Poland puts forward justice reform needed to unfreeze EU funds

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Poland’s justice minister has presented a reform of the body that appoints judges, a step needed for Brussels to release the country’s frozen EU funds, but which still requires presidential approval.

Adam Bodnar told a news conference on Friday that overhauling the National Council of the Judiciary (KRS) was essential to restore the impartiality of courts, one of the main pledges made by the new coalition government led by Donald Tusk. The European Commission also made this reform a prerequisite for unfreezing EU pandemic recovery funds worth billions of euros that were blocked in a rule of law dispute with the previous Polish government.  

But the draft bill, which is likely to be approved by parliament, will need to be signed into law by President Andrzej Duda who has already joined the rightwing Law and Justice party (PiS) in efforts to obstruct Tusk’s agenda since the premier took office a month ago.

During its eight years in power, PiS defied Brussels and overhauled the judicial council to ensure that most of its members would be selected by politicians rather than judges. More than 2,000 judges were appointed to courts over that period.

The council, instead of safeguarding the independence of judges, became known as the “neo-KRS” among critics, who have also questioned the legality of rulings made by the PiS appointees. The European Court of Human Rights has ruled against the KRS for lacking independence from both the government and parliament. In 2021 the KRS was also expelled from the European umbrella association of judicial councils.

The KRS has 25 members appointed by all three branches of government, 15 of whom are judges. Under Bodnar’s reform, those judges would be again selected by peers, rather than lawmakers.

“I hope that the [KRS] bill will be approved by the president and the president will not veto it,” said Bodnar on Friday. “If this happens, we will try again, he added, perhaps by introducing “some modifications to the bill”.

But Duda, himself a PiS nominee, has already sided with the opposition in its fierce backlash against the premier and his attempts to remove PiS loyalists and overhaul state institutions.

On Friday, Bodnar also dismissed national prosecutor Dariusz Barski, one of the key appointees of the previous justice minister Zbigniew Ziobro.

Tens of thousands of PiS supporters demonstrated against Tusk in Warsaw on Thursday, and while Duda did not take part in the protest, he added fuel to the fire by defending two convicted PiS legislators he had pardoned.

Duda on Thursday offered them a fresh pardon and vowed to fight for their release, using PiS’s term of “political prisoners” in reference to them. Police had arrested them on Tuesday at his presidential palace where they had sought shelter. Duda claimed the two former ministers convicted of abuse in office should have been covered by a previous pardon he had granted them in 2015, which was annulled in court.

Bodnar warned on Friday that Duda’s new pardon proceedings could “take a long time”, suggesting that the government would not help release the MPs immediately, as the president demanded.

Piotr Bogdanowicz, a professor of EU law at Warsaw university, said there were still questions about how far-reaching Tusk’s overhaul of the judiciary could be before becoming itself subject to criticism about tampering with the rule of law.

“The most crucial and most difficult aspect is what do with judges who were wrongly appointed and judgments issued by them,” Bogdanowicz said. “If we next want to cancel rulings, then we have quite a strong intervention of the legislative power in judicial decisions.”