List Prezydenta Europejskiej Sieci Rad Sądownictwa

Przedstawiamy list Prezydenta Europejskiej Sieci Rad Sądownictwa (ENCJ) Nuria Díaz Abad na temat sytuacji w Polsce 

MEETING WITH POLISH JUDGES IN THE EUROPEAN COMMISSION I. BACKGROUND INFORMATION

On 8th October 2015 the Sejm elected three new constitutional judges to replace those whose mandate expired in November 2015 and two additional judges to replace two Justices whose mandates did not expire until December.

On 25th October 2015 the party “Law and Justice” won the parliamentary elections in Poland.

The Polish President, Mr. Duda, refused to swear in the three judges of the Constitutional Tribunal. Instead the Parliament elected five new judges and the Polish President swore them in.

In the judgments of the 3rd and 9th December 2015 the Constitutional Tribunal considered that only two of the five elected judges had been validly elected.

The President of the Constitutional Tribunal, Mr. Rzesplinski, only admitted to the bench the two Justices elected to replace those judges whose mandate expired in November 2015. So the Constitutional Tribunal had twelve, instead of the fifteen required judges.

On the 22nd December a law was adopted to amend the Constitutional Tribunal Act, that affected the procedure and the independence of the Tribunal judges. A constitutional complaint was lodged against this Law by the KRS, the Ombudsman, a group pf opposition MPs and the Chief Justice of the Supreme Court.

On the 13th January 2016 the European Commission launched a dialogue on the situation in Poland and the Rule of Law framework and requested information on the situation concerning the Constitutional Tribunal and on the changes in the law on the Public service Broadcasters.

On 9th March the Constitutional Tribunal ruled that this law was unconstitutional. The Constitutional Tribunal did not proceed in this case based on this amendment and the Government reacted by refusing to publish this judgement in the Official Journal.

On 11th March the Venice Commission published its opinion on this amendment, stating that it is a threat to the rule of law and to the functioning of the democratic system.

On 7th April 2016 the KRS adopted a resolution observing that, being a representative of the Executive Power, the Minister of Justice and Public Prosecutor General is not authorised to verify the judgments of the Constitutional Tribunal.

On 26th April 2016 the Polish Supreme Court adopted a resolution declaring the compliance with the judgments of the Constitutional Courts on the constitutionality of laws from the moment they were announced, whether or not the Polish Government published them in the Official Journal.

On 1st June 2016 the European Commission adopted a negative opinion on governance and democracy in Poland, setting a deadline of two weeks for the Polish Government to reply and present its position.

On the 3rd June 2016 during the ENCJ’s General Assembly a declaration was adopted that states that

” in relation to the developing situation on Poland, the ENCJ emphasises the importance of the executive respecting the independence of the judiciary, and only undertaking reforms to the justice system after meaningful consultation with the Council for the Judiciary and the judges themselves”.

On 22nd June the KRS adopted a proposal to nominate ten judges of common courts, but the Polish President refused to nominate them.

On 22nd July 2016 another amendment to the Constitutional Tribunal Act was approved, concerning this time the functioning of the Constitutional Tribunal. Again this law was appealed to the Constitutional Tribunal by a group of MPs, the Ombudsman and the Chief Justice of the Supreme Court and on 11th August 2016 nine of the ten appealed provisions were declared unconstitutional. The Polish Government did not recognise the validity of this judgment and did not publish It in the Official Journal.

On 27th July 2016 the European Commission adopted the Recommendation (EU) 2016/1374, in which it found that there had been a systematic threat to the rule of law and set a deadline of three months for carrying out its recommendations.

On the 15th August 2016 the Government published 21 of the 23 judgements rendered by the Constitutional Tribunal between the 9th March and the 11 August 2016, except the judgments of the 9th Mach and the 11th August mentioned above.

On 18th August the Public Prosecutors’ service launched a criminal investigation against the President of the Constitutional Tribunal for not allowing the three judges appointed in December 2015 to take their functions.

An extraordinary congress of the Polish judges took place on 3rd September in Warsaw. As a result three declarations were adopted, concerning the role of judicial power as a guarantor of the right to be heard before a court. In their statement the Polish judges claimed that the legislative and the executive powers have been taking steps aimed at subordinating the judicial power, that include gradual limitation of the rights of judiciary self-government in courts of law, strengthening of the executive power’s supervision over courts of law and subordinating the interpretation of basic systematic provisions on the judiciary and tribunals to current political interests. The Polish judges noted with concern the proposal to amend the Act on the National Council for the Judiciary in Poland, that led to the weakening of the position of the Council and to the weakening of the judicial power. The ENCJ was invited to this congress and its President explained the ENCJ standards in relation to the role and composition of Councils for the Judiciary, the Standards for selection and appointment of judges and for judicial reform.

The Venice Commission rendered a new opinion on 14th October 2016 on the reform regarding the Constitutional Tribunal approved by the Law of 22nd July 2016.

On 26th October 2016 the CCJE rendered an opinion on the decision of the Polish president not to appoint as judges ten candidates presented by the KRS considering that this decision in not in accordance with the Council of Europe’s standards for judicial independence, pointing out that the President of the Republic did not provide reasons for this decision, which constitutes a lack of transparency in the procedure. This same day the Sejm submitted a new legislative proposal on the organisation and proceedings before the Constitutional tribunal.

On 27th October 2016 the Polish Government replied to the Commission’s recommendation. The reply disagrees on all points.

On 4th November the Polish Parliament adopted another revision of the law on the Constitutional Tribunal, this time regulating the status of its judges.

On 7th November 2016 the Constitutional Tribunal rendered a judgment on the constitutionality of the law of 22 July 2016.

On 26th November a new revision of this law was approved, giving a decisive role to the act of swearing in by the President of Poland and regulating the person to be elected by the new Parliament for the position of President of the Tribunal.

On the 19th December 2016 the Polish President signed three new laws referring to the Constitutional Court: the law on the status of judges, the law on organisation and proceedings and the implementing law.

On 21st December 2016 the Commission adopted the Recommendation (EU) 2017/146 regarding the rule of law in Poland, complementary to the recommendation (EU) 2016/1374, urging the Polish authorities to take appropriate action to address the systematic threat to the rule of law regarding the situation of the Constitutional Tribunal and inviting the Polish government to solve the problems identified within two months. The Commission also recalled that the recommendations adopted under the Rule of Law Framework do not prevent the mechanisms set out in article 7 TEU being activated directly.

On 16th January 2016 the President of the Venice Commission made a statement expressing his concerns about the worsening situation within the Constitutional Tribunal in Poland.

On 25th to 27th January 2017 a delegation of the Netherlands’ Council for the Judiciary visited Poland.

On the 27th January the ENCJ received a formal request of cooperation from the KRS to advise on two new legislative proposals from the Polish government. The ENCJ in principle does not give opinion on draft legislation, but the Executive Board considered that it could submit observations and comments regarding the ENCJ’s standards on the involvement of the judiciary in judicial reform, on the termination of mandate of Council members and on the appointment of judicial members by Parliament, as well as on selection and appointment of judges concluding that

“The Board of the ENCJ feels that the draft laws could harm the independence of the judiciary in Poland. The ENCJ standards are not met in several fields. These standards are not developed to serve the interests of the judiciary. The standards simply reflect the shared principles and values of the EU Member States which guarantee a proper functioning of a democratic system based on the Rule of Law”

The full statement of the Board is published on the ENCJ website

On the other hand, considering the fact that the Polish Minister of Justice, Mr. Ziobro, considered that the election of the judicial members of the Council by the Parliament is already established in Spain, the KRS asked the Spanish Council of the Judiciary (CGPJ) to answer a questionnaire on the appointment of its members. This questionnaire was answered on the 9th February 2017, pointing out that the election of the 12 judicial members of the CGPJ follows an open procedure to submit candidatures by the judicial association or by judges themselves. In this last case the candidatures must count with the support of 25 judges. There is a percentage of judges of different tiers guaranteed in the composition of the Council: three Justices from the Supreme Court, three senior judges with a seniority of at least 25 years and six other judges or senior judges not bound to this rule. Should there be no candidates for one of these categories, the candidature will be covered with the next category in the order mentioned above.

On 27th February the Judicial Council of the Slovak Republic adopted a statement noting that the current system of appointing the members of the National Council of the Judiciary of Poland is in full compliance with international standards of the European Union countries on the system ensuring the independence of the judiciary and judges and that upcoming changes in its composition regarding the appointment of the members by the legislative body are considered to be a solution that does not respect the principle of separation of powers and equality of the three powers in the rule of law.

On March 2nd the Bureau of MEDEL adopted an opinion on the draft legislation in Poland (http://www.medelnet.eu/).

On 9th March 2017 the First Vice President of the European Commission, Mr. Timmermans, invited ENCJ to a meeting, along with the President of Network of Presidents of the Supreme Judicial Court of the European Union and the President of the Association of the Council of State and Supreme Administrative Jurisdictions of the European union (ACA) to exchange views on the situation of the Judiciary in Poland.

On 22nd March the OSCE Office for Democratic Institutions and Human Rights published a preliminary opinion on the draft amendments to the act on the national Council of the Judiciary and certain other acts of Poland.

On 31st March 2017 the Commissioner for Human Rights of the Council of Europe wrote a letter to the Speaker of the Sejm of the Republic of Poland expressing his concerns about the proposed amendments and points out that the principles developed by ENCJ “also stipulate that the mechanism for appointing judicial members of a judiciary council must exclude any executive or legislative interference and that the election of judges should be solely by their peers.” He finishes his letter encouraging the Polish Parliament to reject the proposed amendments.

On 3rd April the President of CCBE has sent a similar letter to Speaker of the Sejm. The Bureau of the CCJE also published a statements as well as the European Judges Association.

On 9th April the Sejm accepted the draft law for further work (234 in favour – 197 against). Final adoption of the proposal is expected later in April. The proposal will then be sent to the Senate.

  1. MEETING WITH POLISH JUDGES IN THE EUROPEAN COMMISSION

For the 24th April a meeting with 25 Polish judges, organized by the Representation of the Commission in Poland, has been scheduled with representatives of ENCJ

In my view the aim of the meeting is to explain the situations of the judiciary in the country and to get ENCJ involved in explaining its opinion regarding the proposed reform of the KRS. We should listen and be open to explore other ways of collaboration. Nevertheless I think we should not send a letter to the Speaker of the Polish Parliament. Our opinion on the reform is published on our website, so that it could be used in the debate in Parliament. Getting ourselves involved in an internal political debate goes, in my view, beyond the aims of our association.

Done in Madrid, 7th April 2017

Nuria Díaz Abad

President of the ENCJ

 

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