Not so long ago, more precisely in 2015, a real drama happened in the EU related to the reforms in Poland's judiciary at that time. If we recall better, there was almost no comment by the EU institutions to the appointment of the 5 judges from the Polish Constitutional Tribunal by the Polish Parliament on October 8, 2015, at literally the last session organized by the outgoing party at the time, the Civic Platform which later lost both the presidential and the parliamentary elections to the Law and Justice party; but it was real ongoing drama because of the later developments, when the then new government composed of representatives of the Law and Justice party appointed five new judges. Of the five appointments made by PO, the Constitutional Tribunal itself accepted the first three appointments and invalidated the last two. Consequently, of the five appointments made by PiS after the election, the Tribunal accepted the last two PiS appointments and invalidated the first three. As none of the five PO appointments were sworn in by the president of the Republic, this ruling was disputed by the new PiS government. Then ruling PiS government went on to change the statutes regulating the Court in order to ensure that all five of its nominees sit, thereby furthering its influence on the court.
The President of the Constitutional Tribunal dictated that the new five judges should not hear cases until the situation was settled. As a reaction, PiS passed a series of laws through the Sejm and Senate which compelled the Constitutional Tribunal to allow the judges to hear new cases. The new legislation was signed into law on 28 December 2015, while in January 2016, the court ruled that the five new judges elected by the 8th Sejm were legally appointed, but in March 2016 ruled the new legislation unconstitutional. This new ruling was ignored by the Polish government, which considered it as an "advisory opinion". As a result of the legal controversies which had followed later regarding the amendments to the Law on the Constitutional Tribunal, the Venice Commission issued Opinion which dealt with the issue of the appointment of judges and called on both “majority and opposition to do their utmost to find a solution in this situation.”
In particular, the Commission emphasized that in a State based on the rule of law, “any such solution (referred to appointment of judges) must be based on the obligation to respect and fully implement the judgments of the Constitutional Tribunal.” The Commission observed that “Crippling the Tribunal’s effectiveness will undermine all three basic principles of the Council of Europe: democracy – because of an absence of a central part of checks and balances; human rights – because the access of individuals to the Constitutional Tribunal could be slowed down to a level resulting in the denial of justice; and the rule of law – because the Constitutional Tribunal would become ineffective.
Making a constitutional court ineffective is inadmissible and this removes a crucial mechanism which ensures that potential conflicts with European and international norms and standards can be resolved at the national level without the need to have recourse to European or other subsidiary courts, which are overburdened and less close to the realities on the ground” Then, the Venice Commission saw no alternative to the approach taken by the Constitutional Tribunal, i.e. that in the proceedings before the Constitutional Tribunal, the December amendments of these rules were not applicable when the Tribunal examined their constitutionality, because they would block the Tribunal in fulfilling its function according to the Constitution.
In connection with this "constitutional crisis" in Poland, numerous statements were made by the EU leaders that the new government is breaching the rule of law in the country and that it is seriously harming the Union.
In this context, the statement of the then President of the European Parliament Martin Schulz is still fresh in our memories, who described the actions taken by the then Polish government as having "characteristics of a coup", as well as the statement of Anne Brasseur, the then President of the Parliamentary Assembly of the Council of Europe, who called on the Polish politicians "not to enact, precipitously, legislation relating to the Constitutional Tribunal which may seriously undermine the rule of law."
As a result, these legal changes in Poland caused a real earthquake in the EU institutions. As a reminder, оn 13 January 2016 the European Commission launched a formal rule-of-law assessment, which caused a reaction from the Polish Constitutional Tribunal, who decided that the constitutional amendments in December 2015 were unconstitutional.
Since the problem was not resolved, on 13 April 2016 the European Parliament passed a resolution declaring that the EP was seriously concerned that the effective paralysis of the Constitutional Tribunal in Poland endangers democracy, human rights and the rule of law.
In 2017 the Government proposed further largescale judicial reform which was criticized both nationally and internationally. The Venice Commission concluded that legislation enabled the Polish legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, thereby posing a grave threat to the judicial independence as a key element of the rule of law. The Venice Commission recalled that “constitutional democracies require checks and balances. In this respect, where a constitutional court has been established, one of the central elements for ensuring checks and balances is the independent constitutional court, whose role is especially important in times of strong political majorities.” And “as long as the situation of constitutional crisis related to the Constitutional Tribunal remains unsettled and as long as the Constitutional Tribunal cannot carry out its work in an efficient manner, not only is the rule of law in danger, but so is democracy and human rights”. By calling for a solution of the constitutional crisis on the basis of the Constitution and the judgments of the Tribunal, the Venice Commission insisted that the crisis is a legal problem, which must be resolved consistent with fundamental principles of the rule of law.
Eight years later, after the victory of the coalition of parties led by the current Prime Minister, who was the loudest critic of the previous reforms and of the former government, under the guise of judicial reforms made a decision to replace around 3000 so-called neo-judges in Poland.
How did the Venice Commission and the European Commission react regarding Tusk's decision?
Ursula von der Leyen as EC President sent a message that the EU is prepared to support an overhaul of the Polish judiciary. In this context, the European Commission in May 2024 officially withdrew the Article 7 of the TEU procedure against Poland, initiated in 2017, after concluding that there is no longer a clear risk of a serious breach of the rule of law in the country?!
In the heart of the EU, there is a serious relativization of the rule of law and the principle of judicial independence by the European institutions. In this regard, it is legitimate to ask whether is consistent with the rule of law when a prime minister, as holder of executive power, calls for collective replacement of judges under the slogan "necessary reforms"?
Is article 180, paragraph 2 of the Polish Constitution, which stipulates that the removal of a judge from office, suspension, transfer to another location or position against their will, can only occur by court ruling and only in cases defined by law, no longer valid for the current Polish government? And what is this offensive formulation of neo-judges? Did this process meet the criteria of an independent judiciary as defined in the EU law and the ECHR?
Do the general rule repeated thousands of times by these two instances, that any political interference in the independence of the judiciary is not in favor of respecting the principle of independence and impartiality of the judiciary, applies to all or only to few countries in the Union?
What is the position of the Venice Commission in the urgent joint opinion with the DGI of October 14, 2024?
It is a fact that it is contrary to international and to the European judicial standards to collectively declare null and void all the elections of the so-called neo-judges appointed in the time when the conservative government was in power in Poland. In this sense, the proposed mass and retroactive dismissals of the so-called neo-judges cannot be found acceptable and legitimate, because it is not in line with the rule of law and with the principle of proportionality. The collective annulment of the judges' election is a very dangerous precedent. The right to appeal of any forcibly dismissed judge is guaranteed by all international and national legal instruments and cannot be disregarded or ignored.
The exceptions to the inability of judges tolerated by the Venice Commission is also a dangerous precedent that is likely to be subject to political maneuvering and gamesmanship by the Commission depending on the political and other interests in the country. The proposed transitional solutions in the Opinion of the Venice Commission are not solutions, but a camouflage for the legality, considering that they are not aimed at defending the legal certainty in the position of the judges, and in that sense neither at evaluating their functionality, but at creating legal precedents for legitimization of new decisions for the election of new politically appropriate judges.
The question that now arises is: what is the difference between the previous appointment of judges and the current measures? Aren’t the political measures to fire the neo-judges a violation of the independence of the judiciary in Poland?
If in the previous government there were cases of silencing and dismissal of judges only because of publicly expressed reactions against certain illegalities, what will happen now when these 3000 neo-judges speak and express their attitude of indignation?
How is it possible to believe that this political populism of the current government will solve the problems inherited from a previous government, and all that with the approval of the Venice Commission? Is this a true independence of the judiciary? Is this the rule of law? No!
Does anyone truly believe that these Tusk’s measures will provide an adequate balance between the principles of court established by law as element of fair trial and res judicata as element of legal certainty on which the Venice Commission and DGI are insisting? In my opinion, restrictive and ad hoc political solutions in the Polish judicial developments will not protect the independence of the judiciary or protect the rule of law in the country.
The independence of the judiciary is a segment and an essential part of the rule of law. The degree of independence of the judiciary is in direct correlation with the degree of the rule of law in the country. There is also the reverse relation, that is, the rule of law is a guarantor of judicial independence, taking into account not only the formal side of the rule of law, but more importantly, its essential and content side. The fact is that judicial independence is perhaps the most important segment of the rule of law, but at the same time the rule of law enables the independence of the judiciary. If the rule of law in a country is problematic, it also affects the independence of the judiciary.
With the unprincipled tailoring of the rule of law according to the political needs, the Venice Commission will not help Poland in overcoming the current constitutional crisis. Any purposeful political interpretation of the basic principles of the democratic constitutional order depending on the good grace towards the favoured party does not favor the law and the justice in any country, nor in the EU or the Council of Europe. The asymmetric and political interpretation of the judicial independence, complemented with European applause and cheering have never been a long-term solution for overcoming the problems in the judiciary!
Such measures create new frustrations in the system and undermine citizens' confidence in the true legal values!
At the end, – do someone believe that this new procedure of crippling the judge’s independence in Poland will not undermine all three basic principles of the Council of Europe: democracy – because of an absence of a central part of checks and balances; human rights – because the access of individuals to the politically independent courts could be slowed down to a level resulting in the denial of justice; and the rule of law – because the courts generally would become politicized?
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