In recent days, Poland’s political authorities have rushed to approve new legislation in the Sejm, the Polish parliament. The immediate goal of this draft, which suddenly appeared on the Sejm’s website overnight on 12-13 December, could not be more clear: to definitively prohibit Polish judges from assessing the legality of the National Council of Judiciary – suspended by the European Network of Councils for Judiciary for not complying with the statutory rule that a member should be independent from the Executive - and the Disciplinary Chamber of the Supreme Court.
After the lead indicated by the European Court of Justice (ECJ) in its recent ruling of 19 November, which stated that national judges should ascertain whether the new Disciplinary Chamber of the Polish Supreme Court is independent in order to determine whether such cases must be examined by another court, the Polish government acted quickly to obstruct the concrete implementation of this decision.
As Diego Garcia-Sayán, UN Special Rapporteur on the Independence of Judges and Lawyers, noted publicly after his official visit to Poland in 2017, the “independence of justice is under threat.” After two years, unfortunately this continues to be the case.
Therefore, the new proposed bill tries to put a definitive end to the activities of an abundant number of Polish judges to uphold the rule of law. The attack against judicial independence, then, takes a further step forward.
The new regulation imposes severe sanctions on judges who dare to defend judicial independence. Among the disciplinary offenses the document lists, for example, is the refusal to use a legal provision that has not been deemed unconstitutional by the Constitutional Tribunal, the questioning of the status of judges or any sort of “political engagement.” Under the proposed legislation, there will be disciplinary proceedings, and subsequent sanctions on the current decisions, to verify the status of judges appointed by the new National Council of Judiciary following the orientation defined by the ECJ’s judgement.
In a deviant manner, the text also prohibits the inquiry into the status of courts and tribunals, stating that Supreme Court has no authority to assess the status of judges.
But yet another appalling development in the so-called judicial “reforms” envisaged by the political authorities is in the pipeline. It relates to the fundamental values of freedom of expression and association; rights that everybody, including judges, have according to international law.
The draft law provides a strict ban on adopting resolutions by the general assemblies of judges that would refer to political issues, especially expressing “hostility” towards other powers of Poland’s government and its constitutional organs, or express criticism of the fundamental elements of the political system of the country.
Furthermore, the text also prescribes limitations on the freedom of association of judges. A judge that belongs to a judicial association will have to present a declaration on their participation, indicating the term of the membership and their role in the association, along with a general obligation to present a list of his/her social media accounts.
In his official reports and statements, the UN Special Rapporteur has highlighted that judges are allowed to make comments in defence of fundamental human rights and the rule of law, or to participate in activities or debates concerning national judicial policy or the administration of justice in the country. They should definitely play an active role in any discussion concerning the development of new legislation concerning their status and, more generally, the functioning of the judicial system.
On other hand, the Basic Principles on the Independence of the Judiciary of United Nations determined that “judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.”
In Poland, we are witnessing a very obvious expedient to punish judges for the opinions expressed or the actions taken by their associations in the exercise of his or her profession and to protect their independence. The severity of the sanctions aims to create a “chilling effect” on all members of the judiciary, who are discouraged from expressing critical views out of fear of being subject to punitive measures.
This state of affairs is in complete opposition with the rule of law and defies basic norms imposed namely by universal standards and by the EU; that must be publicly stated with serene resilience.
In a landmark decision in February 2018, following the judgment by the Associação Sindical dos Juízes Portugueses, the European Court of Justice stated that member states must ensure that courts, in the fields covered by EU law, meet the requirements of effective judicial independence. National judges should be able to decide on using unreservedly, for instance, preliminary requests to the ECJ, without fear or constraints.
To interpret the concept of independence, the European Court held that an independent court is one that exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint and without taking orders from anyone, enjoying protection against any external interventions and pressures. In a concrete manner, the ECJ clarified in a recent case on 4 November that Poland has failed to fulfil its obligations under EU law by conferring on the Minister for Justice the power to extend the period of active service of judges in the ordinary courts.
Compelling judicial decisions through disciplinary procedures, hierarchical instructions or (in)formal pressures emanating from political appointed bodies, obedient to the incumbent ruling government, are practices condemned by the ECJ and constitute an undisputed violation of the founding Treaties of European Union.
Having in mind the extreme situation now described, and the ongoing dismantling of the rule of law and judicial independence in Poland, international institutions - in particular the European Commission - must take immediate and effective steps to defend universal fundamental values. This is a crucial battle for the future of Europe.
The co-signers of this opinion article want to be absolutely clear: judicial “reform” in Poland runs contrary to judicial independence. It should be stopped by the Polish authorities in the interest of their fellow citizens and in obedience of democratic rules. And make no mistake: we are running out of time.
- Diego Garcia-Sayán is Special Rapporteur of the United Nations on the Independence of Judges and Lawyers. José Igreja Matos is President of the European Association of Judges.
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