Poland becomes first country to be expelled from European judicial network

Poland’s National Council of the Judiciary (KRS) has been expelled from the European Network of Councils for the Judiciary (ENCJ) due to its politicisation under the current Polish government. It is the first time a national judicial council has ever been thrown out of the ENCJ.

The KRS is responsible for nominating judges, as well as for upholding their independence. Previously, a majority of its members were chosen by the judiciary itself. But, in 2018, the institution was overhauled, with parliament given the right to name 15 of its 25 members. Most of the remainder were already political appointments.

At its general assembly yesterday, the ENCJ decided that these changes had compromised the independence of the KRS and voted to expel it. An overwhelming majority of 86 ENCJ members were in favour of the expulsion, while only six voted against it, reports Wirtualna Polska.

“It is a condition of ENCJ membership that institutions are independent of the executive and legislature and ensure…support of the judiciary in the independent delivery of justice,” announced the ENCJ.

“The KRS does not comply with this statutory rule anymore. [It] does not safeguard the independence of the judiciary, it does not defend the judiciary or individual judges…in the face of measures which threaten to compromise the core values of independence and autonomy,” it added.

The ENCJ expressed sorrow at having to take such a step, saying that “this is by no means a decision to celebrate”. It noted that the KRS had been one of the ENCJ’s founding members and that its representatives had previously been “very much respected and contributed highly to the work of the network”.

“To exclude a council from this cooperation is…not a decision that has been taken lightly,” it added. “This is an act in defence of the ENCJ and the values it stands for such as judicial independence and the rule of law in Europe.”

The ENCJ added that it would “welcome back” the KRS as a member if and when it once again “fulfils the requirement that it is independent”.

Poland’s government, however, rejects claims that the KRS is under political control. It also notes that politicians in other European Union countries – which remain members of the ENCJ – have influence over the selection of judges.

The ENCJ’s decision to expel the KRS is “a gross violation of the equality of states”, deputy justice minister Michał Woś told Wirtualna Polska yesterday. “How can you say that someone is politicised just because they were chosen by parliament and the opposition doesn’t like it?”

Marek Ast, an MP from the ruling Law and Justice (PiS) party, said that the KRS’s expulsion is “a pity” and that he hoped that, after “reflection”, it would be let back in, reports TVN24. But he also noted that the ENCJ is only “a forum for the exchange of views” and there is no obligation for Poland to be a member.

“Contrary to what the opposition and part of the judicial community are trying to convince Polish society of, nothing has changed with regard to the independence of judges,” Jan Kanthak, an MP from the ruling coalition, told Onet this morning.

A wide variety of domestic and international institutions and expert bodies have found the Polish government’s judicial policies – including the changes to the KRS – to undermine the rule of law and, in some cases, to violate the Polish constitution and European law.

In 2019, the Polish Supreme Court ruled that “the KRS is not an impartial and independent body” due to the changes made by the government.

Earlier this year, the European Court of Human Rights likewise found that judges are now appointed by a KRS that is under political influence, thereby violating the right to a fair trial.

In 2018, the ENCJ suspended the KRS’s membership due to its concerns at the government’s changes. Last year, the ENCJ proposed expelling the KRS entirely, saying that it was “in blatant violation of the ENCJ rule to safeguard the independence of the judiciary” and “undermines the application of EU law”.

Main image credit: Gerd Altmann/Pixabay

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.