December 12, 2019: New bill in Poland seriously undermining the independence of the judiciary and the freedom of expression of legal actors
The Polish Conservatives submitted a bill on Thursday (12 December) to punish judges who question controversial reforms carried out by the government.
The proposed legislation is described by the opposition as an “attempt to gag” critical judges. It would effectively ban any dissent by judges, prosecutors and lawyers who criticise the changes in the judicial system and prosecutions that the government majority has implemented in Poland since 2015. It would also provide for severe methods of repression, up to the elimination of “defiant” judges and prosecutors.
On 28 November 2019, President of the Bar of Warsaw, Mikolaj Pietrzak, was invited by the Paris Bar to speak at a conference on the Rule of Law and Fundamental Freedoms in Europe. As a human rights lawyer, since 2016 he has been strongly denouncing, both nationally and internationally, violations of the Rule of Law in Poland, the weakening of the separation of powers and attacks on the independence of the judiciary.
At this conference, he expressed his concern about the disciplinary proceedings already implemented against 200 magistrates and recalled that lawyers are at risk of being the next victims of the current reforms.
The decision of the Court Justice of the European Union of 19 November 2019 [i]
This bill, which subordinates judges to the Ministry of Justice of Zbigniew Ziobro, is the party’s response to the recent judgment of the Court of Justice of the European Union (CJEU). It was to determine the legitimacy under European law of the new National Council of Judiciary of Poland (KRS), the institution responsible for appointing judges, and the establishment of a new Disciplinary Chamber at the Supreme Court. From the point of view of judges’ associations, these two bodies have been politicized by the current government and no longer respect the guarantees of independence.
On 19 November 2019, the CJEU refused to give a final opinion and left it to the Polish Supreme Court (referring court) to verify the independence of the two new bodies. In particular, it must determine whether the disciplinary chamber can hear disputes relating to the retirement of Supreme Court judges or in order to determine whether such cases must be examined “by another court which meets the requirement that courts must be independent”[ii].
However, the judges of the CJEU consider that the reform contains elements which “may lead to that chamber [the Disciplinary Chamber of the Supreme Court] not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law”.
Following this judgment, the judges of the Supreme Court started to examine the legality of the new KRS, which is mainly composed of judges who previously worked with the Minister of Justice. At the beginning of December, a judgment of the Polish Supreme Court ruled that the KRS did not offer guarantees of independence from political power because the ten judges sitting on it were appointed by the National Council of Judiciary. According to the Supreme Court, the Council itself is under the influence of political power.
The judges have faced rapid repression and numerous disciplinary proceedings against them. Moreover, the President of the Judicial Council has already rejected the verdict of the Supreme Court, stating that it would have no influence on the current functioning of the two bodies in question. The Vice-Minister of Justice agreed with this opinion.
Freedom of expression and freedom of association
Another blow is that of the regulations that restrict the right to associate in associations in practice and the right to speak in a public debate on the justice administration.
Judges and prosecutors will need to make declarations in which they disclose:
- which associations and foundations they belong to, what functions they perform in them and for how long;
- which parties did they belonged to before being appointed judge, especially before 1989;
- on which portals, websites or public service portals they have accounts from which they can add comments.
These declarations will go to the minister of justice and will be published in the Public Information Bulletin. This knowledge can be used to pressure and repress these judges.
The OIAD expresses its deep concern about the bill tabled by the government which aims at seriously undermining any independence of the judiciary without which the actors of justice cannot effectively carry out their functions.
The OIAD recalls that according to the UN Special Rapporteur on the Independence of Judges and Lawyers « justice operators should be held accountable for instances of professional misconduct that are gross and inexcusable and that also bring the judiciary into disrepute. However, in order to ensure the independent exercise of their functions, they should not be subject to disciplinary proceedings or sanctions relating to the content of their rulings, verdicts, or judicial opinions, judicial mistakes or criticism of the courts»[iii].
The OIAD urges all European Union Member States to call on Poland to cease all infringements of the principle of judicial independence.
[i] Judgment of the CJEU (Grand Chamber), joined cases C-585/18, C-624/18 et C-625/18, 19 November 2019:
[ii] CJEU, Press release No 145/19, 19 November, 2019, joined cases C-585/18, C-624/18 et C-625/18 : https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-11/cp190145en.pdf
[iii] Report of the special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, 28 April 2014, A/HRC/26/32 :