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Poland's judiciary was a tool of its government. New leaders are trying to undo that
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WARSAW, Poland — When the right-wing Law and Justice party was voted into office eight years ago, it controlled the Polish government's legislative and executive branches. The only branch left standing in the way of its political agenda was the judiciary.
The party went straight to work.
First, it stacked Poland's constitutional court with loyal judges. Then, it took over the body in charge of safeguarding the independence of the courts and appointing the nation's judges.
Over the next several years, nearly 3,000 new judges were appointed by a body that was stacked by the Law and Justice-led government with loyalists in a process legal scholars deem unconstitutional. If any judges already in the system spoke out against these changes, the party created rules that would punish them.
The European Union withheld tens of billions of euros in aid from Poland, condemning the previous government's judicial overhaul as a violation of the Polish courts' independence.
Now, the new Polish government led by Prime Minister Donald Tusk pledges to restore the country's independent judiciary, and hopes to unfreeze those EU funds. But experts say it faces a tough path to get it done.
A judge was suspended for speaking out
Warsaw Judge Igor Tuleya was one of the first to object to the Law and Justice government's reforms. He was punished after publicly asking the European Court of Justice to intervene, but Poland's Supreme Court later reinstated him.
"I was suspended for two years for speaking out," Tuleya says. "But now I'm back."
Tuleya's suspension made the now 53-year-old judge a celebrity in Poland. The jurist's face, which bears a resemblance to actor Willem Dafoe — but framed by Clark Kent-style glasses — is graffitied across buildings in Warsaw and printed on T-shirts worn by democracy activists, an icon of the fight for democracy in Poland.
After two years away from the bench, Tuleya, a district court judge in Warsaw, says it's surreal to be back in the courtroom.
"In my department, half of our 15 judges are newly appointed ones from the Law and Justice party," he says.
The far-right inroads into Poland's judiciary are enduring
After eight years of Law and Justice party rule, 30% of Poland's judges are recent appointees who were placed on the bench by a body controlled by the Law and Justice Party.
This is just one of the many challenges facing Prime Minister Tusk's new government as it attempts to undo the previous administration's deep overhaul of the judiciary.
"It turns out that defending the rule of law is easier than rebuilding it," says Tuleya. "One could say that the rule of law in Poland is, to use a medical term, in a terminal state. It's dying."
Arkadiusz Myrcha, deputy minister of justice, agrees. He and his colleagues are spearheading what they pledge will be Poland's democratic reconstruction.
"The damage the previous government inflicted on our legal system is a catastrophe," he says. "It runs deep on a systemic level. This is not a task that'll take months or a year. It's going to take an entire term of office to undo."
Part of the problem, say legal experts, is that the very courts that determine whether a law is constitutional were changed by the previous government in ways that were unconstitutional. These transformed courts now stand as a legal barrier to any further reforms to them.
It's Myrcha's job to find ways around these barriers.
"We cannot start with the assumption that things can't be changed or that there are too many traps that were created to prevent us from moving forward," Myrcha says. "We must have ideas for everything in order to repair these institutions. And we do this understanding that any new law — and in most cases that's what's needed — will be vetoed by the president."
President Andrzej Duda, an ally of the previous right-wing government, stands at the ready to veto any bills aiming to reverse the Law and Justice party's changes to the judicial system.
Malgorzata Paprocka, a presidential cabinet member who's an adviser to Duda, says reversing the changes the Law and Justice party made could be disastrous. For example, Paprocka says a proposal to remove the 3,000 judges appointed during Law and Justice's tenure could cause all sorts of legal problems.
"Try to imagine the consequences that would have for our citizens," Paprocka says. "It could undermine tens of millions of rulings they've made. The president, as the head of state and guardian of the constitution cannot allow such a gigantic crisis of the state and harm to the citizens."
Deputy Justice Minister Myrcha says the changes sought by the Tusk government are less focused on the judges themselves and more on how they got to their positions.
He says most of the judges are well-trained lawyers who will remain on the bench. Repairing their nomination process so that it's constitutional is what the new government is after, says Myrcha.
And as for the president standing in the new government's way, Myrcha says next year there will be a presidential election that could solve that problem.
Poland's judicial remake had impacts beyond the country's borders
Myrcha's boss, recently appointed Justice Minister Adam Bodnar, spoke to NPR on the campaign trail last summer about why Poland's judicial overhaul is crucial.
"I think that the most important task is the signal that will be sent to both [the] domestic and international audience by [the] new leaders of Poland," Bodnar said, "that from now on we protect the rule-of-law principle, that we obey the law, that we behave in a way that is in compliance with basic standards of a typical democratic country."
If Poland is successful at sending that signal, he said, then it will be far easier to repair the country's democratic institutions. Bodnar took this idea to Brussels on Tuesday, where he presented a plan to EU ministers that would restore the rule of law to Poland.
The EU is hopeful. European Commission President Ursula von der Leyen said on X (formerly Twitter) that this week the commission will consider releasing $148.5 billion in funding for Poland that's been frozen.
Warsaw Judge Tuleya says, from a legal perspective, the way Bodnar and his team in the Justice Ministry are moving forward is aggressive but effective — finding loopholes in the law to repair the damage, moving forward, and then reassessing when there is either a judicial or presidential obstacle thrown in their path.
"They look for loopholes and for solutions and they press on," Tuleya observes. "That being said, my impression is that everything is within the bounds of the law."
These moves are part of an aggressive strategy to restore democratic institutions that Tusk has called the "iron broom." Tuleya says the survival of Poland's democracy depends on it.
Tuleya has done his part, too.
During his two-year suspension, he traveled throughout Poland to speak to young people about how the Law and Justice party weakened Poland's democracy. He was recently awarded "Jurist of the Year" by Northwestern University's Pritzker School of Law in Chicago for his efforts to preserve the rule of law in Poland.
Tuleya says he was recently reminded of his celebrity inside his courtroom.
"I was sentencing someone and the man who was about to be escorted to prison took out a magazine with my photo on the cover," Tuleya recalls. "He asked me if he could get my autograph. He was being serious."
Tuleya shook his head, "no," and police escorted the man to prison, in accordance with the laws of Poland.
Grzegorz Sokol contributed reporting.
Correction
The first version of this story described 3,000 new judges as "loyal to the Law and Justice Party." It was the body that appointed the judges that was loyal to the Law and Justice Party.
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