Our editor, Katarzyna Krzyżanowska, writes about the relation between the rule of law in Poland and the idea of legal impossibilism, providing with some worrying empirical data on administration of justice in Poland.
The Missing Element
What is the relation between the rule of law crisis and the narrative of legal impossibilism? In fact, the latter have ostensibly justified the legal changes introduced by the PiS [Law and Justice] party in Poland — the changes that have become the key topic of legal disputes in the EU sphere. Although the “rule of law” is an essentially contested concepts, there is some consensus in understanding it in a legalistic and institutional way as a set of written norms and principles. However, the rule of law cannot be reduced only to the formalistic dimension, consisting of institutional restraints that prevent the government from oppressing the rest of society.
Although important, this is merely one side of the story, which needs to be complemented by the democratic rule of law, where the emphasis is put on the interplay between the judicial institutions, the courts, and the citizens.
In Paul Blokker‘s words, the democratic rule of law includes “concern with the formal functioning of institutions in terms of the rule of law but is equally focussed on forms of accountability and capacities of engagement of a societal kind.” Therefore, this approach is much closer to the substantive rather than formal rule of law, stressing the need to engage with practical functioning of the legal norms. Only by extension of our rule of law understanding can we comprehend all the damages done to the access to justice done by the illiberal regimes.
Drawing on Fritz Scharpf’s distinction, it is worth distinguishing between the “input rule of law” and the “output rule of law”. The former puts emphasis on the institutional dimension of the rule of law – the procedures that guarantee separation of powers. Contrary to this perspective, but inseparable from it, the “output rule of law” focuses more on effective outcomes and the courts’ performance. This perspective uses an empirical approach that engages with the living rule of law, and can be connected to the concept of access to justice.
The narrative of “legal impossibilism” helps us to understand the motives behind the judicial reforms – introduced allegedly to make the law more accessible and equal for all citizens – which were then repeated in the PiS Party program in 2014 and 2019. The legal impossibilism narrative was expressed explicitly by Jarosław Kaczyński for the first time in 2010 in his famous lecture “Is there the Rule of Law in Poland?”. The narrative criticises the courts’ inefficiency, while at the same time it formulates a normative postulate to safeguard legal effectiveness and equality before the law for all ordinary citizens. Although it is not specified how this should happen, judicial reforms introduced by the PiS government since their electoral victory in 2015 show the central role of the executive in “improving” courts’ efficiency.
Legal Impossibilism — A Complex and Contested Concept
The term legal impossibilism is a threefold concept. First, it indicates a selective enforcement in punishing the strong people “belonging to the establishment.” This discriminatory application of law is attributed to the corruption of the judicial elite, which in large part stems from the communist nomenklatura. Secondly, Kaczyński defines legal impossibilism as “limitations in the functioning of the judiciary.” The PiS leader draws attention to the courts’ systemic inefficiency – the courts need to deal with too many obligations, management of which becomes technically impossible. Finally, Kaczyński links legal impossibilism to the legal limitations that hinder “the rational freedom of decision-making by officials.”
It is clear then that legal impossibilism encompasses diverse elements, but the scholarship has been mostly interested only in the latter point — how Kaczyński’s reluctance towards constitutional checks and balances is linked to the actual dismantling of the institutional rule of law in Poland. This term was framed as belonging to the populist imaginary that criticised the liberal state because it is based on excessive formalism.
The second element of legal impossibilism is ineffective courts and biased judges. Without judicial independence and coherent procedures the courts cannot deliver their judgements efficiently and gain citizens’ support for the rule of law. It seems that Kaczyński generally agrees with this normative picture – he does not deny the need for the courts to protect weaker citizens. However, he argues that this ideal was improperly implemented in Poland after the 1989 political transformation.
Then there is the third dimension, which is no less important: the issue of effective judicial protection and access to justice. Effective judicial review is indeed included on the checklist of the Venice Commission, but it is rarely mentioned in the rule of law breakdown debates. Here, the rule of law becomes a social fact which can be observed, experienced and measured.
The output rule of law derives its legitimacy from the citizens’ hands-on experience. The more efficient and procedurally well-organised the courts are, the more people are likely to submit their disputes before the courts and consequently be more likely to support the rule of law.
The state’s role is to safeguard the principle of judicial independence and to offer procedures that guarantee adequate access to justice for each citizen. And in fact, the Polish constitution guarantees a right of access to the courts. Through this right, the Polish Constitutional Tribunal has recognised the right to obtain a decision without a delay. The legislator has even foreseen a remedy for the infringement of this right – in cases of higher than normal disposition time, a petition to the court can be lodged.
Empirical evidence of the rule of law crisis
In his 2010 lecture, Kaczyński pointed out the problems of excessive disposition time and the overall ineffective organisation of the courts (in fact, there were several attempts over the past decade to re-organise the courts’ architecture, but mostly they were reversed after some time). Legal impossibilism can be thus understood as a positive postulate to guarantee access to justice and effective judicial review. Nevertheless, it can be already stated that the reforms introduced by the PiS government did not improve judicial performance, but instead caused the opposite effects.
First of all, the anti-judicial campaign initiated by the government in 2017 aimed precisely to undermine trust in the courts. One could name this action as “political mobbing”, defined by Marek Safjan as “the direct, transparent forms of the political acts against the independence of courts and judges,” which could target i) the judiciary as a whole, ii) the judges personally or iii) the institutions (such as scope of competences, internal rules, and enforcement of the judgements). The PiS campaign has targeted all three of these elements of judicial independence.
It could be carefully stated that the campaign had a short-term impact on public trust in the courts: in 2018 only 33% of citizens expressed trust in courts (whereas in 2012 and 2016 it was 45%, but in 2020 it came back up again to 42%).
According to the EU Justice Scoreboard, the perceived independence of courts and judges in Poland is one of the lowest in the EU – 24% of the respondents declared that it is “very bad”, compared to 2% in Denmark, 10% in Hungary, 26% in Slovakia and 31% in Croatia. It is the worst score of the perceived judicial independence in Poland since the survey started being conducted.
The overall picture of the reform, as perceived by citizens, can be deduced from a survey in which respondents were asked to pick three claims that best describe the situation in the Polish legal system after the changes. The most popular one, chosen by 44% of respondents, was the answer “chaos.” The second was “politicisation of judiciary” with 33% and third were “fight against miscarriages of justice” with 31%. There is no dominant opinion on the reform in Polish society: 31% was against it, 30% supported it, 30% partly supported it and partly was against it. The CBOS survey from 2017 indicates that there has been no change as far as the most significant problem of the Polish legal system is concerned: the problem of protracted legal proceedings (48% of the respondents picked this problem in 2017, and 49% in 2012). People who had contact with the courts more often have pointed out this issue more prominently.
Knowing the public opinion on judicial effectiveness, it is worth confronting it with the facts. The indices of disposition time went up in almost all types of cases adjudicated in the first instance courts. According to the official data published by the institution subordinated to the Ministry of Justice, for a decision in the first instance one had to wait on average for 7 months in 2020 – almost twice as long as in 2015. Even if we exclude data from the pandemic year, the average disposition time in 2019 in all courts of the first instance amounted to 5.8 months. Similar rises has been observed in the regional courts in general, and then in civil and criminal cases. No official data regarding the proceedings in the appellate courts are available, but some judges estimate that for a biding decision in the appellate court one may have to wait for even two years.
It would be useful to compare these indicators with the average disposition time of courts in EU Member States. As the recent report by the Council of Europe European Commission for the Efficiency of Justice (CEPEJ) indicates, in Poland there is indeed a rising trend in disposition time in civil and commercial litigation at first instance, as well as in criminal cases. This rise is significant and already started to produce a backlog in 2018. The average time in Poland in 2018 for such a case was 273 days, whereas the average in all analysed countries amounted to 233 days. The highest disposition time is in Greece (559 days). Thus should not come as a surprise, however, since civil cases are the most numerous, and many changes to the civil procedure have been introduced in Poland.
Although the disposition time in courts has not fallen, the production of law has accelerated. It is worth recalling that the PiS political program from 2014 foresaw a radical reduction in numerous and speedy changes to the legal system. The program indicated two things: the law should not be produced so fast, and that it should not be produced in excess. However, empirical data prove that neither of these postulates was realised. After PiS gained power in 2015, it produced the highest number of pages of statutes in recent Polish history (with a markedly significant year of 2016). However, this number has dropped because of the pandemic.
The intention to slow down the tempo of law production has not been realised either.
Although in 2020 the number of days needed for promulgation of law has risen from 69 to 77, these numbers are still high compared to the past years. Moreover, the percentage of the laws proposed by the Council of Ministers that were promulgated with no public consultation is constantly rising: from 23% in 2015 to 44% in 2019.
It can hardly be stated that the reforms introduced by the PiS government have led to the creation of a citizen-friendly legal system. The legal changes have had rather adverse effects on the democratic support for the rule of law in general, and have not impacted positively upon the disposition time of judicial review. The institutional dimensions of rule of law backsliding are important, and have been widely discussed with good reason. However, it is worth remembering this citizen perspective when discussing the rule of law breakdown in Poland.
In collaboration with Oliver Garner
This article is based on a presentation given on 10th June 2021 at the conference ‘Rule of Law in the EU: Consensus and Discontents’