Abstract
Imagine a Country Where, Due to the Cumulative Effect of Repeated and Grossly Unconstitutional Legislative Changes Targeting the Judiciary, the Executive and Legislative Powers Can “Interfere Throughout the Entire Structure and Output of the Justice System”;
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Imagine a Country Where, Due to the Cumulative Effect of Repeated and Grossly Unconstitutional Legislative Changes Targeting the Judiciary, the Executive and Legislative Powers Can “Interfere Throughout the Entire Structure and Output of the Justice System”;Footnote 1
Imagine a country whose government routinely refuses to “publish and implement fully”Footnote 2 multiple rulings of the national constitutional court regarding judicial independence matters;
Imagine a country whose national authorities appoint an acting president of the constitutional court in manifest breach of the constitution;Footnote 3
Imagine a country whose national authorities appoint several individuals to the constitutional court at 1.30am, a few hours before the same constitutional court was due hear a case regarding this very issue, to create an unconstitutional fait accompli;Footnote 4
Imagine a country whose ruling party also forces a legislative change “in the early hours of Friday morning”, even though the change “had not even been on the agenda” of the Parliament the day before, so as to void pending cases challenging the legality of the manifestly irregular judicial appointments made by the ruling coalition via a manifestly unconstitutionally re-established national council of the judiciary; J. Shotter (2019).
Imagine a country whose president openly disregards several freezing orders of the national supreme administrative court in order to force dozens of unlawful appointments to the national supreme court, in particular but not only to two new chambers which are themselves manifestly in violation of the right to an independent tribunal established by law;Footnote 5
Imagine a country whose president’s re-election was subsequently validated by the same individuals he unlawfully appointed to the supreme court in “blatant defiance of the rule of law”Footnote 6 notwithstanding the obvious “risk of setting up an unlawful court”;Footnote 7
Imagine a country whose national authorities forcibly retire the president of a supreme court on the basis of a retroactive lowered retirement age notwithstanding the constitutional provision providing for a fixed term of six years;Footnote 8
Imagine a country whose national authorities issue official instructions to ignore national supreme court’s rulings; E. Ivanova (2018).
Imagine a country whose national authorities organise the mass dismissal of presidents and vice-presidents of ordinary courts “without any specific criteria, without justification and without judicial review”;Footnote 9
Imagine a country whose national authorities hide behind a patently unlawful decision of the captured office of the supposedly independent data protection authority J. Zajadło (2019) to refuse to comply with a final ruling of the national supreme administrative court to prevent the disclosure of information establishing the unlawful composition of the national council for the judiciary;Footnote 10
Imagine a country whose prime minister equates independent judges with Nazi-era collaboratorsFootnote 11 while the ruling coalition promotes a “vision” whereby judges are expected to be always “on the side of the state”, with the conduct of judges being described as “dangerous” when they “turn against the legislative and executive authorities”;Footnote 12
Imagine a country where a secret “troll farm” is set up within a ministry of justice so as to organise smear campaigns via for instance criminal acts such as the provision of confidential and/or personal information to an anonymous Twitter account in respect of most vocal and/or senior judges who defend judicial independence M. Pankowska (2019) all the while the government is claiming that they “have never undermined the legitimacy of the Supreme Court, ordinary courts or judges – individually or collectively”;Footnote 13
Imagine a country where authorities adopt a grossly unconstitutional law so as to give themselves the opportunity to discipline judges at will for the content of their rulings;Footnote 14
Imagine a country where national authorities routinely harass and threaten judges for complying with ECJ orders and/or judgments; open disciplinary investigations against judges who submit requests for a preliminary ruling to the ECJ and actually suspend them and/or cut their wages for doing so; do the same against judges who apply EU and/or ECHR rule of law related judgments;Footnote 15
Imagine a country where prosecutors are instructed to immediately report any judges doing soFootnote 16 and where captured prosecutors also launch bogus criminal proceedings against judges disliked by the prosecutor general who is also simultaneously the minister of justice on the back of a legislation described by the Venice Commission as organising “a system with such wide and unchecked powers” that such a system “is unacceptable in a state governed by the rule of law”;Footnote 17
Imagine a country where prosecutors who participate to a congress of prosecutors during which abusive interferences with their independence were denounced, are subsequently investigated by those abusively interfering with their independence; M. Jałoszewski (2019).
Imagine a country where independent minded prosecutors are “posted to places that are far from where they live in circumstances that bear the signs of harassment”,Footnote 18 what’s more, in the midst of a pandemic and without any advance notice;
Imagine a country where the prosecutor general “wants to prosecute 1,278 judges”Footnote 19 at once for signing a letter to the OSCE to highlight the planned holding of manifestly irregular presidential elections;
Imagine a country where the same prosecutor general is investigating “several dozen old Supreme Court judges, including the former president of the Supreme Court” M. Jałoszewski (2021) and the current president of the criminal chamber of the Supreme Court so as to bring bogus criminal charges against them;
Imagine a country where a judge has been unable to adjudicate and see his pay cut by 25% for over 700 days following his attempt to implement a CJEU ruling; M. Jałoszewski (2020) and Rechters voor Rechters (2020) Imagine a country where national judgments reinstating unlawfully suspended judges are routinely ignored M. Jałoszewski (2021). And M. Jałoszewski(2022) and a special relief fundFootnote 20 has to be set up to provide financial assistance to judges suspended by an unlawful body on the basis of unlawful rules for inter alia adjudicating in compliance with ECJ and ECtHR rule of law related rulings;Footnote 21
Imagine a country whose authorities routinely and deliberately provide misleading information and accounts to EU institutions,Footnote 22 including to the ECJ as regards the actual aims of their so-called judicial “reforms” or the reality of their actions;Footnote 23
Imagine a country where national authorities routinely violate rulings of the national courts applying ECJ and/or ECtHR judgments relating to judicial independence matters and consider them “non-existent” R. Lawson (2021);
Imagine a country whose national authorities make repeated use of an unlawfully composed and unlawfully presidedFootnote 24 local puppet A. Wądołowska (2020) constitutional court to give a veneer of legality to the systemic violation of national constitutional, EU and ECHR rule of law requirements; to find EU and ECHR fundamental provisions regarding the right to an independent tribunal established by law “unconstitutional” and do so in the name of the “rule of law” and the primacy of the national constitution, both of which are in fact repeatedly violated in plain sight See generally L. Pech, P. Wachowiec and D. Mazur (2021);
This country is not a fictional one. This country is a member state of the EU. This country is Poland under the rule of the Orwellian-named “Law and Justice” party.
As observed on 16 October 2019 by the then First President of Poland’s Supreme Court, “The end result is that the rule of law in Poland is not simply at risk: it is being erased”.Footnote 25
What has been the EU’s reaction in the face of this sustained, deliberate annihilation of judicial independence in a broad context of systemic dismantlement of all checks and balances making Poland’s the most autocratising country in the world in 2020 according to the leading V-DEM Institute?Footnote 26
Well, we have seen a grand total of five infringement actions launched by the Commission since the beginning of Poland’s rule of law breakdown six years ago, with the Commission also activating Article 7(1) procedure in December 2017 on the back of which the Council has organised a grand total five formal hearings, that is, a grand total of one hearing per year on average.Footnote 27
By contrast, Polish judges, have submitted a total of 40 preliminary ruling requests raising the most serious judicial independence issues, at the price of their careers, livelihood and safety.
Writing in 2018, I warned that the situation in Poland “has deteriorated further to the point of threatening the functioning of the whole EU legal order and therefore, the future of the EU’s internal market itself L Pech and P Wachowiec (2019).” This is no longer a mere threat but a clear and present danger.
Poland should now be considered, to borrow an expression from the financial world, as a country in default from a judicial independence point of view.
Following the “constitutionalisation” of lawlessness post 7 October 2021 via their puppet constitutional “court”, Polish authorities should now be considered as having de facto positioned Poland outside the EU’s legal order.Footnote 28
Looking beyond Poland, the consolidation of the EU’s first authoritarian member state, that is, Orban’s Hungary,Footnote 29 has simultaneously created the foundation for the progressive autocratic gangrenisation of the EU’s decision-making processes, not to forget the EU institutions themselves.
On current trajectory, it is only a matter of time before the ongoing and worsening process of democratic and rule of law backsliding eventually triggers a knock-on process of legal disintegration, a process which is bound to accelerate further due to growing instances where autocratic forces use captured constitutional “courts” to disregard EU but also constitutional and ECHR requirements relating to judicial independence but also to disregard any value, right or body of rules disliked by the local autocrat.
One may only hope the Commission and the Council will stop denying this unforgiving reality and continuing to pretend for instance that the Union is a union of democracies and that dialogue coupled with reports will help address what is a “clear and present danger” L Pech and P Wachowiec (2018) for the survival of the EU legal order.
The President of the CJEU could not have been clearer when he publicly and unprecedentedly stated on 4 November 2021 that:
“[…] it is no exaggeration to say that its foundations as a Union based on the rule of law are under threat and that the very survival of the European project in its current form is at stake. […] while the EU does not impose any particular model on the judicial systems of the Member States, it does lay down red lines. Respect for those red lines and for the rule of law in general is the foundation for mutual trust. The European project – and the solidarity among Member States that this project entails – depends on that trust K Lenaerts (2021).
One may only hope the Commission and the Council will heed this unprecedented warning before we “reach a tipping point” L Pech and P Wachowiec (2020) and see the EU’s interconnected legal ecosystem collapsing due to the accelerating destruction of the independence of the judiciary we are witnessing in Poland.
Notes
- 1.
European semester report for Poland, 27 February 2019, SWD (2019) 1020 final, p. 42: https://ec.europa.eu/info/sites/info/files/file_import/2019-european-semester-country-report-poland_en.pdf
- 2.
European Commission, Reasoned Proposal in accordance with Article 7(1) TEU regarding the rule of law situation in Poland, para. 101.
- 3.
Ibid., para 102 et seq.
- 4.
PACE, The functioning of democratic institutions in Poland, Report Doc. 15025, 6 January 2020, para. 28.
- 5.
See ECtHR judgment of 22 July 2021, Reczkowicz v. Poland, CE:ECHR:2021:0722JUD004344719; Judgment of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland, CE:ECHR:2021:1108JUD004986819; Judgment of 3 February 2022, Advance Pharma SP. Z O.O v Poland, CE:ECHR:2022:0203JUD000146920.
- 6.
See Dolińska-Ficek and Ozimek v. Poland, ibid., paras. 338 and 349.
- 7.
Ibid., para. 330.
- 8.
See W. Sadurski (2018) and Case C-619/18 Commission v. Poland (Independence of the Supreme Court), EU:C:2018:1021.
- 9.
European Commission contribution for the hearing of Poland on 11 December 2018, Council document 15197/18, 5 December 2018, p. 15. See also ECtHR judgment of 29 June 2021, Broda and Bojara v Poland, CE:ECHR:2021:1108JUD004986819 (removal by the Minister of Justice of vice-presidents of Kielce Regional Court did not respect their right of access to a court).
- 10.
See ENCJ letter to the speaker of the Poland’s Sejm and the head of the chancellery dated 8 August 2019 asking for the publication of the support lists of the judicial members of Poland’s KRS (National Council for the Judiciary) as ordered by the Supreme Administrative Court of Poland: https://www.encj.eu/node/534.
- 11.
See Statement of the Board of Polish Judges Association Iustitia concerning the words of Prime Minister Mateusz Morawiecki, 24 April 2019: https://www.iustitia.pl/en/activity/informations/3012-statement-of-the-board-of-polish-judges-association-iustitia-concerning-the-words-of-prime-minister-mateusz-morawiecki.
- 12.
Batory Foundation and European Stability Initiative, “Poland’s deepening crisis. When the rule of law dies in Europe”, 14 December 2019: https://www.esiweb.org/index.php?lang=en&id=156&document_ID=196.
- 13.
Polish government document submitted to the Council dated 28 January 2019, “Summary of actions undertaken by Poland in order to address European Commission’s recommendations concerning the reform of the Polish judiciary”, pp. 5–6. This confidential document was revealed by Oko.press on 5 February 2019: https://oko.press/rzad-do-rady-europejskiej-komisji-i-panstw-ue-arogancka-samoobrona-ujawniamy-dokument/
- 14.
See e.g. Iustitia, (2019). See also Case C-791/19, Commission v Poland (Disciplinary regime for judges), EU:C:2021:596 (holding i.a. that Poland’s new disciplinary regime allows the content of judicial decisions adopted by judges of the ordinary courts to be classified as a disciplinary offence).
- 15.
See most recently, and without being exhaustive, M. Jałoszewski, (2021) Jałoszewski, (2021) M. Jałoszewski, (2022).
- 16.
See letter from Poland’s National Prosecutor dated 16 December 2019 reproduced and translated by THEMIS: http://themis-sedziowie.eu/materials-in-english/a-letter-from-the-prosecutor-national-to-subordinate-prosecutors/.
- 17.
Opinion on the Act on the Public Prosecutor’s Office as amended, Opinion 892/2017, para. 97 (2016 Polish Act has created a system with ‘wide and unchecked powers’ which ‘is unacceptable in a state governed by the rule of law as it could open the door to arbitrariness’).
- 18.
Declaration of retired judges of the Constitutional Tribunal of 24 January 2021, Rule of Law in Poland, 25 January 2021: https://ruleoflaw.pl/declaration-of-retired-judges-of-the-constitutional-tribunal-of-24-january-2021/
- 19.
M. Jałoszewski (2020).
- 20.
- 21.
See in particular ECJ judgment of 15 July 2021 in Case C-791/19, Commission v Poland (Disciplinary regime for judges), EU:C:2021:596 and ECtHR judgment of 22 July 2021 in Reczkowicz v. Poland, CE:ECHR:2021:0722JUD004344719.
- 22.
See e.g. Council of the EU, Report on the hearing held by the Council on 22 June 2021, 9 July 2021, 103346/21, pp. 3 and 4 versus the reality of the situation outlined in L. Pech and P. Bard, The Commission’s Rule of Law Report and the EU Monitoring and Enforcement of Article 2 TEU values, Study for the European Parliament, PE 727/551, February 2022, p. 42.
- 23.
See e.g. L. Pech and S. Platon (2019) (“Not unsurprisingly, the ECJ easily came to the conclusion that the forced early retirement of Supreme Court judges is not compatible with the principle of irremovability, which is a guarantee of independence. While phrasing this delicately, the Court all but explicitly states that the Polish government has deliberately sought to mislead it when it refers to the information contained in the “explanatory memorandum to the draft New Law on the Supreme Court” and on the basis of which one may have “serious doubts as to whether the reform of the retirement age” was not in fact made “with the aim of side-lining a certain group of judges of that court”).
- 24.
See ECtHR judgment of 7 May 2021, Xero Flor w Polsce sp. z o.o. v. Poland, CE:ECHR:2021:0507JUD000490718 and European Commission, Rule of Law: Commission launches infringement procedure against Poland for violations of EU law by its Constitutional Tribunal, Press release IP/21/7070, 22 December 2021.
- 25.
Public address at the conference of the Norwegian Association of Lawyers, “Restricting Judicial Independence and the Rule of Law in Poland”, Oslo, 16 October 2019: http://www.sn.pl/aktualnosci/SiteAssets/Lists/Wydarzenia/AllItems/2019.10.16_Referat%20PPSN%20w%20Oslo%20-%20wersja%20ang.pdf.
- 26.
V-Dem Institute, Autocratization Turns Viral. Democracy Report 2021, March 2021.
- 27.
For further details, see L. Pech and P. Bard, (2022) pp. 40–41 and pp. 50–53.
- 28.
See Editorial comments, “Clear and present danger: Poland, the rule of law & primacy” (2021) 58 Common Market Law Review 1635, p. 1643: “With this ruling [of 7 October 2021], Poland de facto positions itself in the outer margins of, or even outside, the EU’s legal order.”.
- 29.
V-Dem Institute, Autocratization Changing Nature. Democracy Report 2022, March 2022, p. 25: “Yet, six of the EU’s 27 member states are autocratizing. With more than 20% of EU members autocratizing, the union is starting to face its own wave of autocratization (Fig. 16). Among the union members, Hungary and Poland are among the top autocratizers in the world over the last decade. Hungary turned into an electoral autocracy in 2018. Autocratization is now also affecting Slovenia, which is one of the top autocratizers in the world over the last three years (Fig. 15). Croatia, Czech Republic, and Greece are also newly autocratizing countries. In addition, the EU’s neighbors on the eastern flank are becoming increasingly autocratic.”.
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Pech, L. (2024). EU Fiddling While the Rule of Law Burns. In: Marques, F., Pinto de Albuquerque, P. (eds) Rule of Law in Europe. Lisbon 2021. Springer, Cham. https://doi.org/10.1007/978-3-031-61265-7_2
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