Ahead of tomorrow’s hearing of the government of Poland during the General Affairs Council, please find below a short summary of recent developments in Poland.
ON THE THREATS TO THE INDEPENDENCE OF THE SUPREME COURT
According to Arts. 37 and 111 of the 2017 amendments to the Law on the Supreme Court, the terms of 27 of 74 Supreme Court judges expired on 3 July 2018, forcing them into early retirement. This also concerned Supreme Court President Małgorzata Gersdorf, despite her constitutionally-set term running until 2020.
As a result, the Supreme Court referred five questions to the Court of Justice of the European Union (CJEU) on 2 August 2018, among which the compatibility with EU law of the 2017 amendments triggering the forced retirement of approximately 40% of Supreme Court judges. The referral made to the CJEU by the Supreme Court begged strong reactions from the Prosecutor General (who is also the Minister of Justice) Zbigniew Ziobro, who filed a motion to the now politically-controlled Constitutional Tribunal regarding the Supreme Court’s competence to make such referral. Bogdan Święczkowski, First Deputy Prosecutor General and right hand of Prosecutor General Zbigniew Ziobro also announced that by referring to the CJEU on the 2017 amendments regarding the retirement ages of judges, the Supreme Court judges had gravely infringed the law and the Prosecutor’s office "[would] take interest."
While the competence of the CJEU to issue a ruling on this subject is also called into question by Polish authorities, it is clear that the amendments are within the remit of the CJEU’s competence. The 2017 amendments, by forcing Supreme Court judges to retire, thereby cutting their constitutionally-set term short, indeed seriously undermine the principle of effective judicial protection, as well as the principle of judicial certainty, and therefore the rule of law, respectively protected under Art. 47 of the Charter of Fundamental Rights of the European Union (CFR), and Art. 2 of the Treaty on European Union (TEU). As such, the 2017 amendments to the Law on the Supreme Court touch and concern areas of EU law, which triggers the competence of the CJEU, as warranted under Art. 19(1) of the TEU. [1] However, Polish authorities such as Deputy Prime Minister Jaroslaw Gowin, have expressly said the Polish government "[would] probably have no choice but to ignore the ruling" were the CJEU to validate the Supreme Court judges’ position. [2]
While Supreme Court President Małgorzata Gersdorf was forced to retire on 3 July 2018 according to the 2017 amendments to the Law on the Supreme Court, she, along with several other Supreme Court judges, has kept on coming to work, and is still seen by lawyers and herself alike as the current Supreme Court President. As a result of her perseverence, the current government, through their supermajority in the Sejm, had another law passed on 20 July 2018, with the overt purpose of speeding up her forced and unconstitutional replacement by drastically lowering quorum needed to appoint a new Supreme Court President. [3]
The Supreme Court is currently in the midst of legal chaos because of the 2017 amendments, the 20 July 2018 law, and the Office of Polish President Andrzej Duda sending out retirement notices to several judges on 12 September, who, according to the Constitution, should legally still be active. [4] As a result, the Supreme Court’s work may be gravely impaired – either drastically slown down, or outright paralysed.
ON THE MINISTER OF JUSTICE’S EXTENDED POWERS USED TO TARGET DISSENTING VOICES AMONG THE JUDICIAL PROFESSION
The Minister of Justice, whose powers have recently been extended, has established, by ordinance of 10 September, a new specialised team "for the actions of the Minister of Justice in the disciplinary proceedings of judges and court assessors." [5] The team is headed by Vice Minister Łukasz Piebiak who himself has been found guilty, in 2015, of issuing belated justifications of judgments and conducting trainings for which he was paid, without informing the President of the court. Members of the team are mostly judges - but third parties can be invited to join if "their knowledge is considered of importance to the case." [6]
On the basis of amendments made to the Law on the Organisation of Ordinary Courts, Minister of Justice Zbigniew Ziobro has the right to submit a request to initiate disciplinary proceedings against a judge or a court assessor, as well as to appeal a case, even if it was discontinued by the disciplinary spokersperson. The Minister may indeed file effective objections to any case, which results in the obligation to initiate disciplinary proceedings and to take into account the Minister’s instructions regarding the outcome of such proceedings.
The disciplinary spokesperson has already begun initiating proceedings against judges who are known for defending the independence of the courts and the protection of the rule of law in Poland, notably Judge Bartłomiej Przymusiński of Iustitia and Igor Tuleya. The new National Council of the Judiciary (NCJ) has indeed asked Judge Przymusiński to formally explain his participation in the TVN 24 program on 20 August where he heavily criticized the new NCJ for being politically-appointed and opaque. [7] They have also asked Judge Igor Tuleya to explain his participation in the "Fact after Facts" program in TVN24 in July 2018 where he said he did not recognize the new NCJ, which according to him destroys the judiciary and is digging the grave of the independence of the courts. [8] Both Judge Tuley and Judge Przymusiński are to submit their explanations as part of the disciplinary investigation, which is likely to end with the instigation of disciplinary charges and proceedings against them.
A disciplinary investigation is also being initiated against Wojciech Sadrakuła, a prosecutor who took part in the 5th edition of the Constitutional Week Project in June 2018. The Constitutional Week project was created at the beginning of 2016 following the constitutional crisis in Poland, with the aim of educating children on the Constitution and its principles twice a year. Educators are lawyers, judges, members of civil society organizations, as well as prosecutors. As they are considered dissenting voices by the Office of the Ministry of Justice, the disciplinary spokesperson sent a letter informing Maria Echart-Dubois, who co-initiated the Constitutional Week Project as the President of the Zbigniew Hołda Society, that the disciplinary proceedings have been aimed at Prosecutor Sadrakula for his involvment with the project.
This mechanism is a clear illustration of the new powers conferred upon Minister of Justice Zbigniew Ziobro, and of the way they will be used to target dissenting voices among the judicial profession. The initiation of proceedings against judges known for defending the independence of courts is extremely alarming, especially as members of the ruling party barely attempt to hide the fact that the role of this special team is to help remove judges whose actions they do not agree with. [9] As a result, the NCJ’s membership of the European Network of Councils for the Judiciary was suspended, a decision taken on 17 September during the ENCJ’s general assembly in Bucharest. [10]
ON RESTRICTIONS TO THE FREEDOM OF ASSEMBLY
On 10 September, the office of the prosecutor of Warsaw decided to discontinue a case against men who beat, insulted, and spat on 14 women taking part in a counter-demonstration on 11 November 2017 for Poland’s 99th anniversary – the Independence March of Women. The women suffered spinal tear, head trauma, and heavy bleeding. According to the prosecutor’s office, their assault "was not intentional" [11] as they merely wanted "to show their dissatisfaction that the victims were on the route of their march" [12] – the counter-demonstration was rendered illegal by the amended Law on Assemblies introduced by PiS which prohibits the organization of counter-demonstrations within a 100-meter radius of the event. The prosecutor’s office also pointed out the attacks were "directed at less sensitive parts of the body," [13] which means "one cannot talk about beatings." [14] The prosecutor’s office reached that conclusion and discontinued the case without having questionned the perpetrators.
Violence also took place on 1 September in Warsaw during the commemoration of the beginning of the Second World War. At this occasion, President Duda delivered a speech on the Pilsudski Square in Warsaw, while protesters shouted "Constitution." The plenipotentiary of the Voivode of Lower Silesia was there and shouted "Shut up" at protesters, before walking up to a woman and slapping her in the face. She has since resigned.
These are only a few of the illustrations of the functioning of the prosecutor’s office and of the situation of dissenting voices under Minister of Justice Ziobro’s lead.
Finally, it must also be noted that President Duda has also recently made extremely worrying statements regarding Poland’s belonging to the European Union, which display an overt disregard for dialoguing with the European Union and a clear unwillingness to backtrack on all of the introduced, problematic reforms. [15]
Given these recent alarming developments, which does not show a willingness of the Polish government to engage in a constructive and open dialogue with the European Union, and to change its course of action, FIDH and its member organisation, the Polish Society of Antidiscrimination Law (PSAL) call on you, members of the General Affairs Council, to take the necessary action to ensure the clear risk of a serious breach of the rule of law and, more broadly, of the founding principles of the European Union, is addressed swiftly.