as they perceive them but stay objective
and show that they understand positive aspects of the courts’ operation and the complexities
of the judicial work. This is often a controversial issue, as watchdog organizations tend to
focus on negative aspects.
163
There are different types of CSOs, including those which are not impartial, those supporting
a given particular cause or a given party, or those simply outright biased. The category of
‘civil society organization’ is broad, and it is necessary for the courts to check the mission and
objectives of the specific CSO in order to ascertain that it can be a good partner for co-
operation. Judges have to avoid improper relations with CSOs in order to maintain their
independence and impartiality. Distinctions should be made between CSOs which support
the fair administration of justice in democratic society as a value in itself and those that
advocate for interests of particular causes or groups of parties to a specific category of cases.
D. TestingTime of Defense (20152020)
162
Piotr VaGla Waglowski, Fundacja ePaństwo właśnie wygrała dwie sprawy przed NSA obie przeciwko I Prezesowi
Sądu Najwyższego, VAGLA.PL (Sept. 11, 2012), http://prawo.vagla.pl/node/9855.
163
INSTITUTE FOR LAW & SOCIETY INPRIS, NGOs and the JudiciaryWatch Dog Activities, Interactions, Collaboration,
Communication (Łukasz Bojarski & Ewelina Tylec eds., 2016).
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I. ‘Reform’ Long-AwaitedBackground
The years 20152020 have been analyzed by scholars in both comprehensive works
describing the Polish crisis chronologically
164
and studies devoted to specific issues.
165
This
Article will only point out a few critical features of the governmental actions concerning the
judiciary, which make the present situation especially threatening to the rule of law.
Strategyan attack on the courts and their independence—officially ‘reform’—seems to
have been planned in detail. The Minister of Justice declared on public television in
September 2016 that the judicial reform was prepared and ready, but it will be announced
only after solving the problem with the Constitutional Tribunal.”
166
The government
representatives argued that in the years of 20052007, when the PiS party was leading the
governing majority, the CT stopped their reforms. PiS leaders, including Jaroslaw Kaczynski,
developed the argument of legal impossibilism,” which meant that politicians want to
reform the country, but the courts won’t let them.
Focus on personnel and politicization of the courtsthe government announcedin its
wordsthe first systemic judicial reform after 1989. But in reality, it focused on the personal
takeover of courts and relevant institutions like the NCJ and its influence on decision-making
processes.
167
At the same time the efficiency indicators of the judiciary operations decreased
significantly.
168
164
See, e.g., Fryderyk Zoll & Leah Worham, Judicial Independence and Accountability: Withstanding Political Stress
in Poland, 41 FORDHAM INTL L.J. 875 (2019); WOJCIECH SADURSKI, POLAND'S CONSTITUTIONAL BREAKDOWN (2019).
165
See, e.g., WOJCIECH BIAŁOGŁOWSKI, ALEKSANDRA DĘBOWSKA, MONIKA FLORCZAK-WĄTOR, MARZENA LASKOWSKA, BOGUMIŁ
NALEZIŃSKI, AGATA NIŻNIK-MUCHA, MACIEJ PACH & JAROSŁAW SUŁKOWSKI, KONSTYTUCYJNY SPÓR O GRANICE ZMIAN ORGANIZACJI I
ZASAD DZIAŁANIA TRYBUNAŁU KONSTYTUCYJNEGO: CZERWIEC 2015 - MARZEC 2016 (PIOTR RADZIEWICZ, PIOTR TULEYA, eds., 2017)
(very detailedover 500 pages covering 9 monthsdocumentation and analyses of the first stage of the crisis
around the Constitutional Tribunal).
166
The government representatives argued that in the years 20052007, when the PiS party was leading the
governing majority, the CT has stopped their reforms. PiS leaders, including Jaroslaw Kaczynski, developed the
argument of “legal impossibilism,” which meant that politicians want to reform the country but the courts won't
let them. This is one of the reasons for the dislike of the courts. See also Łukasz Bojarski, Redefining Judicial
Independence in Poland, CONSTITUTIONNET (Apr. 29, 2017), https://constitutionnet.org/news/redefining-judicial-
independence-poland.
167
The process is described by Kim Lane Scheppele in writings on Hungary and Poland. See, e.g., Kriszta Kovács &
Kim Lane Scheppele, The Fragility of an Independent Judiciary: Lessons from Hungary and Polandand the European
Union, 51 COMMUNIS T & POST-COMMUNIST STUD. 189200 (2018). See also Laurent Pech & Kim Lane Scheppele,
Illiberalism Within: Rule of Law Backsliding in the European Union, 19 CAMBRIDGE Y.B. EUR. L. (2017).
168
See Obietnice a Rzeczywistość: Statystyki Sądów Rejonowych po Pięciu Latach Reform, IUSTITIA (2021).
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Limiting independencethe government tried to take control over the courts using anti-
communist rhetoric and branding its critics as post-communists. The politicians of the ruling
coalition refused to accept that, in the division of powers formed by the Polish Constitution,
courts are separate and independent and may control other authorities. The Prime Minister
openly stated that there is something more important than the law, the “good of the nation
and justice,” and that the latter should prevail.
169
Populism and hate speechjudges are consistently presented by the executive as a hermetic
“caste” looking after their interests, as “elitist,” as heirs and followers of communist
criminals.
170
Judges are attacked as a group and as individuals, against whom hate campaigns
are organized either directly by the Ministry of Justice or by GONGOS.
171
The Polish National
Foundation, created by the government, spent millions of PLN on a defamation campaign
against one of the governmental powersjudges.
172
A group of people around the Deputy
Minister of Justicea judge himselfsecretly planned to slander judges in media and social
media.
173
Public television produced the television series “The Cast,” which is defamatory of
judges.
174
169
See television interview with Mateusz Morawiecki, Prime Minister of Poland, DW Conflict Zone (Feb. 16, 2017),
https://www.youtube.com/watch?v=HPp7uVm-vSk. Morawiecki confirms the words of his father, MP, spoken in
the Parliament, that “law is not sacred, good of the nation is above it” and uses the example of Nazi Germany, as a
country that followed law.
170
See interview with Marcin Warchoł, Deputy Minister, Koniec z sędziokracją, W Sieci,(May 29, 2017June 06,
2017).
171
See, e.g., Justice Under PressureRepressions as a Means of Attempting to take Control over the Judiciary and
the Prosecution in Poland. Years 20152019, IUSTITIA RAPORTY (Jakub Kościerzyński ed., 2020),
https://www.iustitia.pl/en/activity/informations/3724-report-justice-under-pressure-years-2015-2019.
172
The defamatory campaign of the Polish National Foundation (PFN) entitled Just Courts,” conducted with public
funds that were provided by State Treasury enterprises. At least from April 2019 until June 2021 this was not
available on the PFN website nor even listed. See POLSKA FUNDACJA NARODOWA, www.pfn.org.pl (last visited Sept. 21,
2021).
173
See Maria Pankowska, Smear Campaign Coordinated by the Ministry of Justice, Aimed to Discredit Polish Judges,
Discovered, OKO PRESS (Aug. 27, 2019), https://oko.press/why-did-the-polish-deputy-minister-of-justice-resign-
everything-you-need-to-know-about-the-piebiak-scandal/.
174
See producer’s information, translated by author, “A para-documentary series about people wronged by ‘the
system’, the eponymous caste, or connections between judges, prosecutors, and businessmen . . . . The lawyers'
job here is to find new evidence, get the trial reviewed, and prove that the previous verdict was rigged.” See KASTA
(THE CAST), https://vod.tvp.pl/website/kasta,50162540.
Ge rm an L aw J o ur na l
No scruples in assaults on judges and courtsan attack on the courtsand individual
judgesseems truly astonishing from the point of view of human decency standards, respect
for the dignity of others, and also because of unacceptable language used by representatives
of public powers. Moreover, it also amazes professionally for procedural reasons. Many
fundamental legal changes were introduced in a flash, without public debate, without
parliamentary discussion, without opinions, often at night, by MPs who acted like a voting
machinefor example, without asking questions about what they were voting on.
175
Despite this political, governmental attack, judges as a professional group were limited in
their defense possibilities by the lack of official judicial representation on the state level and
lack of the spokesperson for the judiciary. Local judges’ assemblies and collegia, nor judges
serving as spokespersons for particular courts, could not represent the whole judiciary, could
not be a counterpart to other powers, and could not speak on behalf of the judiciary and take
part in the political media programs where judges were attacked in their absence.
One could expect the NCJ to be such a body. However this would be a mistake, since NCJ is
not a judicial body but a mixed one with members from other powers. Furthermore, this
particular body might be seen as conservative for most of the time, its openness to the
outside world, including academia, CSOs, and the legal profession, was very limited. It
preferred to discuss issues in its own circle.
176
It begun to rapidly change once the judiciary
was attacked, but that doesn’t excuse the earlier inaction.
As regards CSOs, the governmental ‘reform plan’ also included thwarting and reducing the
room for maneuver of social organizations. Every now and then, one can hear
announcements of “taking care” of organizations by introducing vetting and control.
177
The
alerted CSOs deliberated on defense strategies several times. Prominent PiS politicians
175
See Ustawa w 2 godziny 20 minut: XIII Komunikat Obywatelskiego Forum Legislacji podsumowujący aktywność
legislacyjną rządów Zjednoczonej Prawicy, Sejmu VIII kadencji i Senatu IX kadencji (20152019), FUNDACJA IM. STEFANA
BATOREGO (2019),
https://www.batory.org.pl/upload/files/Programy%20operacyjne/Forum%20Idei/Komunikat_2019-1.pdf.
176
See also Łukasz Bojarski, Krajowa Rada Sądownictwa, in Jak przywrócić państwo prawa?, FUNDACJA IM. STEFAN A
BATOREGO (Tomasz Zalasiński ed. 2019), https://www.batory.org.pl/wp-content/uploads/2020/02/Jak-przywrocic-
panstwo-prawa_Interaktywna.pdf.
177
See, e.g., Magdalena Chrzczonowicz, The Government is Preparing an Attack on NGOs in Poland, RULE OF LAW
(May 12, 2020), https://ruleoflaw.pl/the-government-is-preparing-an-attack-on-ngos-in-poland/; Poland’s New
Front: A Government’s War Against Civil Society, HUMAN RIGHTS FIRST (Aug. 2017),
https://www.humanrightsfirst.org/sites/default/files/Poland-Report-August-2017.pdf.
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declared that after gaining control over the courts, it would be time for the private,
independent media, then for the CSOs, in that order.
178
Several developments have already taken place. The National Institute of FreedomCenter
for the Development of Civil Society was created to impact the distribution of funds that have
been politicized. Grants are often awarded to newly established organizations without prior
records and funds are allocated to other objectives than originally planned.
179
There have
also been several attacks on specific organizations and activists, including a public television
hate campaign showing alleged suspicious links between activists and organizations. George
Soros is also a regular target of the public media.
The objectivity of CSOs that support judges is also being questioned. They are attacked by
the ruling camp as “leftist,” “traitorous,” or “defending the communist past.”
180
However,
these are primarily organizations independent from politicians that stand up for their
missions and keep their distance from party politics. The following example shows it well.
Before the parliamentary elections of 2015, the previous Sejm, at the very end of its term,
changed the relevant law and elected five judges of the Constitutional Tribunal, including two
“in reserve.” So, an attempt to pack the CT did not begin with the new government.
Furthermore, the CSO, the Helsinki Foundation for Human Rights, was the only entity that
openly protestedin the opinion delivered during the parliamentary consultation process
against this unconstitutional move, later confirmed as such by the judgment of the
Constitutional Tribunal. Also, the coalition of CSOs, organizations monitoring the elections to
178
Krystyna Pawłowicz, who at the time was a Member of Parliament. See Media Freedom Rapid Response,
Democracy Declining: Erosion of Media Freedom in Poland, INT ERNATIONAL PRESS INSTITUTE (Feb. 11, 2021),
https://ipi.media/mfrr-report-erosion-of-media-freedom-gathers-pace-in-poland/.
179
According to a report by the Supreme Audit Office, money from the Justice Fund that was intended to help
victims of crime was used by the Minister of Justice for other objectives, including politicalfor example, MoJ
donated to Firefighters. See Pomoc z Funduszu Pomocy Pokrzywdzonym nie dla pokrzywdzonych, NAJWYŻSZA IZBA
KONTROLI: POMAGAMY W NAPRAWIANIU PAŃSTWA (June 29, 2018), https://www.nik.gov.pl/aktualnosci/fundusz-pomocy-
pokrzywdzonym.html.
180
See Jakub Dymek, Rząd Szydło uderza w organizacje pozarządowe. Wymyślili powód. Papugują język Putina,
gazeta.pl, 31.07.2017, https://wiadomosci.gazeta.pl/wiadomosci/7,114871,22173211,dymek-rzad-szydlo-uderza-
w-organizacje-pozarzadowe-wymyslili.html; Anton Ambroziak, Wirus obcej agentury wraca do Polski. Śladem
Putina i Orbana chcą „Sorosem” wykończyć organizacje pozarządowe, oko.press, 26.07.2017,
https://oko.press/wirus-obcej-agentury-polski-orban-sorosem-chca-wykonczyc-organizacje-pozarzadowe/.
Ge rm an L aw J o ur na l
the Constitutional Tribunal, protested against the too quick and non-transparent
appointment procedure.
181
At the same time, academia remained silent.
182
Nevertheless, CSOs are active, defend the courts and judges continuously, and undertake
numerous group activities which all prove the considerable solidarity of the community. It
ranges from various public statements supported by several dozen organizations to the
campaign of civil society candidate for the position of the Ombudsperson supported by
approximately 1,200 organizations.
183
II. On a Daily BasisActivities of Citizens and Judges
Since the elections of 2015, one has witnessed a great richness and diversity of activities
related to judges’ resistance or attempts to counteract the backsliding of the rule of law
undertaken by both the judiciary and CSOs. Part of their activities have commenced
independently. However, part of what they do is collaborative, ranging from the ongoing
exchange of information to the joint development of resistance strategies and implementing
activities side by side. The framework of this Article does not allow for a detailed presentation
and analysis of all the actions undertaken by both groups. Therefore, I focus mainly on the
joint activities, showing a diversity of approaches used. It will allow us to see both the role of
CSOs vis a vis the judiciary and the role of cooperation between both communities.
When it comes to judges, due to the lack of official judicial representation and spokespersons
on the state level, advocacy for judges has been undertaken by judges’ associations, informal
judges’ initiatives,
184
and through judges’ cooperation with CSOs. No judicial association
supports the governmental “reform.” Associations most active in the judicial resistance have
been the Association of Polish Judges Iustitia, which is the oldest and biggest,
185
and the
Association of Judges Themis,
186
the second general judicial association. There are two
181
See Małgorzata Szuleka, Marcin Wolny, & Marcin Szwed, Kryzys Konstytucyjny w Polsce 20152016 (2016), at
1014, https://www.hfhr.pl/wp-content/uploads/2016/09/HFPC-Kryzys-konstytucyjny-w-Polsce-2015-2016.pdf.
182
And only months later several people, including Professor Andrzej Zoll, former president of the CT, admitted, in
response to the author’s question, that it was a mistake.
183
See Zuzanna Rudzińska-Bluszcz: Społeczna Kandydatka Na Rzecznika Praw Obywatelskich,
https://naszrzecznik.pl/.
184
See, e.g., Judges Cooperation Forum, FORUM WSPŁPRACY SĘDZIW, https://forumfws.eu/fws/.
185
See STOWARZYSZENIE SĘDZIÓW POLSKICH IUSTITIA, https://www.iustitia.pl/en/about-us/about-us.
186
See STOWARZYSZENIE SĘDZIÓW THEMIS, http://themis-sedziowie.eu/czym-sie-zajmujemy/.
Ge rm an L aw J o ur na l
specialized associations of family judges,
187
which both have occasionally joined common
initiativeslike statements signed by several judicial associations. Furthermore, the
Association of Judges of Administrative Courts was established only in February 2018 as an
expression of the willingness of administrative judges to stand up for judicial
independence.
188
It is worth noting that the Lex Super Omnia association of prosecutors has
also been formed, boldly standing up for the rule of law and working with judicial associations
and other CSOs.
189
Protests by judges against attempts to limit judicial independence began right after the
attack on the judiciary. At first, there were official positions by judges’ associations and
protests by individual judges. However, the later collective initiatives boosted the morale of
the entire professional group. These included the first ever organized ad hoc Extraordinary
Congress of Polish Judgesover 1,000 participants
190
two large Congresses of Polish
Lawyers organized by judges jointly with advocates and legal advisors,
191
and critical and
protesting resolutions adopted by dozens of general assemblies of individual regional and
appellate courts.
192
Thanks to those resolutions, the voices of judicial resistance spread all over the country.
Also, they were an expression of the opinion of the vast majority of judges—in the courts’
votesvoting against the resolutions were very rare. Finally, some resolutions underlined
the role of the civil society. For instance, in the resolution of the General Assembly of the
Gorzów Regiontotaling forty votes in favor, one against, two abstentionsjudges
concluded:
The General Assembly of Judges of the Gorzow Region
expresses its thanks to all citizens who, together with
187
See STOWARZYSZENIE SĘDZIÓW RODZINNYCH W POLSCE, http://www.sssrwp.pl; STOWARZYSZENIE SĘDZIÓW RODZINNYCH PRO
FAMILIA, http://sedziowierodzinni.pl/.
188
See OGÓLNOPOLSKIE STOWARZYSZENIE SĘDZIW SĄDÓW ADMINISTRACYJNYCH, http://osssa-sedziowie.org.pl/cel-
dzialania/. Additionally, there are some small local associations but all together over half of the judges are not
members in any association.
189
See LEX SUPER OMNIA, http://lexso.org.pl/.
190
See Katarzyna Żaczkiewicz-Zborska, Nadzwyczajny Kongres Sędziów Polskich: w obronie państwa prawa i
godności [Extraordinary Congress of Polish Judges: In Defense of the State of Law and Dignity], KRAJOWA RADA
SĄDOWNICTWA. KWARTALNIK (2016/4).
191
In Katowice, in May 2017, and in Poznań, in June 2019.
192
For copies of these documents see IUSTITIA, https://www.iustitia.pl/en/.
Ge rm an L aw J o ur na l
judges, Polish and foreign legal corporations, non-
governmental organizations and the Ombudsman, stand
up in defense of the Constitution of the Republic of
Poland, the independence of courts and the
independence of judges.
193
The crisis resulting from the government's attack on the courts has also triggered changes.
The judicial associations have become more professional and turned into efficient CSOs that
respond to challenges hours, seven days a week. Thanks to membership fees, they have their
own budget, and they use to a large extent the know-how developed by CSOs over the years.
Also, more judges than before engage in different and new activities. Iustitia and Themis are
involved in judges' resistance to the extent that this constitutes the vast majority of their
activity for the last five years.
The CSOs were supporting mentioned initiatives. In the letter of twelve CSOs to judges
gathered at the Extraordinary Congress, one reads:
As representatives of civil-society organizations
witnessing the current situation in the judiciary, but first
and foremost as citizens, we understand how important
it is to keep judges truly independent. We promise to
defend them. What we expect from the legislative and
executive powers is respect for the judiciary and
refraining from any actions which could compromise the
independence of the courts and from exerting any
pressure on judges. At the same time, we expect judges
to stand guard over our constitutional rights and
freedoms and act with the moral courage inherent in the
truly independent administration of justice . . . . Good
communication between the courts, judges, and citizens
is also of crucial importance. We strongly encourage
courts and judges to foster such communication and
take the initiative to keep society updated about what
the courts are doing.
194
193
See Iustitita, Uchwała Zgromadzenia Ogólnego Sędziów Okręgu Gorzowskiego z dnia 10 września [Resolution of
the General Assembly of Judges of the Gorzów District of September 10], IUSTITIA NEWS (Sept. 10, 2018),
www.iustitia.pl/2506-uchwala-zgromadzenia-ogolnego-sedziow-okregu-gorzowskiego-z-dnia-10-wrzesnia-2018r.
194
EXTRAORDINARY CONGRESS OF THE POLISH JUDGES (GRZEGORZ BORKOWSKI, ed., 2016), at 10304.
Ge rm an L aw J o ur na l
When it comes to civil society, since late 2015, numerous CSOs have devoted a significant
part of their activity to the issues of the rule of law and judicial independence. One can divide
them into three groups. First, organizations that previously had dealt with human rights and
the judiciary, so it was the most natural for themfor example, Amnesty International,
HFHR, INPRIS. Second, CSOs that had not dealt with such topics before, but their members
felt that they should get involvedthe latter were supported by the former, for example,
campaigning CSO, Akcja Demokracja. Finally, new organizations and movements that
emerged from the wave of protests against the authoritarian tendencieslike Komitet
Obrony Demokracji KOD, Obywatele RP
195
sometimes solely to defend the courtslike
Free Courts and Justice Defense Committee KOS.
196
It was not always an easy decision debated by the governing bodies and activists. INPRIS
illustrated this with the dilemma of “Expert v. Freedom Fighter”:
It is one thing for a legal think tank to research the
optimal number of assistants per one judge, and it is
quite another thing to discuss the government’s
proposal to fire overnight all the Supreme Court Justices.
Both problems require competent, objective analysis.
The latter issue is so important, and the solution is so
controversial that the think tank staff feels the
professional and moral duty to go further than research
experts become “freedom fighters.”
197
There are different ways to analyze CSOs' engagement and cooperation with judges after
2015. I suggest two approaches that will capture the subject best: First, looking
chronologically, and then focusing on different types of action. When it comes to the
chronological look, one may divide citizen involvement in defense of the judiciary in 2015
through 2020 into two main stages, the cut-off date being July 2017the time of wide social
protests.
195
See KOMITET OBRONY DEMOKRACJI, https://ruchkod.pl; OBYWATELE RP, https://obywatelerp.org.
196
See WOLNE SĄDY, https://wolnesady.org; See also KOMITET OBRONY SPRAWIEDLIWOŚCI,
https://komitetobronysprawiedliwosci.pl/.
197
INSTITUTE FOR LAW & SOCIETY INPRIS, HOW LEGAL THINK TANKS PROVIDE, OR FAIL TO PROVIDE, KNOWLEDGE TO GOVERNMENTS
IN CENTRAL AND EASTERN EUROPE. PO LICY PAPER (2017); LEGAL THINK TANKS AND GOVERNMENTCAPACITY BUILDING. REPORT
(ŁUKASZ BOJARSKI & FILIP WEJMAN, eds., 2017).
Ge rm an L aw J o ur na l
The Constitutional Tribunal was the first to be attacked. Beginning at 10:00 PM on November
25, 2015 and ending on November 26, 2015, after the Sejm illegally invalidated the earlier
election of Constitutional Tribunal judges, citizens spontaneously organized the first picket
in front of the Parliament. The initial picket turned into a series of protests under the slogan
Hands off the Tribunal.”
198
CSOs reacted immediately. Eight CSOs and the National Bar Council wrote the first letter to
the Venice Commission asking for intervention on December 2, 2015.
199
Although it was
known that they could not formally invite the Commission to Poland, it triggered a
discussion, which resulted in the official invitation from the government.
However, it was difficult for CSOs to convince the public to wide protests in defense of the
CT. The demonstrationswith a few exceptionsdid not gather crowds. The government
and public media, which were already politically taken over, brutally attacked the Tribunal,
accused it of “leftism,” and blocking state reforms.
200
CSOsas well as Ombudsperson and
private mediainitiated educational campaigns on the role of the CT in the state system
and the life of individual citizens. So, for instance, during demonstrations, CSO’s volunteers
answered questions about the CT, its jurisprudence, and its role in the state—“human
library” type of project. It turned out that for many years the CT itself did not build
recognizability and broad social trust due to its hermetic nature and lack of communication
with citizens. Moreover, it had been urged to do so by CSOs many years earlier.
201
For over a year, CSOs supported the Constitutional Tribunal in various ways while it was
under attack. They did so by calling people to demonstrate and picketing and publicizing the
problem in the international arena, publishing legal opinions, appearing in proceedings
before the CT as amicus curiae, and organizing debates in which the judges of the Tribunal
were suggested various defense strategies.
202
Unfortunately, the number of citizens
198
Ręce precz od Trybunału [Hands off the Tribunal]. See Łukasz Bojarski, Patrzymy na Was [We Are Looking at You],
in: PRAWNIK, DZIENNIK GAZETA PRAWNA at D67 (Nov. 22, 2016).
199
See Joint Letter from the Helsinki Foundation for Human Rights, Polish Bar Council,Institute of Law and Society
INPRIS, Center for Citizen Education, Institute of Public Affairs, Panopytkon Foundation, Stefan Batory Foundation,
Civil Development Forum, and Citizens Network Watchdog Poland, to The Venice Commission, (Dec. 2, 2015),
https://www.hfhr.pl/wp-content/uploads/2015/11/HFHR_venice_comission_2122015.pdf.
200
Notwithstanding the fact that Polish Constitutional Tribunal was rather conservative, at least in its jurisprudence
on issues such as abortion or the place of church and religion in a state.
201
See DAWID SZEŚCIŁO, TRYBUNAŁ KONSTYTUCYJNY: INFORMACJA, KOMUNIKACJA, WIZERUNEK [Consitutional Tribunal:
Information, Communication, Image] (INPRIS, 2010).
202
Interestingly, public awareness of the Constitutional Tribunal’s role rose instantly only at the end of 2020, due
to the ruling banning terminations of pregnancies with fetal defects as unconstitutional. The verdict sparked
enormous protests and also made many people aware of the role that CT can play in their lives. See Ewa Łętowska,
Ge rm an L aw J o ur na l
interested in defending the Constitutional Tribunal was not significant, and Constitutional
Tribunal judges were reluctant to undertake the strategies advisedin contrast to the later
developments regarding Supreme Court.
203
The National Council of the Judiciary was the second institution attacked throughout 2016
and 2017. Because there was no communication strategy in the past, citizens knew even less
about the National Council of the Judiciary than the Constitutional Tribunal.
204
Society began
to undergo accelerated education. First, due to a sharp critique of the NCJ by the
government and supporting media. And second, due to activities of defenders of an
independent judiciary, including the NCJ itself, judges’ associations, the legal professions,
and CSOs. Through numerous activities, organizations tried to make citizens aware of the
importance of the National Council on the Judiciary.
The Supreme Court and the ordinary courts became the target of the third attack, which was
called by some, and rightly so, a constitutional coup d'état.
205
On July 12, 2017, the
Parliament finally passed new acts on Ordinary Courts and the NCJ. Only then, the same day
at 23:30, the draft law on the Supreme Court appeared on the Parliament's websitea
document of 130 pages. This draft act, de facto liquidating the existing Supreme Court, was
not known before, including to the state organs, and was not consulted. Although developed
in the Ministry of Justice, it was submitted to the Parliament by a group of Members of
Parliament to bypass mandatory consultations.
206
The Sejm passed the law immediately
three readings in three daysand went on vacation. The Senate approved it on July 22,
2017, at 2 a.m., including bizarre errors that the authorities must have been aware of.
207
Despite the vacation time and the rapid legislative procedure, building a defense strategy
started on the first night from July 12, 2017, to July 13, 2017. A couple of days later, on July
16, 2017, two organizations, the judges’ association Iustitia and Citizens’ Action
A Tragic Constitutional Court Judgment on Abortion, VERFASSUNGSBLOG.DE (Nov. 12, 2020),
https://verfassungsblog.de/a-tragic-constitutional-court-judgment-on-abortion/.
203
It is a very interesting subject for future studies and analyses of a different kind, not just legal but also sociological
and psychological.
204
It is also often mistaken with the public court register due to the same acronyms of both institutions: KRS.
205
A phrase used, for example, in WOJCIECH SADURSKI, POLAND'S CONSTITUTIONAL BREAKDOWN (2019).
206
This is a regular government strategy of falsely submitting government bills and bypassing obligatory
consultations.
207
But, they chose not to correct them because then the bill would have to go back to the Sejm, which was already
on vacation.
Ge rm an L aw J o ur na l
Democracy,
208
organized a protest in front of the Supreme Court in Warsaw that will go
down in history. This first protest, “Chain of Lights,” grew into hundreds of local protests in
front of the court buildings, grouping thousands of people throughout Poland for several
days. On the SC building, citizens displayed the inscription, “This is our court.”
209
During
protests, the President of Poland vetoed bills on the NCJ and SC but still signed the bill on
the ordinary courts. Amended bills on the SC and the NCJ were passed several months later.
So, if compared with the CT, the case of the Supreme Court was different. Hundreds of
thousands of people defended the SC from dissolution. But, it was only the beginning, and
further engagement followed. Below, I list additional activities undertaken by CSOs to
support judges of the SC, to inspire them and mobilize them to defend the court's
independence. Determining the individual causes of specific events and behaviors of
Supreme Court judges is very difficult and would require major sociological studies.
However, thanks to participatory observation, it can be concluded with high confidence that
the role of CSOs in initiating and sustaining the SC resistance was crucial. It also seems that
after the “opening” the CSOs helped create, judges started to take increasing action on their
own initiative.
210
On the wave of the July protests, the Free Courts initiative, Wolne Sądy, was founded by four
lawyersthree advocates and a CSO activist. While it was conceived as an initiative that
brings public awareness to the role of the courtsthrough interviews and clips of famous
people and celebrities who tell short stories showing the importance of judicial
independence,it has developed into a significant enterprise.
211
The entry into force of bills on SC, on the NCJ, and on ordinary courts triggered another
critical initiativethe Justice Defense Committee (KOS) was established on June 4, 2018, by
eight organizations.
212
According to KOS, the three laws mentioned threatened the
208
Akcja Demokracja after some consultations with other CSOs, decided to engage in the defense of the courts, a
topic previously not covered by them. AKCJA DEMOKRACJA, https://www.akcjademokracja.pl/.
209
To jest nasz Sąd [This is Our Court].
210
Both, when it comes to the formulation of preliminary questions and all sorts of resolutions by various Supreme
Court panels.
211
All four founders are acting within different initiatives, mainly the Justice Defense CommitteeKOS. They were
acknowledged and rewarded on numerous occasions. Moreover, Wojciech Sadurski acknowledges them in
SADURSKI, supra note 205.
212
Komitet Obrony Sprawiedliwości KOS [Justice Defense Committee] was created by: Amnesty International, the
Helsinki Foundation for Human Rights, INSTITUTE FOR LAW & SOCIETY INPRIS, the Professor Zbigniew Holda Association,
judges’ associations Iustitia and Themis, prosecutors' association Lex Super Omnia, and the Professor Osiatyński
Ge rm an L aw J o ur na l
independence of courts and judges and thus, also the independence of other legal
professions, including advocates, legal advisors, and prosecutors. KOS declared defending
the independence of judges and the legal profession and assisting those targeted and under
pressure. Since June 2018, KOS became the central platform of cooperation between CSOs
and judicial associations.
Before establishing the KOS and in subsequent years, the involvement of CSOs and their
work with judges has been characterized by a wide variety of activities. I am describing below
events and developments that, in part, are still ongoing,
213
and some of which are non-public
in nature. The following catalog of activities and approaches used is therefore illustrative
and not exhaustive. It aims to show diversity and richness but also signalize the importance
of the CSOs' involvement.
Building a strategy for defenders of the rule of law is something that CSOs are committed
to. Regardless of the plans of individual organizations, a common strategy is established
through cooperation platforms, such as KOS. The whole legal complexjudges, prosecutors,
attorneys, and CSOsmeet regularly, discuss and decide on strategy, but also, thanks to
modern technologies and social media, stay in touch for twenty-four hours, seven days a
week. Obviously, state authorities have incomparably bigger human, organizational, and
financial resources at their disposal. However, much more limited social resources, thanks
to joint planning and sharing of tasks, allow the social side to complement and avoid
duplicating, exchange all relevant information on an ongoing basis, assist each other, and
plan joint activities.
Monitoring and archiving legal developments and cases of exerting political pressure on
judges, prosecutors, and attorneys were some of the original objectives of the KOS.
However, several initiatives try to accomplish this. Apart from the “Archive of Repression”
214
run by KOS or the archive of Iustitia, special initiatives have been set up. The “Wiktor
Osiatyński Archive” collects information, creates a calendarial of resistance, and—together
with Forum Obywatelskiego Rozwoju and Helsinki Foundation for Human RIghts runs
ruleoflaw.pl portal in English.
Assistance offered to individuals who are either the targets or victims of the attacks or
victims of the pressure put on them is the crucial element of the support organized by CSOs.
Archive. Five more organizations joined lateras of June 2021. See KOMITET OBRONY SPRAWIEDLIWOŚCI [Justice
Defense Committee], https://komitetobronysprawiedliwosci.pl/.
213
The final version of the Article was drafted in June, 2021.
214
See Archiwum Represji [Archive of Repression], KOMITET OBRONY SPRAWIEDLIWOŚCI [JUSTICE DEFENSE COMMITTEE],
https://komitetobronysprawiedliwosci.pl/archiwum-represji/.
Ge rm an L aw J o ur na l
The premise of the cooperation between judges and CSOs is that anyone who needs help
should get it. This has two dimensions, helping the individual person, but also counteracting
the tactics of state agencies and public media based on creating a chilling effect. The idea
behind the support is that everyone involved in judicial resistance should know that they will
be cared for if they need it.
Legal assistance and representation provided by attorneys cooperating with KOS for judges
and prosecutors under attack is a flag activity. Numerous attorneysboth those with a
record of previous cooperation with CSOs and new oneshandle pro bono cases of judges
accused before disciplinary bodies and judges facing their immunity being stripped to be
presented with criminal charges. This includes also representing judges in administrative,
civil, or labor cases, for instance, in proceedings involving the unjustified transfer or forced
retirement of judges.
215
Moreover, attorneys often work hand in hand with judges also
representing their colleagues.
Psychological assistance is an example of other individual assistance provided. KOS has
developed a unique system for providing this kind of support to judges and lawyers in
cooperation with the psychological and therapeutic communities.
216
In Poland, it is still
taboo for lawyers to seek psychiatric or psychological assistance.
217
KOS has created
communication channels that make it easier for lawyers and victims of political mobbing to
get professional help.
218
Moral support is another form of help for those judges and lawyers who are treated as
enemies by the authorities and those who are targets of hate campaigns and constant
harassment. It may manifest itself in various ways, like individual contacts and support,
demonstrations and letters of support in defense of concrete judges, and organized public
support to counteract often disgusting personal attacks on judges. So, for example, when a
particular judge, sometimes not previously known to the public, from a small local court is
attacked for political reasonsfor instance, for a ruling they deliveredhe or she is met
215
See Komitet Obrony Sprawiedliwości [Justice Defense Committee], Państwo, które karzeRaport Komitetu
Obrony Sprawiedliwości [The State that PunishesJustice Defense Committee Report] (2019),
https://komitetobronysprawiedliwosci.pl/panstwo-ktore-karze-raport-komitetu-obrony-sprawiedliwosci-kos/
(describing over fifty cases of judges and prosecutors).
216
See Komitet Obrony Sprawiedliwości, Pomoc Psychologiczna dla Prawników. Pakiet Informacyjny “Prawnik Pod
Presją [Psychological Assistance for Lawyers. Information Package “Lawyer Under Pressure”],
https://komitetobronysprawiedliwosci.pl/app/uploads/2019/05/ulotka-KOS_psycholodzy.jpg.
217
See Ewa Woydyłło, W Imię Temidy [In the Name of Themis], KRAJOWA RADA SĄDOWNICTWA. KWARTALNIK (2016/1).
218
See Łukasz Bojarski, Powalczmy o Sędziów, Nie Tylko o Sądy [Let's Fight for Courts, Not Only for Judges], PRAWNIK,
DZIENNIK GAZETA PRAWNA at D45 (July 10, 2018).
Ge rm an L aw J o ur na l
with expressions of sympathy and support from well-known people, the so-called legal
authorities—“big names.” And not just through the media; it is not done in public. Such
people are given the judges’ contact information and may reach them by phone or letter.
Support from these well-known and respected people is of importance to judges under
attack.
219
Involving judges into various CSOs' activities is another method. An excellent example of
involving judges suspended from office for political reasons in CSO projects is the Tour de
Constitution education campaign that started in the summer of 2021. Judges and CSO
activists travel around the country and educate about civil rights and civil liberties.
220
Strategic litigation (“test cases” or “impact cases”) constitutes a significant portion of the
cases handled by the attorneys cooperating with CSOs within KOS. These precedent-setting
cases take place before both national courts and international tribunals. High profile,
internationally discussed decisions and Polish judgments of the Court of Justice of the
European Union (CJEU) and ECtHR result from preliminary questions asked by national
courts and complaints from citizens or the European Commission. But behind almost every
such question, complaint, and ruling, there is an enormous amount of effort to prepare and
handle the case by lawyers from CSOs. These are elements largely covered by the secrecy of
the “legal kitchen,” which, for various reasons, including tactical ones, the public is not kept
informed. However, those familiar with the strategic litigation approach know the resources
required to initiate and pursue such cases.
221
Boycotting, naming, and shaming are methods used by CSOs to expose illegal state
procedures. For example, Akcja Demokracja (AD), Obywatele RP, and other CSOs were
publicly calling, in line with judicial associations, for boycotts of the illegal elections to the
NCJ. Organizations also use “naming and shaming” methodsfor instance, Akcja
Demokracja published the names of the candidates who applied to the NCJ despite the
219
Information received by the author during private conversations with judges.
220
See TOUR DE KONSTYTUCJA [TOUR OF THE CONSTIUTION], https://www.tour-de-konstytucja.pl/.
221
See a book chapter written by two advocates describing their work on the CJEU cases on behalf of The Judicial
Defense Committee: Sylwia Gregorczyk-Abram & Michał Wawrykiewicz, Terra incognita. postępowania
indywidualne w obronie sędziów Sądu Najwyższego i Naczelnego Sądu Administracyjnego. Tematyka pytań
prejudycjalnych [Terra Incognita. Individual Proceedings in Defense of Judges of the Supreme Court and the
Supreme Administrative Court. The Subject of the Questions Referred for a Preliminary Ruling], IN KONSTYTUCJA,
PRAWORZĄDNOŚĆ, WŁADZA SĄDOWNICZA: AKTUALNE PRO BLEMY TRZECIEJ WŁADZY W POLSCE [The Constitution, the Rule of Law,
the Judicial Authority: Current Problems of the Third Authority in Poland] (Łukasz Bojarski, Krzysztof Grajewski Jan
Kremer, Gabriela Ott & Waldemar Żurek eds., 2019).
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boycott on street billboards (AD collects money for such campaigns from citizens).
222
CSOs
had also picketed and blocked the seat of the NCJ. And even though the judicial members of
the NCJ were replaced, only eighteen out of 10,000 judges applied for those seatsexperts
and media quickly linked almost all of them to the Minister of Justice.
223
Other ways of
shaming judges, who have become “officials of the regime,” include publicly stigmatizing
them either in publications, ignoring them, or not shaking their handswhich is a tradition
in Poland when greeting somebody.
224
Providing information for the public about the rule of law backsliding and about concrete
cases of putting pressure on judges, prosecutors, and lawyers is another critical measure. In
cooperation with judges, CSOs develop different information strategies on actions
undertaken and numerous press releases, positions, and appeals. For example, the KOS has
held dozens of press conferences since June of 2018 to counterbalance state media releases
and communicate the truth to the public.
Educational activities have both, short-term and long-term objectives. Interestingly, one can
argue that the dynamics of social protests in defense of the courts, presented above, have
shown previous educational and communication negligence. This gap inspired authors of a
new projects. For example, Professor Zbigniew Hołda’s Association runs twice a year
aConstitutional Week, where hundreds of lawyers conduct workshops on the Constitution
for thousands of students in schools.
225
Moreover, the already mentioned new project, Tour
de Constitution, commenced. Both projects are also exampling the cooperation of CSOs with
judges. However, the number of educational activities that emerged from the crisis is much
more significant.
Advocacy and intermediation in the involvement of institutions, politicians, academics, and
media is another important way CSOs work for, or in cooperation with, judges. These include
numerous contacts, constant information exchange, meetings with representatives of
national and international institutions and organizations, and politicians, academics, and the
media. Only part of these undertakings is made public. Some of the activities commenced
222
See Akcja Demokracja, Nie Kandydujcie! Apel do Sędziów [Do Not Run! Appeal to Judges],
https://dzialaj.akcjademokracja.pl/campaigns/323.
223
See Łukasz Bojarski, 15 kolegów wiceministra, czyli o reformie KRS [15 Colleagues of the Deputy Minister, i.e. on
the Reform of the National Council of the Judiciary], PRAWNIK, DZIENNIK GAZETA PRAWNA at D45 (Apr. 18, 2017).
224
See Łukasz Bojarski, Bon ton sądowy i trybunalski [Bon Ton in a Court and Tribunal], PRAWNIK, DZIENNIK GAZETA
PRAWNA at D45 ( Nov. 5, 2019).
225
See Tydzień Konstytucyjny, STOWARZYSZENIE IM. PROF. ZBIGNIEWA HOŁDY,
http://stowarzyszenieholda.pl/projekty/tydzien-konstytucyjny/.
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by representatives of these institutions are inspired and sometimes partly organized by
CSOs. For example, the translation and transmission of important documents like the Polish
Prime Minister's motion to the Constitutional Tribunal to verify the constitutionality of the
EU Treatiesdriven by judicial mattersundertaken by KOS, allowed for quick
familiarization of foreigners with this document and the preparation of numerous
statements and articles, including scientific ones, on this topic.
226
In July 2018, in Warsaw,
crowds of people were defending the Supreme Court and its president, whom the
government wanted to retire. At the same time, in Strasbourg, activists from ObywateleRP
were handing out leaflets about the situation of Polish courts to Members of European
Parliament.
Calling judges to action, asking, sometimes “demanding,” persuading, and trying to convince
judges to behave in a particular manner is another way of acting. The situation over the SC
is a good example. In the opinion of CSO activists expressed in publications, positions, and
private communications, judges should more actively resist.
First, judges should undertake legal actions in response to state actions, especially legal
precedent strategies, including asking preliminary questions. As paradoxical as it sounds,
CSO activists are more experienced in strategic litigation than judges. Moreover, judges are
not accustomed to bringing cases about themselves.
Second, judges should communicate with the public and inform the public about the reasons
for their decisionsfor example, why they are leaving the job in a court, why they are
resigning, or why they are not resigning and resisting forced retirement. The situation
around the SC was so unclear that even educated lawyers found it difficult to follow, not to
mention the general public. Only intensive efforts by CSOs, including convincing judges of
their obligation to communicate their decisions to citizens, began to yield some partial
results. Some judges, including the SC president, began to come out to protesting citizens,
and some judges began to explain their decisions to citizens in writing.
227
226
Rule of Law, PM Action to Review Constitutionality of EU Treaty Now in English, RULE OF LAW: ESSENTIAL READINGS
(May 20, 2021), https://ruleoflaw.pl/pm-action-to-review-constitutionality-of-eu-treaty-now-in-english/.
227
For example, Supreme Court Justice Dorota Rysińska, who took the opportunity to retire early, justified her
decision in a letter with the intention of passing this information on to citizens. See Letter from Dorota Rysińska,
Supreme Court Justice, to the Public (May 9, 2018),
www.sn.pl/aktualnosci/SiteAssets/Lists/Wydarzenia/NewForm/Odpowiedź%20na%20listy.pdf. Judge Rysińska
also made a statement regarding the rejection of additional money paid to her, which was intended to be an
incentive for judges to leave the Supreme Court. See Marek Adamski, Była sędzia SN Dorota Rysińska:
wynagrodzenie w przewidzianej nowelizacją wysokości nie jest mi należne [Former judge of the Supreme Court,
Dorota Rysińska: The Remuneration in the Amount Provided for by the Amendment is Not Due to Me],
RZECZPOSPOLITA: SĄDY I TRYBUNAŁY (Jan. 10, 2019), http://www.rp.pl/. Justice Stanisław Zabłocki, president of the
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Finally, judges should not abdicate and leave the court, despite the political attack on them
and the documents on which their departure was allegedly based. Akcja Demokracja
organized a campaign of sending postcards to judges asking them to keep their posts. For
several weeks, members of the ObywateleRP greeted incoming judges in front of the SC with
a large “Stay” banner.
228
These actions caused some of the judges who previously wanted to
resignalso in a gesture against the governmental policyto remain in the office. In the
public debate, opinions were expressed that the judges should not leave the citizens alon e
and, instead, should stay in their positions to defend the court and thus defend the rights of
citizens.
229
III. Continuity and Discontinuity
Generally, after 2015 and especially after July 2017, the cooperation of CSOs with judges
individually and groups of judges—and with judges’ associations developed and deepened.
Before 2015, we talked about thematic relations or cooperation and the implementation of
specific projects. Since late 2015, this cooperation has been limited mainly to
communication between judges and citizens, related educational activities, and, above all,
activities defined as defense of democracy, defense of the rule of law, and defense of the
independence of courts and judges. The number of other initiatives concerning the courts’
reform and improvement of their work decreased significantly.
The good relations of CSOs with the Constitutional Tribunal after December 2016the end
of the term of Constitutional Tribunal president Andrzej Rzepliński—and the National
Council of the Judiciary after April 2018establishment of a new Councilhas almost
disappeared. The majority of the legal circles no longer treat those organs as if they are in
line with the Constitution and, to emphasize this fact, call them quasi-organs, de facto tools
in the hands of politicians.
230
As for relations with the Supreme Court, they were strong until
the end of the term of office of its President, Małgorzata Gersdorf in April 2020. They have
been limited since.
Supreme Court’s Criminal Chamber, is another good example. He communicated his decisions through social media
several times, including those regarding his abdication, explaining his motivations and moral choices.
228
Wojciech Fusek, Zostańcie! Wspieramy Sędziów Sądu Najwyższego [Stay! We Support the Judges of the Supreme
Court], OBYWATELE RP: AKTUALNOŚCI (Sept. 12, 2018), https://obywatelerp.org/zostancie-wspieramy-sedziow-sadu-
najwyzszego/.
229
See Łukasz Bojarski, Sędziowie, Liczymy na Was [Judges, We Are Counting on You], PRAWNIK, DZIENNIK GAZETA
PRAWNA at D23 (Jan. 23, 2018).
230
See Marcin Matczak, The Clash of Powers in Poland’s Rule of Law Crisis: Tools of Attack and Self-Defense, 12
HAGUE J. RULE L. (2020).
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The interaction of CSOs with the judiciary at the level of ordinary courts has been also limited
due to the crisis. Until 2015, court presidents made decisions about cooperation with
organizations independently. But, because many of them have been dismissed due to
termination of the term of office, the new presidents who are appointed by the minister of
justice, are often seen as political representatives of the government and no longer
independent. Additionally, the COVID-19 pandemic compounded the constitutional crisis.
Periodic lockdowns and limited access to courts almost eliminated other activities besides
those focused on the defense of judicial independence.
However, at the same time, the previous pre-2015 experience of building mutual trust and
relations between judicial associations and CSOs seemed to bring fruits in the time of the
rule of law backsliding. The cooperation of judges with CSOs and social movements has
never been as intense and continuous as from 2015. But it has changed its character when
compared to the past. Let us have a look at the elements of discontinuity in this respect.