defending rights and civil liberties

2018

24

OCT

Rule of Law Crisis and Mutual Trust - Recent Developments in Poland

Since 2015, Poland has been facing a constitutional crisis resulting in a systemic threat to the rule of law in Poland, a situation which has been repeatedly denounced by multiple national and international governmental and non-governmental bodies.

 

 

Since 2015, Poland has been facing a constitutional crisis resulting in a systemic threat to the rule of law in Poland, a situation which has been repeatedly denounced by multiple national and international governmental and non-governmental bodies. The situation is so unprecedented that the Commission activated Article 7(1) TEU last December in order, inter alia, to warn against the systemic undermining of the independence of judges and the associated dangers regarding the right to fair trial. To put in concisely, in the last 3 years, the Parliament has adopted almost 20 different pieces of hostile legislation which allowed the ruling majority to effectively capture and politicise the judiciary.

 

    • Supreme Court

 One of the most detrimental changes concerning the independence of the judiciary is related to Polish Supreme Court. Over the last year, the Parliament adopted three laws amending the Act on the Supreme Court. The changes included lowering judges’ retirement age, changing the structure of the Supreme Court and introducing new mechanism of the extraordinary appeal to challenge courts’ rulings which became final since 1997. Most importantly, however, the changes are supposed to lead to effective termination of the term of office of the First President of the Supreme Court and packing the Court with judges appointed by the new National Council of the Judiciary captured by the governing majority. A case is now pending before the ECJ regarding the Act on the Supreme Court. To pre-empt the ruling of the ECJ, as well as despite the interim measure granted by the domestic Supreme Administrative Court, the Polish President appointed 27 new judges of the Supreme Court, most of whom having strong political ties, after façade nomination proceedings.

 

The decision of the President raises numerous concerns when it comes to the legitimacy of the newly-appointed judges and may have detrimental consequences for protecting the right to fair trial in future. Therefore, it means that political authorities in Poland are now openly ignoring not only the ruling of the pending judgment of the ECJ regarding the Act on the Supreme Court (case Commission v. Poland, C-619/18), but also threatens not to comply with rulings of domestic supreme courts.

 

    • National Council of the Judiciary 

 

The role of the National Council of Judiciary, which has been presiding over the unconstitutional nominations of multiples judges, should also be highlighted. In 2017, the Parliament amended also the Act on the National Council of Judiciary. The Council, which is constitutionally required to safeguard the independence of courts and judges as well as to conduct nomination proceedings for judges, used to be composed of judges appointed by their peers and representatives of the Parliament and the President. After the changes, it is up to the Parliament to appoint judges to the Council. The process of appointing the new members of the Council was mostly disclosed and highly politicised, and it resulted in electing judges with strong ties to the Minister of Justice, who is at the same time the Prosecutor General. The Council in its current composition does not offer an effective mechanism to protect judges’ independence and safeguarding the separation of powers in the democratic state.

 

Recently, the National Council of Judiciary nominated judges for the vacant positions of judges in the Supreme Court. It is worth stressing that several of the candidates challenged the decision of the NCJ and brought their complaints to the administrative court which ordered the interim measures to withhold the process of appointing the new judges until the case is settled. Despite that, the President of Poland sworn in to the position of judges of the Supreme Courts the appointed candidates.

 

    • Ordinary courts

 The changes affected also the system of common courts. One of the examples of this trend is undermining the position of courts’ presidents. In consequences of the amendments to the Act on the common courts, the Minister of Justice (who also acts as the Prosecutor General) gained competences to discretionally appoint and dismiss the presidents of the courts. Between August 2017 and February 2018, the Minister of Justice replaced the presidents in almost 150 cases. In many cases, the new court’s presidents have been also closely connected to the Ministry of Justice via e.g. personal or working relations.

 

    • Harassment and intimidation

Furthermore, judges who speak up against violation of the rule of law or make decision unfavourable from the perspective of the governing majority may face disciplinary proceedings, among other things, because of issuing request for preliminary rulings to the Court of Justice of the EU. Only in recent month, the disciplinary proceedings were initiated in cases of four judges. The proceedings are pending and, given the recent developments, it can be stated that their main purpose will not only be punishing the judges, but also creating chilling effect among affecting the work of other judges in Poland. Furthermore, the recently published report of the Judges’ Association IUSTITIA shows that 15% of judges who participated in this survey have faced different forms of creating a political pressure on them.

 

Currently, in Poland there are no mechanisms effectively protecting judges from political pressure. Judges’ independence lay only with their professional skills, their moral integrity and beyond that their courage. For these reasons, we remain convinced that there is a systemic threat to the right to fair trial in Poland.

 



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