In Poland, on April 2, a controversial law on the appointment of judges will come into force. The Council of Europe on March 29 issued a report in which the Polish judicial reform is severely criticized. The Group of Council of Europe against Corruption (GRECO) – the special committee of the Council of Europe – in its 15-page document concluded that the laws on the reorganization of the Supreme Court and the National Council of Justice “seriously violate” the anti-corruption norms in Poland.
These laws provide an opportunity to exert direct influence of the executive and legislative authorities on the appointment and dismissal of judges in all Polish courts. The organization called on Poland to change the laws so that at least half of all members of the National Council of Justice appointing judges could choose the judicial community itself, and not the parliament.
The report of the Council of Europe’s anti-corruption committee is criticized as the premature retirement of members of the Supreme Court of Poland, allowing the authorities to get rid of obstinate judges, and the possibility to extend the tenure of judges in office, which the president receives. The Minister of Justice, who is also the Prosecutor General, will have too much influence under the new laws, experts criticize. In their view, the independence of the judiciary as a whole is threatened.
The Council of Europe last December initiated an accelerated verification procedure for Poland, after the country’s government ignored criticism and recommendations from both the CoE and a number of other international organizations. This is the first such case in the history of the Council of Europe, founded in 1949. The organization, uniting 47 states, one of its main tasks sees respect for human rights and the principles of the rule of law. The Council of Europe, which is headquartered in Strasbourg, is not an EU structure.
Since 2015, the national-conservative party “Law and Justice” ruling in Poland is reconstructing the justice system. She explains her actions by appointing a liberal government that was ruling before that, or by the fact that judges have held their posts since the time of the communist regime.
The Venice Commission of the Council of Europe, dealing with issues of constitutional law, negatively assessed the judicial reform in Poland, calling it a threat to the rule of law and violation of the principle of separation of powers. The Government of Poland ignored this report, although it itself instructed it to prepare. In turn, the European Union also repeatedly called on Warsaw to change the disputed laws and to engage in a dialogue with Brussels on legal issues.
The first signs of readiness for dialogue in Warsaw appeared only after in December last year, Vice-President of the European Commission France Timmermans opened a penalty procedure against Poland under Article 7 of the EU treaty. After the beginning of the procedure, which provides for various sanctions, up to the deprivation of the violating country’s right to vote, the new Polish Prime Minister Mateusz Moravetski twice visited Brussels and discussed the Polish reform with the leadership of the European Commission. Although he himself showed impetuousness, the Polish ambassador to the EU said that Warsaw intends to submit amendments to the laws.
Last week, the European Commission confirmed receipt of the letter and is studying it, the EC representative said. Until mid-April, Brussels will announce whether Poland’s proposals are sufficient to prevent a “systematic threat to the rule of law”. After this, the EU Council of Ministers will decide on the continuation or termination of the penalty procedure in accordance with the 7th article of the EU treaty. To make a decision, it is necessary that it is approved by four fifths of the EU countries.
Critical of the Polish judicial reform were not only the Council of Europe and the European Union, but also the United Nations, the Organization for Security and Cooperation in Europe (OSCE), and the European association of judges. The European Commission threatened in the future to provide structural assistance to the countries of the community only if they observe the principles of the rule of law. However, to implement this idea, all EU countries, including Poland, should support it in the negotiations on the formation of a new EU budget.
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