NGO Letter on the situation of the rule of law and human rights in Poland ahead of the EU General Affairs Council meeting on 8 December 2020

Open Letter
Guillaume Périgois

1 December 2020

Dear Minister,

As EU Ministers prepare to meet at the EU General Affairs Council on 8 December, we the undersigned representatives of Polish, European and international civil society organisations call upon Germany - as the country holding the EU Council’s Presidency - to maintain on the Council’s agenda a hearing under Article 7(1) of the Treaty on European Union (TEU) on the situation in Poland. The hearing will give the Council an opportunity to examine without further delay the issues raised by the European Commission in its December 2017 Reasoned Opinion [1] and other developments that have since occurred and which further threaten the rule of law and fundamental rights in Poland.

We also call on your government to ensure that the Council urgently addresses specific recommendations to the government of Poland to safeguard the principles enshrined in Article 2 TEU and, having heard the Polish government and based on the information provided by other national and international sources, to support the need to determine that there is a clear risk of a serious breach of the values referred to in Article 2 TEU in Poland.

We are deeply disappointed that the Council has not held any hearing on the rule of law in Poland since September 2018. However, since then, the Polish authorities have continued unabated to undermine the rule of law, particularly by dismantling the independence and effectiveness of the country’s judiciary and persecuting its members.

Judges have faced arbitrary disciplinary proceedings for criticizing problematic judicial reforms and referring cases for preliminary rulings to the Court of Justice of the European Union (CJEU). Legislation which entered into force in February 2020 [2] could allow the dismissal of judges who issue court rulings counter to the government’s policies, further undermining judicial independence and preventing Polish courts from directly applying certain provisions of EU law.

Poland has yet to fully comply with the June 2019 [3] and November 2019 [4] rulings by the CJEU regarding the laws on the Supreme Court and on ordinary courts, and with the interim measures issued by the Court in April 2020 [5] ordering Poland to suspend the powers of the Disciplinary Chamber of the Supreme Court with regard to disciplinary cases concerning judges, pending the related CJEU proceeding.

The rule of law crisis has further deepened with the 22 October Polish Constitutional Tribunal’s ruling restricting reproductive rights of women and girls by virtually eliminating access to legal abortion. The independence and legitimacy of Poland’s Constitutional Tribunal as an effective constitutional review of legislative acts have been severely undermined by reforms taken since 2015, raising questions regarding the independence and impartiality of its judgments.

This decision comes amidst ongoing government attacks on sexual and reproductive health and rights, the government’s decision to withdraw from the Istanbul Convention, public speech and the systematic introduction of policies that promote intolerance and discrimination against LGBTI+ people and undermine their rights, and the continued erosion of the independence of the judiciary and the fundamental rights of people in Poland.

The authorities have responded to a wave of protests across the country sparked by the 22 October decision with unlawful and excessive use of force, subjecting many peaceful protesters and journalists who were trying to document abuse to arbitrary arrests, investigations and prosecutions. These are often based on inappropriate or disproportionate charges, hampering their rights to freedom of peaceful assembly and expression and having a chilling effect on civil society in Poland.

These alarming developments necessitate an urgent and serious response from the Council. We call on your government and other EU governments to react swiftly and exercise the necessary scrutiny. Failure to do so will call into question the EU’s ability to effectively safeguard adherence to fundamental rule of law principles and core human rights values on which the Union is founded.

We call on your leadership to demonstrate that respect for human rights and the rule of law remains at the core of the European Union and that attacks against these principles will not go unaddressed. We urge your Presidency to move the Council to address Poland’s deteriorating rule of law situation and its impact on the human rights of its people, and to act firmly against the Polish authorities’ increasing contempt for the founding values of the EU, in cooperation with the other institutions and as requested by the European Parliament in its latest September 2020 resolution [6].

We stand ready to assist with any further information you may require in preparation of any further action on these issues.

Yours Sincerely,

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