It should become clear /.../ that the continuing, systemic and vicious attacks on Polish courts and their judges are bound to produce consequences beyond Polish borders and constitute a clear and present danger to the EU legal system as a whole. This is no time for further dialogue or half measures.
ADVERTISEMENTBy Laurent Pech and Patryk Wachowiec
Background
Last December and for the very first time, the European Commission activated a provision of the European Treaties (Article 7 TEU) in relation to the rule of law situation in Poland. According to the Commission – a diagnosis we fully agree with – there was and still is a clear risk of a serious breach of the rule of law by Polish authorities.
The activation of the “Article 7 procedure” – also recently activated against Hungarian authorities by the European Parliament – has been a long time in the coming. Indeed, it was preceded by the activation of the so-called “pre-Article 7 procedure” in January 2016 as soon as the first evidence of a potential systemic threat to the rule of law emerged. This prompt action was however followed by months and months of procrastination notwithstanding the worsening situation in Poland. To give a concrete example, one may mention the Polish President’s decision to appoint an “acting President” of the Constitutional Tribunal in obvious breach of the Polish Constitution. 48 hours later, this acting President became the President of the Tribunal on the basis of a process which the Commission described “as fundamentally flawed as regards the rule of law”.
Main steps since the activation of Article 7(1) mechanism
Faced with repeated instances of constitutional vandalism, the Commission finally accepted that it had no choice but to activate a mechanism which requires the referral of this matter to the Council of the EU. This was done, as noted above, on 20 December 2017. Initially anxious to find an informal way out of the conflict, the Council organised a total of four informal debates. This additional round of dialogue having gone (entirely predictably) nowhere, the Council finally accepted to fulfil its duties and organised the first formal hearing of Poland under Article 7(1) TEU. This formal hearing took place on 26 June 2018, at the end of which the following conclusion was offered:
The hearing offered a possibility for ministers to have an in-depth exchange with Poland on the concerns identified in the Commission's reasoned proposal.
As one astute observer put it, when it comes to the Council’s discussions on rule of law backsliding in Poland, “don’t bring popcorn. Bring a sleeping bag”. More problematically, the first hearing proved to be another foreseeable instance of fruitless dialogue. And while more time is being wasted, the rule of law situation has continued to deteriorate with Polish authorities rushing to complete their subjugation of the Polish judiciary and change all the facts on the ground before any eventual significant adverse ruling from the European Court of Justice.
Article 7(1) hearings in practice
A second Article 7(1) hearing is now scheduled to take place on 18 September. Its modalities are similar to the first hearing. In a nutshell, each national delegation is entitled to ask Polish representatives to answer up to two questions with each question not to exceed two minutes. Follow-up questions are allowed with the same two-minute limit applicable. Despite the Polish government’s previous objections, the European Commission will continue to attend the Council’s hearing so to as to provide an update on the multiple and continuing violations of the rule of law in Poland – or “key areas of concern” to use the EU’s diplomatic language – and reply to the (alternative) facts which Poland will put forward (a summary of the questions and answers from the first hearing as well as a rather obviously misleading PowerPoint presentation are available here).
It is important to note that the Council is yet to adopt substantive conclusions on the issues which keep being discussed. We cannot also exclude a third and possibly more hearings if only to further delay the organisation of a vote which most governments would rather avoid if at all possible. It may worth pointing out however that no sanctions may be adopted on the basis of Article 7(1) TEU. At best, the Council “may determine that there is a clear risk of a serious breach” of the basic constitutional values on which the EU is based and which each EU candidate country must satisfy in order to join it.
Readers will find below an updated but brief “state of play” in relation to each of the seven topics agreed by the Council for the hearing as well as two questions per topic we would hope to see national governments ask. Beyond the questions to be asked, national governments must finally accept to confront an unpleasant reality: they are not dealing with a government acting in good faith but with one which has been deliberately and repeatedly violating its own constitutional order and proved time and time again an obvious willingness to mislead EU institutions and fellow Member States. Further dialogue and hearings will do nothing to solve the type of constitutional hooliganism (to borrow the expression coined by Ben Stanley) we are witnessing. It will only enable Polish authorities to further consolidate their capture of Poland’s judicial branch in obvious breach of both the Polish Constitution and the EU Treaties.
Hearing topics
1. Supreme Court
The European Commission had repeatedly asked that Polish authorities do not retroactively apply a lower retirement age to the sitting Supreme Court judges, effectively dismissing them. They have also been asked to remove the discretionary, not to say totally arbitrary, power of the Polish President to prolong the mandate of the Supreme Court judges who have been retroactively retired, in effect, dismissed. The Commission also requested that the Polish government complied with its own Constitution rather than offering a patently selective reading of it, and that it did not attempt to unconstitutionally terminate the mandate of the First President of the Supreme Court, whose 6-year term of office is explicitly secured in the Constitution.
These recommendations have been repeatedly ignored with the situation having gone from bad to worse since Article 7 was activated. For instance, the new law on the Supreme Court, which entered into force in April 2018, has been amended several times in order to satisfy the ruling majority’s quite obvious goal to transform Poland’s Supreme Court into a mere arm of the ruling party. Some “concessions” were put forward but these can hardly survive a 5-minute assessment. To give a single example, the involvement of the National Council for the Judiciary (NCJ or KRS in Polish) before the President decides on the prolongation of individual judicial mandates has been presented as an improvement. Let us just quote here the analysis of the Board of the European Network of Councils for the Judiciary (ENCJ) regarding Poland’s newly and arguably unconstitutionally established NCJ:
The Board considers that the KRS is no longer the guardian of the independence of the judiciary in Poland … The Board considers that the KRS does not comply with the statutory rule of the ENCJ that a member should be independent from the executive … In the circumstances, the Board proposes to the General Assembly, convening in Bucharest on the 17th September 2018, that the membership of the KRS be suspended.
To present the involvement of Poland’s NCJ as a “concession” may therefore be seen as a rather extreme example of chutzpah. As regards the ongoing court-packing process, which is being rushed so as to present the European Court of Justice with a fait accompli, it further betrays an obvious disregard of the most elementary understanding of the rule of law. To give only one example, it was striking but not surprising to see the Polish president appointing new judges (following a shambolic and noticeably biased process) without having first obtained the Prime Minister’s countersignature as required by the Polish Constitution.
In light of the above, if we had the possibility to ask one question, we would like Polish authorities to answer this one:
Question: With respect to the forced retirement/dismissal of Supreme Court judges, the European Commission is of the view that one of the so-called concessions offered by the Polish government (i.e. the consultation of the NCJ) does not constitute an effective safeguard and that the composition of the NCJ itself violates European standards on judicial independence. What is the Polish government’s answer to this diagnosis, which has since been confirmed by the Board of the ENCJ and on the basis of which the Board has proposed to the General Assembly of the ENCJ that the suspension of Poland’s NCJ be suspended?
2. National Council for the Judiciary (NCJ)
Last March, the four-year mandates of the sitting 15 new judges-members of the NCJ, guaranteed by the Polish Constitution, were prematurely terminated in open defiance of the European Commission’s previous recommendation. Polish authorities similarly ignored the recommendation that the new appointment regime ought to be removed in order to ensure the election of the judges-members by their peers rather than the lower house of the Polish Parliament.
This change obviously enabled the ruling party to handpick candidates and de facto capture the “new” NCJ. Due to the boycott by Polish judges of the new and rather obviously unconstitutional procedure created by the law on the NCJ, only 18 candidates submitted their applications to the Parliament out of approximately the 11,000 judges working in Poland. It furthermore still remains unclear who were the “sponsors” of the candidates who were “elected”. Candidates were required to collect at least 25 signatures of support from other judges (or 2,000 from other citizens) and in the absence of transparency on this front, one cannot exclude that the candidates appointed to the NCJ were entirely nominated by judges seconded and subordinated to the Ministry of Justice. Despite a court order, the Speaker of the Polish Parliament is yet to make this information publicly.
Question: According to the Board of the ENCJ, the Polish “reform” regarding the NCJ is not only “a departure from the ENCJ standard that judges in a council should be elected by their peers” but has also resulted in the NCJ being “no longer independent from the executive”. Why should we not agree with this diagnosis?
ADVERTISEMENT3. Ordinary Court Judges
The Polish government has presented the alignment of the retirement age of female and male ordinary court judges (65 years) and the transfer of the power to prolong the mandate of ordinary court judges from the MoJ to the NCJ as evidence of their willingness to find a compromise with the Commission on this front. These are however only cosmetic, rather than substantive concessions. To begin with, the NJC has become a de facto instrument of the executive branch and it is therefore difficult to see how such a transfer of power from the MoJ to the NCJ can be seriously considered a “reform” let alone a “concession”. Decisions on whether the mandates of ordinary court judges are prolonged cannot also be subject to judicial review. Finally, a new law passed in July has since empowered the MoJ to essentially do as it pleases when it comes to the internal structure of ordinary courts, including the transfer of judges between courts regardless of their consent, with the power to assess appeals against judicial transfers to the NCJ…
Question: How can one view the involvement of the NCJ in light of its obvious lack of independence, as recently observed by the ECNJ, as anything but a cosmetic concession when it comes to the power to prolong the mandates of ordinary court judges, as well as an additional possible violation of the principle of sincere cooperation, set out in the first paragraph of Article 4(3) TEU?
4. Disciplinary regime
The new disciplinary regime established by the law on the Supreme Court has been identified by the Commission as one of the “reforms” which structurally undermine the independence of Supreme Court judges. The removal of procedural guarantees in disciplinary proceedings conducted against ordinary judges and the influence of the executive branch over disciplinary officers have been additional sources of strong concern. Since the activation of Article 7, the new NCJ has presided over the appointment of 12 out of 16 judges to the new disciplinary chamber. The majority of them, until their appointment by the President, were prosecutors directly subordinated to the MoJ. Having been established as an autonomous body, the Disciplinary Chamber must be considered a “court within the Supreme Court” as it has been allocated a separate budget, administration and legal services.
Question: In light of recent reporting that that a number of Polish judges are being subject to disciplinary proceedings, including at least one who recently submitted a reference for a preliminary ruling to the ECJ asking the ECJ to assess the compatibility with EU law of the new disciplinary regime it is now being subject to, would the Polish government please explain what guarantees if any are in place to prevent the arbitrary use of disciplinary proceedings against judges who happen to be critical of so-called “judicial reforms”, which have been repeatedly and continue to be criticised by a wide range of actors at European and international level for their obvious shortcomings and arbitrary elements, and/or happen to have submitted references for a preliminary ruling to the ECJ?
5. Extraordinary appeal procedure
At the time of the activation of Article 7, the Commission made the recommendation that the law on the Supreme Court is amended so as to remove the extraordinary appeal procedure, which the Venice Commission itself described in an opinion adopted in December 2017 as having “a lot of similarities” with the “system of extraordinary appeals against final judgments” which “existed in many former communist countries”. It is indeed a properly extraordinary procedure to the extent that it makes it “possible to reopen any case decided in the country in the past 20 years, on virtually any ground”.
ADVERTISEMENTA number of recent amendments have been adopted by Polish authorities since then. For instance, rulings will no longer be repealed in a situation where such a repeal could undermine the “international commitments of Poland”. However, since it is not made clear how “international commitments” must be understood, this procedure could easily be abused and undermine the effectiveness of EU law in Poland by enabling the Prosecutor General to pick and choose final judgments applying EU law which a “friendly” Supreme Court could easily found incompatible with the ruling party’s understanding of “social justice”.
The bottom line however is that the extraordinary appeal procedure has not been removed contrary to what the Commission has repeatedly recommended and means that past rulings may be challenged for instance on the basis of Prosecutor General’s understanding of “social justice”, that is, in practice, the ruling party’s understanding of what the “natural legal order” requires...
Question: While we agree with the Commission that the extraordinary appeal procedure must be removed in its entirety, could the Polish government explain why is this procedure concerned with rulings that became final since 17 October 1997, i.e. the day of entry into force of the Polish Constitution? Should one understand the extraordinary appeal procedure as a tool to undermine the rulings based on the Polish Constitution which Polish authorities have not be able to revise?
6. Court Presidents
On the basis of another “reform”, the MoJ dismissed more than 140 presidents and vice-presidents of ordinary courts between August 2017 and February 2018. We can here properly talk of a purge considering the volume, the total absence of any criteria to justify the dismissals, the non-availability of judicial review and the replacement of the purged judges with more “friendly” ones, including judges who belong to the captured executive-dependent NCJ (as noted by the ENCJ), and former judges delegated to the Ministry of Justice. Quite conveniently, the new court presidents have the power to transfer judges to other chambers (for instance from a civil law chamber to a criminal law one), a power which may be easily used for instance to threaten or punish those who may not be sufficiently supportive of the government’s “reforms” or object to the Polish Constitution being violated repeatedly and in plain sight…
Question: What has the Polish government done (if anything) to provide the judges who have been so obviously arbitrarily dismissed, in plain breach of the principle of judicial independence, with an effective remedy?
ADVERTISEMENT7. Constitutional Tribunal
In addition to repeatedly denouncing inter alia the unlawful appointment of the President of the Polish Constitutional Tribunal, the admission of three unlawfully nominated judges (as recently ruled by the Regional Administrative Court in Warsaw, the current “Vice-President” of the Tribunal cannot be considered a proper judge since he took the position already occupied by the judge who was not sworn by the President), and the non-admission of three lawfully nominated judges, the Commission has repeatedly requested the publication and full implementation of several judgments adopted by the pre-captured Constitutional Court.
After attempting to argue that there is no need to do so as the judgments mysteriously disappeared from the Constitutional Tribunal’s database once the Tribunal was under “new ownership”, Polish authorities have sought to argue that their publication with the subtle disclaimer “delivered in breach of law” should be considered enough of a concession to consider the matter closed. As regards the other unlawful aspects which have been denounced by the Commission and a plethora of international bodies, there has been no changes whatsoever so much so that the Commission continues (rightly) to consider that there is no longer any effective control of the constitutionality of Polish legislation. This is obviously quite convenient as it enables one to violate one’s constitution without consequences in a situation where you lack the required majority to revise it.
Question: Seriously?
* * *
To conclude, the rule of law crisis in Poland is worse than ever, with Polish authorities now openly refusing to comply with the suspension of the Polish law forcing the early retirement of Supreme Court judges ordered by the Supreme Court while the case is pending before the European Court of Justice.
ADVERTISEMENTWhile the seven topics of discussion selected by the Council and discussed above are entirely relevant and crucial, one may find it difficult to understand why the Council failed to address another key topic which the Commission has repeatedly raised and mentioned in its Article 7 reasoned proposal, that is, the need for Polish authorities to stop attacking Polish courts, judges, individually or collectively, or the judiciary as a whole.
To give a “taste” of what Polish judges are subject to, some concrete examples are required:
The so-called “questions” referred to the CJEU are, in my opinion, scandalous – especially when it comes to criminal cases. … If we look at some of the judges [who have submitted requests for a preliminary ruling], we come to the conclusion that their activity is purely political or related to journalism. The Prosecution Office is investigating this case. – the State Prosecutor, Bogdan Świeczkowski (TV Republika)
This decision, regarding the alleged “suspension” of certain provision of the Act on the Supreme Court should be considered invalid by law – President of the Republic of Poland, Andrzej Duda (Dziennik Gazeta Prawna)
When issuing the decision contacting a request for preliminary ruling to the Court of Justice of the EU and suspending the application of certain provision of the Act on the Supreme Court, the Supreme Court committed a number of breaches of law. It cannot be respected by the state authorities – Robert Hernand, deputy Prosecutor General
ADVERTISEMENTThe Supreme Court has placed itself above the Constitution and above the Polish legal order – Marcin Warchoł, deputy Minister of Justice (TVN24)
Not satisfied with attacking the integrity of Polish judges, the same Marcin Warchoł previously questioned the professionalism and integrity of an Irish High Court judge in the context of an ongoing European Arrest Warrant case and while doing so, also violated the principle of the presumption of innocence. This led in turn the Irish High Court to find his reported statements “not merely inappropriate in the context of the Irish legal system” but also inappropriate in light of the well-established requirement under the European Convention on Human Rights that prosecutors, judges but also public officials must refrain from describing an accused person as guilty.
Looking beyond this case, it should become clear to all that the continuing, systemic and vicious attacks on Polish courts and their judges are bound to produce consequences beyond Polish borders and constitute a clear and present danger to the EU legal system as a whole. This is no time for further dialogue or half measures.
Laurent Pech is Professor of European Law, Middlesex University London
Patryk Wachowiec is Legal Analyst, Civil Development Forum (FOR Foundation), Poland
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