"The end of the independent judiciary in Poland"





The law on the National Council of the Judiciary passed by the Polish Parliament and drafted by the ruling Law and Justice party, the amended law on the Polish judicial system and the law on the Supreme Court that is currently awaiting amendments have been met with criticism of the judiciary and legal communities and commented by the European institutions as well. "This legislation (…) may undermine the separation of powers in Poland" – the European Parliament President, Antonio Tajani, wrote to the Polish President, Andrzej Duda. Frans Timmermans, on the other hand, threatened to trigger Article 7 of the Treaty on European Union on Poland.

The Polish parliament (the Sejm) passed two laws introducing material changes to the Polish judiciary. Following a heated parliamentary session held until the late hours into the night from Tuesday to Wednesday, 19 July, the bill on the Supreme Court was returned to the parliamentary commission. The opposition tabled as many as 1,300 amendments. The other laws are only awaiting the President’s signature. The head of the state did announce that he will veto them unless his remarks thereto have been taken into account but even the presidential bill is unconstitutional, as assessed by the Polish Judges Association, "Iustitia".



On Tuesday, 18 July, the President advised that he would veto the laws and that he has his own proposal. However, even these draft laws are not compliant with the international law, the critics say.

The Laws "will put courts under political control"

The Presidential proposal concerning amendments to the law on the National Council of the Judiciary is unconstitutional and incompliant with the international law – as presented in the official stance of the Association published overnight from 18 to 19 July.

"We hereby call on the President to invite all the interested communities to talk and act jointly on the draft of developments in the Polish judiciary that are both realistic and awaited by the Polish citizens." – the "Iustitia" Association wrote.



On Tuesday afternoon, President Andrzej Duda announced that he would veto the new Law on the Supreme Court, even once it is passed by the Sejm, unless the presidential bill on the Law on the National Council of the Judiciary has been passed first. The bill put forward by the President assumes that the Sejm would appoint judges to the National Council of the Judiciary with the three-fifths majority.



Under the amendment to the National Council of the Judiciary passed last week, the mandates of the 15 judges sitting on the Council would be prematurely terminated, for example. Judges replacing them would be appointed by the Sejm – at present they are appointed by the judiciary community. On the other hand, the amendment to the judiciary system that has already been passed, also changes the principles of appointment and dismissal of presidents of the courts by extending the powers of the Minister of Justice. Both amendments have been tabled with the President and are currently awaiting his decision.



"Judging by what the President has said, it seems that he would be willing to consent to move all the Supreme Court judges and the Chief Justice away from adjudication but the three-fifths majority of the MPs’ voices on the members of the National Council of the Judiciary would still be a political majority", the "Iustitia" Association assessed.



"The final result will be such that the three laws on the Polish judiciary that will put courts under political control, will become effective. None of the said laws ensures that the operations of the Polish courts would improve" – the "Iustitia" Association stressed.



On 18 July, the other Polish Judges Association, "Themis", also made a statement on the planned amendments to the Polish judiciary. The Association advises the Polish citizens "with great regret that the Laws passed by the Polish Parliament, i.e. the Law on common courts, the Law on the National Council of the Judiciary, and the Bill on the Supreme Court have brought an end to independent judiciary in Poland", as stated in the official stance of the Association.

"Breach of values means exclusion from the democratic countries"

The legal community opposes the system changes introduced without amendments to the constitution and calls on the authorities to respect and safeguard the constitutional order. The representatives of the legal community have passed such a resolution on account of the amendments to the Law on common courts, Law on the National Council of the Judiciary, and the Bill on the Supreme Court.

"Citizens await true reforms that would: make the complicated procedures less formal and simplify them, abolish judiciary obstacles, introduce legal solutions that would speed up the proceedings and make them more effective, including digitalisation of the courts and modernisation of the way they are manged. The laws passed and the bills that are elaborated on put the judicial system under political control and thus they do not serve its improvement" – the resolution of the Polish National Council of Attorneys at law reads.



In their resolution, the legal community remind others that independence of the justice is a common good of all Polish citizens – it is the guarantee of their basic rights and freedoms. "A breach of these values threatens the interest of the citizens and excludes our country from the democratic states" – the resolution reads.



The amendments to the Law on the National Council of the Judiciary, the Law on common courts, and the Bill on the Supreme Court proposed by the MPs representing the Law and Justice party "threaten proper operations of the courts in a democratic country. Regulations included in the above-listed legislations to a great extent breach the basic constitutional principles including the principle of the separation of powers, judicial independence and impartiality, and the mandate of the members of the National Council of the Judiciary and the Chief Justice, as set forth in the constitution. Therefore, by breaching the foundations on which a democratic country is based, they are unconstitutional" – the Polish National Council of Attorneys at law wrote.



The Law on the National Council of the Judiciary also shows that the measures taken by the Sejm and concerning the Polish judiciary "are intended to diminish the powers of the judiciary while concurrently building a homogenous state authority".

Timmermans’ criticism and Tajani’s letter

In his letter to President Andrzej Duda of 18 July, the President of the European Council, Antonio Tajano, called on the Polish President, as supreme guarantor of the Polish Constitution, to consider the matter of laws on the National Judiciary Council, common courts and the Supreme Court, and to take into account the concerns of the European Parliament about the independence and impartiality of the Polish judiciary.

"This legislation has created great concern in the European Parliament as it could be against fundamental principles of the EU Treaties, weaken the independence and impartiality of the Polish judiciary, and undermine the separation of powers in Poland", the letter reads.



"Furthermore (…) a new draft law was tabled in the Sejm which would terminate the mandate of sitting judges on the Supreme Court and allow the Minister of Justice to decide on their replacement. I am informed that the draft law on the Supreme Court is to be discussed and potentially even adopted, in the session of 18-20 July. In view of the urgency of the situation, at the request of a wide majority of the Political Groups’ leaders of the European Parliament, I have to send you a clear signal of preoccupation. Having regard to your role as supreme guarantor of the Polish Constitution, I respectfully call on you to further consider the matter and to take into account these concerns", the President of the European Parliament stressed in his letter.



On Monday, 17 July, the five Political Groups’ leaders of the European Parliament gathering the vast majority of the MEPs called on the European Commission to act on this matter and clearly indicate what the consequences of the adoption of the new legislation on the Polish judiciary would be. The European Parliament also wants the European Commission to appeal to the Venice Commission to urgently analyse the regulations.



On Wednesday, 19 July, the European Commission Vice-President, Frans Timmermans, assessed the situation in Poland.



The measures taken to reform the Polish judiciary "concern every Polish citizen, anybody doing business in and with Poland, or even anybody visiting the country". "What is happening in Poland affects the European Union as a whole, every member state, every citizen of the Union" – he said.



Timmermans said that the European Commission is close to triggering Article 7 of the Treaty on European Union on Poland. This is the so-called "nuclear option" that might lead to sanctions being imposed on the country.



Timmermans said that the amendments to the Laws on the National Council of the Judiciary and common courts passed by the Sejm together with the Bill on the Supreme Court tabled on Wednesday with the parliamentary commission "completely change the Polish judiciary".



He added that each of the laws "individually erode the independence of the Polish judiciary" and "collectively, they would abolish any remaining judicial independence".



The European Commission Vice-President is of the opinion that the "recent measures taken by the Polish authorities in relation to the judicial system and the judges greatly amplify the threat to the Rule of Law".



This is why the European Commission has to act "fast" and this also why "I am preparing to trigger a procedure on a violation of the EU law" that will be launched next week.



The matter (changes in the Polish judiciary – ed.) "concerns every Polish citizen or even anybody visiting the country. What is happening in Poland affects the European Union as a whole, every member state, every citizen of the Union" –Timmermans explained.



In his opinion, new laws by the Law and Justice party mean that "judges will serve at the pleasure of the political leaders and be dependent upon them".

Źródło: tvn24.pl/tłumaczenie Intertext.com.pl