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Polish judges, joined by judges from other European countries, wear their robes during a January 11 protest against proposed reforms that would undermine judicial independence. Warsaw, January 11, 2020.  © 2020 Attila Husejnow/AP Images
(Budapest) – President Andrzej Duda of Poland should veto a law allowing the government to punish or even fire judges who criticize its restrictions on the courts. The measure would even apply to judges who are performing their obligations in carrying out judgements of the EU Court of Justice.  

“Political interference with the judiciary bears all the hallmarks of an authoritarian government, striking at the heart of rule of law and human rights protections,” said Lydia Gall, Balkan and Eastern EU senior researcher at Human Rights Watch. “The president should shut down the government’s efforts to further erode the independence of the courts, attacking judges, and abide by EU court rulings.”

The law adopted by the Sejm, the lower house of the Polish parliament, penalizes and could result in the firing of judges who criticize the legitimacy of the ruling Law and Justice Party government’s legal changes or who refer to the EU Court of Justice guidance on the status of judges appointed by the new National Council of Judiciary.  

The Sejm, where Law and Justice has a majority, rushed the bill through in December 2019.  The Senate subsequently sent it back to the Sejm for further deliberation and a vote. Because of the Senate’s limited powers, the bill as adopted by the Sejm will come into force unless the president vetoes it.

The law is a response to rulings by the EU Court of Justice (ECJ) and the Polish Supreme Court with respect to disciplinary measures against sitting judges. In a November 19 judgment, the ECJ outlined legitimate doubts regarding the independence of the members of the recently established disciplinary chamber of the Supreme Court, potentially making the chamber’s rulings invalid. The ruling left it to the Polish court system – in particular to the Supreme Court – to determine the independence of the disciplinary chamber and the National Council of the Judiciary (NCJ), the body responsible for appointing judges.  

On December 5, a chamber of the Supreme Court ruled that the NCJ, in its current composition, is not an independent body and that the disciplinary chamber is not a court. In January 2020, a different chamber of the Supreme Court issued a contradictory ruling which led to the need for a resolution from the full panel of the Court to resolve the legal discrepancy. On January 23, the Supreme Court finally ruled illegal the appointments of judges by the NCJ, upheld the ruling that the chamber was not a court, and ruled that future resolutions by the chamber were not legitimate.

In a clear-cut example of how the government is actively intervening and obstructing the Polish judiciary, Justice Minister Zbigniew Ziobro called the ruling “a gross violation of the law”, and said its “so-called resolution has no legal effects.”

Poland’s government’s attacks on its judiciary have triggered EU reactions. The European Commission in December 2017 opened legal action against Poland under article 7 of the EU Treaty for being in risk of violating rule of law. The action could ultimately result in Poland being stripped of its voting rights.

In addition, the ECJ ruled in June that Polish laws forcing Supreme Court judges into retirement violated EU law and judicial independence. In early November, the court stated that lowering the retirement for judges in common courts was contrary to EU law. Earlier in January, the Commission asked the court to order Poland to suspend the workings of the Supreme Court’s disciplinary chamber.

The Council of Europe’s legal advisory body, the Venice Commission, between 2016 and 2020 has issued six opinions expressing serious concerns about draft laws pertaining to Poland’s judiciary, and the Council’s Human Rights Commissioner in June raised similar rule of law concerns.

The law to restrict criticism by judges is the latest in a long line of attacks by the government on courts and judges, Human Rights Watch said. The constitutional and legal chaos in Poland is part of an overall strategy by the ruling party since it came to power in 2015 to effectively eliminate checks on its power. The government has packed the constitutional tribunal by replacing non-aligned judges with ruling party loyalists and the ruling party has attempted to fire the head of the Supreme Court.

The independence of common courts has been compromised and judges and prosecutors face disciplinary proceedings and public shaming for standing up for the rule of law, Human Rights Watch said. In addition, the government is waging a war on independent journalists, independent organizations, human rights groups, activists, and others opposing the government’s regressive populist policies. 

Tens of thousands of ordinary Poles have taken to the streets to defend judges against attempts by the government to purge and sideline them. On January 11, judges from across Europe joined the protests in Warsaw.

EU member states should closely monitor the situation in Poland, hold the government to account, and convene an urgent hearing on the situation under the Article 7 proceedings, Human Rights Watch said.

“President Duda has the opportunity to ensure that Poland respects its EU membership obligations by scrapping this abusive law,” Gall said. “EU institutions, in particular the Council, should take seriously their responsibility to ensure members comply with EU laws and use all tools available to hold violators to account, including tying EU funds to rule of law criteria.”

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