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

October 31st, 2017 § 0 comments

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.


You can read the full preliminary observations here.

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