Poland’s ruling Law and Justice Party (PiS) has been working assiduously to forge a politically subservient judiciary since 2017, when it first passed legislation to purge certain judges and install others favorable to its policies. These policies have been regularly condemned by Poland’s neighbors, and have already led to lawsuits. Now the EU is taking the next step: suing the Polish state in the European Court of Justice, arguing that the most recent round of changes to the Polish legal system undermine judicial independence.
Deutsche Welle explains:
At issue is the Polish law affecting the judiciary that came into force in February last year.
It prevents judges from referring questions of law to the ECJ. It also created a body that rules on judges’ independence without regard to EU law.
The bill also oversaw the creation of a “disciplinary chamber” to oversee Polish supreme court judges. This chamber — criticized for its close ties to the government — has the power to lift their immunity, allowing for judges to face criminal proceedings or cuts to their salaries.
One judge, Igor Tuleya, faced suspension and a 25% salary cut in November. He was among the justices to resist the changes to the legal system.
The Commission wants the ECJ to suspend the 2019 law as well as the disciplinary chamber and the decisions it has made concerning judges’ immunity, “to prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order.”
Poland has denied any breach of judicial independence, and challenges the EU’s power to regulate its internal judicial affairs.
Another chapter in a distressing saga.
I have been remiss in posting regularly about the assault by Poland’s ruling PiS party on the country’s judiciary. The problems began back in 2017, when President Andrzej Duda and his compatriots began intimidating and pressuring the state’s judiciary undet the guise of ferreting out the remnants of communism. The government’s efforts included a reform bill that gave the ruling party enormous power to select judges, an attempt at forced judicial retirement, and repeated acts of political intimidation.
The assault continued last year with the creation of a politically charged “Disciplinary Office” for judges whose rulings did not tow the PiS party line, and an effort by the deputy justice minister to blackball judges critical of the party.
Duda was elected to another term last month, and the capture of the state’s once-independent judiciary now appears to be sadly complete. The court system’s independence is now so in question that a Dutch court has refused to extradite a suspect back to Poland unless forced to do so by the European Union. A Reuters article provides more context:
Polish rule of law has become an increasing matter of dispute within the EU, as critics say the ruling nationalist government has undue influence over judicial appointments.
The International Chamber of Amsterdam’s District Court said it did not believe Polish courts were independent of government and it would not extradite the suspect until the EU Court of Justice told it to.
In April, the EU executive opened a case against Poland’s government over muzzling judges. That came after Poland had passed a new law making it possible to punish judges who criticize the system.
“These developments harm the independence of the Polish judiciary so much that it cannot operate independently of the Polish government and parliament,” the Dutch court said in a statement.
While Democrats are tactlessly trying to shame the Supreme Court and the President inanely attacks judges on Twitter, real problems of judicial independence are spreading around the world. Where is American leadership on this issue?
In its latest move against the Poland’s increasingly restrictive judiciary laws, the European Union has asked its top court, the European Court of Justice, to suspend a recent Polish law that would force the retirement of more than one-third of its top judges.
The body said in a statement that “the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence.”
Poland’s law on the retirement of judges at the Supreme Court put 27 of 72 judges at risk of being forced to retire, the Commission said, with no clear criteria on who can stay.
The Commission gave Warsaw a first warning in July, when the law took effect, and followed it up with another step in August before taking Monday’s decision.
Previous coverage here, here, here, here, and here.
In the wake of a new Polish law lowering the mandatory retirement age of judges from 70 to 65, the European Union has advanced to the next stage of its infringement procedure against the PiS (Law and Justice Party) led government.
The new Polish law on the Supreme Court lowers the retirement age of Supreme Court judges from 70 to 65, which puts 27 out of 72 sitting Supreme Court judges at risk of being forced to retire. This measure also applies to the First President of the Supreme Court, whose 6-year mandate, set out in the Polish Constitution, would be prematurely terminated.
According to the law, current judges affected by the lowered retirement age are given the possibility to request a prolongation of their mandate by the President of the Republic, which can be granted for a period of three years, and renewed once. There are no criteria established for the President’s decision and no judicial review is available if the request is rejected.
The Commission’s position is that the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges, and thereby Poland fails to fulfil its obligations under Article 19(1) of the Treaty on European Union read in connection with Article 47 of the Charter of Fundamental Rights of the European Union.
The Polish government has been given one month to comply with its obligations. I wish I could be optimistic that it will.
The European Union is entering uncharted waters as it deals with a threat to the judiciary coming from one of its own:
The executive European Commission has triggered a punitive procedure against Poland for weakening the rule of law, the first time it has used the provision. Tuesday’s meeting will see European affairs and foreign ministers from the other 27 EU states quiz their Polish counterpart.
“The Polish government has the right to reform the judiciary as long as this does not go at the expense of the independence of the judiciary,” said the Commission’s deputy head, Frans Timmermans, who is leading the case against Warsaw.
This will not be resolved quickly or quietly.
The European Union has released its 2018 Justice Scoreboard, which measures the judicial systems of its member countries against several broad measures of efficiency, judicial quality, and judicial independence. Key to the scorecard is the perception of justice among each country’s citizens; Croatia and Bulgaria did especially poorly in this area.
The full report can be found here. I may have more to say about the methodology and scoring after I have had a chance to digest the entire report.
This past summer, Poland passed legislation widely understood to limit the independence of its judiciary, and bring it into line with the desires of the ruling PiS (Law and Justice) party. On Wednesday, after months of pleading with the Polish government to reverse course, the European Union invoked Article 7 of its charter, which allows it to discipline member states for a “clear risk of serious breach” of the EU’s core principles — here, respect for the rule of law. Article 7, known as the “nuclear option,” has never been triggered against a member state before.
There is a long process before discipline, if any, is invoked against Poland. But if 22 of 28 member states ultimately conclude that judicial independence is truly threatened, Poland could face EU sanctions or even loss of voting rights.
This week, the European Commission issued its latest reports on the justice systems of two EU member states, Romania and Bulgaria. Both states have made slow progress in positively reforming their judicial systems, but the Commission concluded that in both states, momentum for reform was lost in 2017.
Both countries have tried to put a positive spin on the report, noting they still have work to do. But they will be under renewed pressure to move closer to the Commission’s anti-corruption and transparency goals, especially in light of the significant threats to judicial independence that emerged in neighboring Poland earlier this year. The Commission’s mandate to monitor reform in both countries expires in 2019.
The full Commission reports can be found here.
Cribbing from the press release:
Today, the European Commission publishes the 2017 EU Justice Scoreboard which gives a comparative overview of the efficiency, quality and independence of justice systems in the EU Member States.
Its aim is to assist national authorities to improve the effectiveness of their justice systems. Compared to previous editions, the 2017 Scoreboard looks into new aspects of the functioning of justice systems, for example, how easily consumers can access justice and which channels they use to submit complaints against companies. For the first time, it also shows the length of criminal court proceedings relating to money laundering offences.
One of the more interesting sets of findings goes to public perception of the member states’ judicial independence. More after the jump.
Continue reading “European Commission releases 2017 EU Justice Scoreboard”