Poland: Preliminary observations by the UN Special Rapporteur on the independence of judges and lawyers

October 31st, 2017 § 0 comments § permalink

Preliminary observations on the official visit to Poland (23-27 October 2017) by the United Nations Special Rapporteur on the independence of judges and lawyers, Mr. Diego  García-Sayán,Warsaw, 27 October 2017:

Preliminary conclusions and recommendations

The independence of justice is under serious threat in Poland today.

I acknowledge that the reform and modernization of judicial institutions is a legitimate objective for any Government to pursue. However, I cannot but stress that the judicial reform that the Polish Government is putting in place to address the shortcomings currently affecting the Polish judicial system will, in the long run, have a long-lasting, adverse effect on the independence of its judicial system.

The current reform, undertaken by the governing majority in haste, and without proper consultation with the opposition, the judiciary and civil society actors, including the Office of the Ombudsman, risks hampering the capacity of judicial authorities to ensure checks and balances and protect and promote human rights.

The first victim of this unilateral approach is the Constitutional Tribunal, whose authority has been seriously undermined by the dispute currently underway relating to its composition and the legality of the some of its ruling. In such circumstances, the Tribunal is actually in no position to ensure an effective constitutional review of the acts adopted by the legislative authorities.

It is high time that all political forces commit to sit at the negotiating table and engage in good faith in a constructive dialogue aimed at restoring the authority of the Tribunal and its role as guarantor of the supremacy of the Constitution.

Any long-lasting solution to the constitutional situation that Poland is facing today should be firmly rooted on the principles of the independence of the judiciary and the separation of powers, and take into account previous rulings of the Constitutional Tribunal, such as those of 3 and 9 December 2015.

The same principles apply to the reform of the ordinary court system, the Supreme Court and the National Council of the Judiciary. The independence of the judiciary is enshrined in the Polish Constitution, and it is the duty of the Government and legislative authority to respect and protect this essential principle of rule of law. In accordance with the principle of separation of powers, the Government and the Parliament must refrain from any inappropriate or unwarranted interference with the judicial process, particularly in relation to the appointment, dismissal and promotion of members of the judiciary.

They must also ensure that any modification of the mandatory retirement age does not adversely impact the security of tenure of judges.

The way out of this critical moment is to promote a fair, open and transparent process involving not only the parliamentary majority and the opposition, but also the judiciary, the Office of the Ombudsman and civil society actors. Any reform of the judiciary should aim at strengthening, not at undermining, the independence of the justice system and its actors. The independence of the judiciary and the separation of powers must constitute the guiding principles of any such reform.

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You can read the full preliminary observations here.

Poland: CCJE Bureau publishes opinion on the Draft Act of September 2017

October 23rd, 2017 § 0 comments § permalink

Click here to read the Opinion of the Bureau of the Consultative Council of European Judges (CCJE) re Draft Act of September 2017 presented by the President of Poland amending the Act on the Polish National Council of the Judiciary and certain other acts.

Poland: UN expert to assess independence of justice system during visit

October 23rd, 2017 § 0 comments § permalink

Poland: UN expert to assess independence of justice system during visit

GENEVA (19 October 2017) – United Nations Special Rapporteur Diego García-Sayán will carry out an official visit to Poland from 23-27 October 2017, to assess the impact of the constitutional crisis on the composition and functioning of the country’s constitutional tribunal and the implications of the Government’s extensive reform of the judicial system….continue to read here (press rlease of the UN Special Rapporteur).

Council of Europe: Outcome of the Parliamentary Assembly session on 10-13 October 2017

October 16th, 2017 § 0 comments § permalink

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PACE, 10-13 October 2017, Strasbourg

Amongst others, the Parliamentary Assembly of the Council of Europe (PACE) concluded as follows at its session:

New threats to the rule of law in Council of Europe member States: selected examples: Resolution 2188 (2017) of the Parliamentary Assembly

“The Assembly has thoroughly examined the situation in five member States: Bulgaria, the Republic of Moldova, Poland, Romania and Turkey. Although the list of problems found in those States does not include all of those to be found in Council of Europe member States, the Assembly is concerned about some recent developments which put at risk respect for the rule of law, and, in particular, the independence of the judiciary and the principle of the separation of powers. This is mainly due to tendencies to limit the independence of the judiciary made though attempts to politicise the judicial councils and the courts (mainly in Bulgaria, Poland and Turkey), massive revocation of judges and prosecutors (Turkey) or attempts to do so (Poland) and tendencies to limit the legislative power of the parliament (the Republic of Moldova, Romania and Turkey). Moreover, corruption, which is a major challenge to the rule of law, remains a widespread phenomenon in Bulgaria, the Republic of Moldova and Romania.” (To read the entire Resolution, click here.)

Venice Commission’s “Rule of Law Checklist”

The Assembly decides to:

6.1. endorse the Venice Commission’s Rule of Law Checklist;
6.2. use it systematically in its work, particularly in the preparation of reports of the Committee on Legal Affairs and Human Rights and the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), in order to accurately identify any structural and systemic problems in the Council of Europe’s member States;
6.3. invite the national parliaments and government bodies, including the relevant ministries, when assessing the need for and the content of legislative reform, to refer systematically to the Rule of Law Checklist;
6.4. invite international and regional organisations, including the Council of Europe as a whole and the European Union, to refer regularly to the Rule of Law Checklist in their relevant work. In this connection, the Assembly congratulates the Secretary General of the Council of Europe on having taken the Rule of Law Checklist into account in his 2017 annual report on the situation of democracy, human rights and the rule of law in Europe, and urges him to do so systematically in all his future annual reports;
6.5. encourage civil society to use the Rule of Law Checklist to objectively assess respect for the rule of law.
(To read the entire document, click here.)
Please click here for more information on the results of the PACE session.

Council of Europe: PACE session, 10-13 October 2017, Strasbourg

September 29th, 2017 § 0 comments § permalink

The Parliamentary Assembly of the Council of Europe (PACE) session will discuss, inter alia:

Wednesday 11 October

The functioning of democratic institutions in Azerbaijan

The draft resolution includes (amongst others) a call to “ensure also that no pressure is exerted on lawyers defending NGO representatives, political activists, human rights defenders and journalists”; read more about the situation of lawyers in the explanatory memorandum attached to the resolution;

Venice Commission’s “Rule of Law Checklist”

The Assembly is expected to endorse the Venice Commission’s Rule of Law Checklist;

New threats to the rule of law in Council of Europe member States: selected examples

The committee on Legal Affairs and Human Rights proposes specific recommendations addressed to these five countries [Bulgaria, Moldova, Poland, Romania, Turkey] and expresses particular concern regarding the situation in Turkey following the measures taken under the state of emergency and the recent amendments to the Constitution.

The explanatory memorandum specifically refers (amongst others) to lawyers/Moldova: “The Moldovan judiciary is affected by negative public perception and “perceived political interference in the judiciary and law enforcement is a systemic impediment to social and economic development”. Some judges have been prosecuted for their decisions (for example, judge Domnica Manole, who annulled the decision of the Central Election Commission rejecting the holding of a referendum on amending the Constitution requested by a political party) and the same has happened to lawyers engaged in high-profile cases (see cases of Ana Ursachi, Veaceslav Turcan and Maxim Belinschi).”

The session programme can be downloaded here. The session is streamed live on PACE’s website.

Poland: Independence of the judiciary – EC takes second step in infringement procedure against Poland

September 13th, 2017 § 0 comments § permalink

Please read for the details the press release of the European Commission of 12/09.

European Commission acts to preserve the rule of law in Poland

July 26th, 2017 § 0 comments § permalink

Brussels, 26 July 2017 – Press release of the European Commission

The Commission substantiates its grave concerns on the planned reform of the judiciary in Poland in a Rule of Law Recommendation addressed to the Polish authorities. In the Commission’s assessment, this reform amplifies the systemic threat to the rule of law in Poland already identified in the rule of law procedure started by the Commission in January 2016. The Commission requests the Polish authorities to address these problems within one month. The Commission asks the Polish authorities notably not to take any measure to dismiss or force the retirement of Supreme Court judges. If such a measure is taken, the Commission stands ready to immediately trigger the Article 7(1) procedure[1] – a formal warning by the EU that can be issued by four fifths of the Member States in the Council of Ministers…

Continue to read here the full press release of the European Commission.

Poland: President will not sign Act on the Supreme Court and Act on the National Council of the Judiciary

July 25th, 2017 § 0 comments § permalink

On 24 July 2017, the President of the Republic of Poland declared that he will veto the bills on the Supreme Court and on the National Council of the Judiciary. However, the Act amending the Law on the Common Courts Organisation will be signed. Read more here.

Poland: CCBE expresses serious concerns over recent Acts on the judiciary

July 20th, 2017 § 0 comments § permalink

On 18 July 2017, the President of the CCBE addressed a letter to the President of the Republic of Poland expressing the CCBE’s concerns about the amendments adopted to the Polish Act on the National Council of the Judiciary and the Act amending the Law on Common Courts Organisation, as well as the new draft Act on the Supreme Court which the Polish Parliament received.

The CCBE points out that:

– The amendment to the Act of the National Council of the Judiciary gives a substantial role to politicians in the selection and appointment of judges, which contravenes the constitutional principle of independence of the judiciary.

– The Act amending the Law on the Common Courts Organisation – which changes the rules of appointing and recalling presidents of courts – increases the authority of the Minister of Justice by enabling the Minister to arbitrarily recall all the presidents of courts in Poland during their term of office.

– The draft Act on the Supreme Court foresees that all judges of the Supreme Court (save for those designated by the Minister of Justice) will retire immediately upon when the said Act enters into force.

The CCBE calls upon the President of the Republic of Poland to use the right of veto and to refuse to sign the above-mentioned amendments, as they are threatening the autonomy and independence of the judiciary.

Read the CCBE letter here.

The European Commission also discussed the latest developments with regard to the Polish judiciary and related legislative acts. In the Commission’s view “If implemented in their current form, these laws would have a very significant negative impact on the independence of the judiciary and would increase the systemic threat to the rule of law in Poland.” On 19 July 2017, the College of Commissioners held a first in-depth discussion on these new developments, expressed its serious concerns, and looked into the legal and political options available to the Commission to act upon these concerns. The Commission will revert again to this matter next week. For more information, click here.

CCJE opinion on draft act on the Polish National Council of the Judiciary

April 20th, 2017 § 0 comments § permalink

The Consultative Council of European Judges (CCEJ) has made public their requested opinion on the Draft Act amending the Act of 12 May 2011 on the Polish National Council of the Judiciary and certain other acts. The CCEJ state that they are deeply concerned by the implications of the Draft Act for the constitutional principle of separation of powers as well as that of the independence of the judiciary. The CCEJ considers that the Draft Act would be a major step backward from real judicial independence in Poland. Read the full opinion here.