The Venice Commission, an advisory body of the Council of Europe, today issued an “urgent opinion” criticising a proposed new disciplinary regime in Poland that would introduce the possibility to fire judges who do not accept the validity of the government’s judicial reforms.
A few hours later, the European Parliament voted by a large majority to pass a resolution expressing concern at the situation regarding rule of law in Hungary and Poland, including the latest proposed disciplinary measures.
However, Polish president Andrzej Duda has said that the government must press on with its overhaul of the judiciary. Reports in Polish media indicate that he would not veto the new disciplinary system, regardless of any negative opinions from international institutions.
In its opinion, the Venice Commission found that the new measures would “diminish judicial independence and put Polish judges into the impossible situation of having to face disciplinary proceedings for decisions required by the European Court of Human Rights, the law of the European Union, and other international instruments”.
The Commission’s legal experts called on Poland’s parliament not to adopt the legislation, which has also been criticised by the European Commission, the UN commissioner for human rights and the OSCE.
The Venice Commission says a proposed new disciplinary regime for Polish judges would "diminish judicial independence and put judges in the impossible situation of facing disciplinary proceedings for decisions required by the ECHR, EU law and other international instruments" https://t.co/2i7DeGeRGN
— Notes from Poland ?? (@notesfrompoland) January 16, 2020
Its findings were informed by a visit to Warsaw last week at the request of Tomasz Grodzki, the opposition speaker of the Senate, the upper chamber of parliament. The Senate is now considering the relevant legislation, which was passed last month by the lower-house Sejm, where the ruling Law and Justice (PiS) party has a majority.
However, government ministers and other senior PiS figures refused to meet the delegation of judges from Bulgaria, Ireland, Sweden and Germany. They argued that the visit was “private” and “unofficial” because the Senate speaker had “no right to invite the Venice Commission according to Polish law”, in the words of Deputy Justice Minister Michał Wójcik.
The Venice Commission is composed of over 100 independent experts on constitutional and international law from 62 countries. It was set up in 1990, after the fall of Berlin Wall, to help countries in Central and Eastern Europe with constitutional changes. It’s opinions are not binding.
The Commission has previously issued negative assessments of PiS’s earlier judicial reforms, saying that they have created a system with “a lot of similarities to the old Soviet one” and which “endangers not only the rule of law but also the functioning of the democratic system”.
Yesterday, the OSCE’s office for Democratic Institutions and Human Rights also issued an “urgent interim opinion” on the new disciplinary regime for judges, which it found “violates international and European law” and is “inherently incompatible with judicial independence and the separation of powers”.
The new disciplinary measures were proposed in response to rulings from the Court of Justice of the European Union and Polish Supreme Court that threaten to undermine some of PiS’s previous judicial reforms.
Thousands of Poles protested in the streets against the introduction of the new legislation. A silent march took place in Warsaw on Saturday in opposition to the new disciplinary measures, with judges from around Europe joining their Polish counterparts in a display of solidarity.
Judges from around Europe have joined their Polish counterparts in Warsaw today for a protest march against the government's judicial reforms and in defence of independent courts #MarszTysiącaTóg https://t.co/3F007LiGv7
— Notes from Poland ?? (@notesfrompoland) January 11, 2020
But, according to news website Wirtualna Polska, President Duda is convinced that PiS, which has nominated him as its candidate in this year’s election, is right to pursue the controversial legislation.
The president claimed that the people he spoke to at public meetings wanted reform. “There is nothing that citizens demand more from the government than radical, decisive changes in the judiciary,” he said, adding that, “It is not only the PiS electorate that demands changes. The question of the courts is a much broader one, and public expectations are enormous.”
Both Wirtualna Polska and radio station RMF report that their sources indicate Duda would sign the legislation when it comes before him. The president held a meeting with Grodzki on Wednesday evening to discuss the reform, but this was a mere “courtesy” and “political theatre”, reports RMF.
Meanwhile, on Thursday afternoon, the European Parliament adopted a resolution on the rule of law in Poland and Hungary, warning that the situation in both countries has “deteriorated”. MEPs called on member states’ governments to “address concrete recommendations” to ensure EU law is respected.
The resolution also called on the European Commission to use “all tools at its disposal to prevent a serious breach of common values”. It suggested linking EU funds to respect for the rule of law.
After the resolution was passed, with 446 votes in favour and 178 against, MEPs from Poland’s ruling party condemned Polish opposition MEPs who have voted for it.
They are “spitting on our Polish home, informing on their country, harming Poles, destroying the image and authority of Poland”, said Beata Mazurek, who asked whether the opposition were acting out of “betrayal, hatred, stupidity or a servant mentality”.
Dlaczego opluwacie Nasz Polski Dom? Dlaczego donosicie na swój kraj? Dlaczego szkodzicie Polakom? Dlaczego niszczycie wizerunek i autorytet Polski? Opozycjo totalna, dlaczego? Z zaprzaństwa, nienawiści, głupoty, mentalności lokaja? Wszystko was kompromituje. https://t.co/HIgx2dwG6C
— Beata Mazurek (@beatamk) January 16, 2020
Leading opposition figure Borys Budka – the head of Civic Platform’s parliamentary caucus and a former justice minister – warned that the European Union had “confirmed what we have been saying, that in Poland under PiS rule there is no reform of the judiciary, and never was”.
“With this unnecessary spat with the EU,” continued Budka, “firstly we are in danger of financial penalties, secondly of having European funds frozen, and thirdly of Poland being eliminated from the EU.”
Monika Prończuk contributed to this article.
Main image credit: Jedrzej Nowicki/Agencja Gazeta
Ben Koschalka is a translator and the assistant editor at Notes from Poland. Originally from Britain, he has lived in Kraków since 2005.