The European Commission asked the Polish government to undo the changes it made to legislation which, in the Commission’s opinion, weakened independent courts in Poland. The Venice Commission published critical opinions on these changes, but the Polish government did not make any major changes to alleviate the Commission’s concerns. Then the European Commission asked the other 27 EU member states if they agreed about whether there is “a risk of a clear breach by a member state of the values of Article 2” (in this case: the rule of law) on the basis of Article 7 of the Treaty.
The governments of the 27 member states (with the exception of Poland) must decide whether they agree with the Commission’s assessment. The Council has not yet set a date for that decision.
While we focus on the more political process that involves the member states, there are legal processes that impact this question as well. In December 2017 the Commission submitted a case to the European Court of Justice (ECJ), arguing that the Polish law on ordinary courts infringes on EU law. The ECJ decided that an Irish Court must not extradite any person to Poland if the Irish Court has serious concerns about the independence of Polish courts and if this could affect the rights of the person concerned. After Poland’s Supreme Court asked the ECJ to determine whether recent legal changes related to the Supreme Court were in line with EU law, the ECJ decided on 19 October decided on interim measures, meaning that the Polish government should not apply provisions on retiring judges, until the Court has passed a final judgement on these issues. (expected by the end of 2018). The Polish government has announced to respect the ECJ's decisions, but assumes legal changes to the respective legislation are necessary to implement them. Meanwhile, the The European Network of the Councils for the Judiciary, a professional network, suspended Poland’s Judicial Council due to concerns that it is not sufficiently independent anymore.
Before reviewing the points of contention, it should be pointed out that ever since the Polish government was elected it adopted a flood of new laws on the judiciary. In two years the Polish government adopted 13 such laws that changed the entire judicial system. Sometimes the government’s changes to these laws addressed a concern by the European Commission while simultaneously creating new concerns. Many legislative changes were made quickly and without transparency. The Polish legal community strongly opposed many of these changes. This overview will not provide all the details, but it provides links for more information.
These changes have been highly controversial in Poland. Even though the public demands reforms, they don’t support laws introduced by PiS. Many demonstrations were held against them. Judges were vilified in the media. Several judges lost their positions. This is about the law, but it is also about politics.
It’s about Institutions, but it is also about People
The European Commission’s concerns are about changes to the structure of the judiciary in Poland and its independent status, in part because they entail a massive re-staffing of the courts, especially at the higher level. By lowering the retirement age and changing the rules by which the Minister of Justice may appoint the courts' presidents, the government has appointed chosen persons into many judicial positions.
Beyond the structural issues, this systematic re-staffing is a concern by itself. It is also not consistent with the three aims of the government’s White Paper (page 22), which does not indicate that the government seeks to exchange many judges.Indeed the changed Constitutional Tribunal is deciding cases at a much slower rate now, increasing the length of proceedings.
|Government position||What do critics say?|
|Low Trust in the Judiciary||The government’s White Paper suggests that Poles do not trust judges.||
The statistics cited by the White Paper refer to the government’s time in power, suggesting that its actions are the problem rather than the solution.
The White Paper’s first sentences state: “Public trust in the Polish system of justice is at a very low level. According to a 2017 World Justice Project survey (conducted before the reforms were introduced), it was markedly lower than in the majority of developed countries, (…)” We contacted the World Justice Project who told us that the household surveys were held from 17 June 2016 to 3 July 2016. At this point the government was in office already for six months and the controversy about the Constitutional Tribunal was widely discussed. The additional ‘qualified respondents surveys’ that also inform the index were conducted even later (May 2017 to October 2017). The official White Paper starts with a false statement.
|The Number of Judges in Poland||The government’s White Paper suggests that Poland has a very high number of judges proportional to the population and compared with other EU partners (no source provided).||Poland’s numbers are comparable to other states in Central Europe and Germany (Western Europe has more lay judges), see here (page 18). The reforms have not reduced the number of judges, but have changed judges entirely.|
|Length of Proceedings||The White Paper states that the Polish judiciary takes too long to resolve cases.||The statistics in the White Paper (page 11) show that length of proceedings in Poland rank among the lower average of EU countries. The current re-staffing of courts is likely to increase the length of proceedings.|
|The Presence of Communist Judges||The government claims that there are still many judges which were appointed in the Communist era, but provides no statistical data (How many? Which courts? Their record?).||It is believed that the number is low, given that the Communist era ended almost 30 years ago. At the moment the Law entered into force, seven out of 80 Supreme Court judges had entered the judiciary during the communist era. There were no such judges in the Constitutional Court. The usual avenue for dealing with the past would be criminal proceedings or lustration of specific individuals.|
|Imbalance of Power||The White Paper suggests that judges are too powerful and independent and therefore unable to govern themselves. The White Paper states that during a three-year period, 50 cases of judicial misconduct were closed without penalty (for reasons like time limitations in the criminal code).||The number of cases mentioned (some 16 cases per year for 10,000 judges) seems low. If time limitations are considered an impediment, they could be amended for future cases. Giving the executive and parliament strong powers over the judiciary creates an imbalance of power. The White Paper points out that many Poles think that judges are not sufficiently independent. Significantly increasing executive influence seems to be the wrong answer to that problem.|
“(…) the Act and the Draft Acts, especially taken together and seen in the context of the 2016 Act on the Public Prosecutor’s Office, enable the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, and thereby pose a grave threat to the judicial independence as a key element of the rule of law.”