Constitutional, Legislative and Judicial Framework Developments 55

Regarding judicial framework, Polish courts can be perceived as entities that function independently from the executive, and are viewed as financially stable institutions. Besides lower level (local) courts, Polish judiciary system leans on both Constitutional Tribunal and Supreme Court. Both of their justices are elected based on varying guidelines: National Council of the Judiciary, which is a constitutional body, ensures the selection of Supreme Court, while the Constitutional Tribunal’s 15 justices are elected based on Sejm’s absolute majority voting. These justices are elected for a term of nine years. The President of Poland then appoints the president as well as vice-president of the Tribunal from these 15 justices, based on the merits of the applicants (Matthes, Markowski & Bönker, 2016, p.17-18).

However, in June 2015 several amendments were introduced by the PO-PSL coalition, attempting to implement a systematic reform to the Law on the Constitutional Tribunal. The judicial system was altered from “[…] an inquisitorial to an adversarial system in which the judge will now act as a neutral arbiter and the prosecutor’s office is responsible for gathering

evidence” (Arak & Żakowiecki, 2016, p.9). To add, the legislative adjustments made to the

Law on the Constitutional Tribunal led to the creation of tighter deadlines for proposing candidates that would replace those existing Tribunal judges (Matthes, Markowski & Bönker, 2016, p.17-18). These constitutional changes cultivated to the replacement of some of the Tribunal’s judges already before the Polish parliamentary elections even did take place. The coalition of PO-PSL, which had initiated the constitutional amendments, justified its legislative reforms as an act of trying to ensure the continuity of the Tribunal. However, these

changes were openly criticized by PiS party, which claimed that these efforts had been taken to prevent the future government from electing the new judges of the Constitutional Tribunal

(Matthes, Markowski & Bönker, 2016, p.17-18; Arak & Żakowiecki, 2016, p.9).

Overall, the Constitutional Tribunal can be seen as holding a good reputation among citizens, but also with experts, especially in comparison to lower level Polish courts. As mentioned before, both lengthy proceeding times, as well as a lack of coherent legal aid system, are the most significant challenges of the judiciary system. These aspects have also received criticism from the European Court of Human Rights. The European Court of Human Rights launched in July 2015, “a pilot judgment against Poland demanding long-term efforts to improve the speed in which cased are handled within the judicial system”, which was introduced around the same time when Poland’s Criminal Code was implemented. The amended Criminal Code “[…] makes it easier to use fines and penalties for speeding up lawsuits, but has been criticized for the constraints it places on the independence of courts and judges” (Matthes, Markowski & Bönker, 2016, p.17). After the Polish Parliamentary elections in late 2015, the new ruling government decided to amend yet again the Law on Constitutional Court in order to invalidate the previous parliament's decisions regarding recently appointed judges, president and vice-president. These efforts were perceived as an attempt of PiS in limiting the current President of the Court, Andrzej Rzeplinski’s power, so that his possible intentions of “making it more difficult for government bills to pass scrutiny” would be challenged (The Economist Intelligence Unit, 2015, para 6).

In the beginning of December 2015, the Constitutional Court ruled that the PO-PSL government had breached the constitution by appointing two out of five judges, yet also pointing out that the rest were appointed on a legal basis. A few days later, the court ruled against PiS government, underlining how the PiS had illegally removed the previously selected appointees, including the president and vice-president, therefore PiS government decision was also breaching the constitution. The government responded to this ruling by announcing “[…] that it would not publish—or at least would delay publishing—the ruling in the official Journal of Laws, preventing it from coming into effect. This stand-off has given the government the chance to reiterate its arguments that Poland's institutional architecture is fundamentally dysfunctional, and thereby to re-open the question of wholesale constitutional reform” (The Economist Intelligence Unit, 2015, para 8).

As a reaction to PiS led governments to replace the Constitutional Court appointed judges, president and vice-president, and as a response to the ruling of the Constitutional Court condemning the changes, several large protests broke out in December 2015 as a protest against the new government. Furthermore, PiS was accused of trying to replace the previously selected and elected appointees with their own candidates. Furthermore, these changes have shed the light on the status of democratic institutions in Poland and raised questions about the status of liberal, institutional checks and balances since the new government had been formed. To add, “The PiS's readiness to set about institutional change

will stir memories of its stint in office in 2005‑07, pointing to risk of greater political

instability ahead than we had previously expected” (The Economist Intelligence Unit, 2015, para 1).

In addition to the widely criticized amendments regarding the Court changes, yet another question has arisen about the PiS attempt to regulate the immunity-waiving procedure, which if implemented, would “[…] facilitate the prosecution of certain officials elected by the Sejm, most notably the chief of the Supreme Audit Office, the Ombudsman, and the Inspector General for Personal Data Protection”. This law would provide an opportunity for the Ministry of Justice in Poland, or on the basis of a citizen’s complaint, to trigger an immunity- waiving procedure. However, numerous critics have questioned this law suggestion, as it has been perceived as an attempt of PiS to frame and target Ombudsman Adam Bodnar, whose selection PiS has strongly criticized. By the end of December 2015, PiS initiated the process of implementation of a new law that would adjust the role of Minister of Justice. A new law on Prosecutor General would modify the role of Minister of Justice so that it would hold the power to control directly all public prosecutors and hold the power to overrule those decisions made by investigators, as well as to take over the cases. Furthermore, the National Prosecutors’ Council would serve as an advisory body, “[…] losing disciplinary powers over

the Prosecutor General” (Arak & Żakowiecki, 2016, p.9).