Controversial Laws Around the World: Poland's Dwindling Independent Judges
- Megan Leanne Smith.
- Apr 16, 2021
- 4 min read
As law students, we are made fully aware of how important the principle of the rule of law is. In short, the principle entails that no person is above the law. This principle is seen as the foundation for a democratic society and is enshrined in Article 2 of the Treaty on European Union. The European Commission together with the Member States, are responsible for guaranteeing the rule of law as a fundamental value and for making sure that EU laws, values and principles are respected. One member state which has been neglecting this duty to guarantee the rule of law as a fundamental value is Poland. Poland’s law and Justice (PiS) party which took power in 2015, have started implementing laws which overhaul and undermine the judiciary. This disregard by Poland for the principle of the rule of law has sparked the EU to take action against them. This action against Poland is an important battle for the EU in order to maintain Poland’s judicial independence.
Poland's Judicial Reform History
Poland’s PiS party has implemented numerous judicial reforms over the years that it has been in power. Many of these judicial reforms have been questioned and scrutinised by the European Commission as most of them go against the rule of law principle. Below is a comprehensive timeline of all the reforms that the Poland government has created and the subsequent opposition that they have encountered.
What Does This Controversial Law Entail?
A new 2019 judicial law has come into force in Poland in February 2020 which prevents Polish judges from referring matters of law to the European Court of Justice and which creates a national body to rule on judges’ independence. In addition to this, the new law establishes a “disciplinary chamber” which will oversee judges on the country’s supreme court. This disciplinary chamber will have the power to lift judges’ immunity from criminal prosecution, temporarily suspend judges from office and to reduce the judges’ salaries. The disciplinary chamber (which is composed mainly of government loyalists) has suspended three Supreme Court judges so far, due to the judges criticizing the justice ministry policies. Pawel Juszczyszyn, a district court judge in the northern city of Olsztyn, has been silenced for his criticism through being suspended and through a salary cut of 40%. Juszczyszyn has argued that Poland’s newly appointed judges and judges’ associations are illegal and that the court does not conform to European Law.
These new judicial reforms which Poland has implemented has sparked much debate and controversy. Leaders of the main political groupings in the European parliament sent a letter to Ursula von der Leyen, the European Commission president, which highlighted the deep concern for the new reforms by stating that the erosion of the rule of law in Poland “may eventually end in the collapse of the Union”. EU Justice Commissioner, Didier Reynders, has also highlighted his dissatisfaction with the new law by stating that it “undermines judicial independence and is incompatible with the primacy of EU law”.
The European Commission has subsequently stated that they will be taking Poland to the bloc’s highest court over the newly implemented laws. The European Commission has based their findings on several elements of the newly implemented Polish law which violates EU law. Vera Jourova, a Czech member of the European commission, has highlighted that the Polish law is a violation of EU law in that “the disciplinary regime against judges can be used for political control of the content of judicial decisions”. The Polish government in opposition to the above criticism has stated that the reforms are necessary to make courts more efficient and to remove corruption.
Consequences of New Reforms
The European Commission has demonstrated their unhappiness with the judicial reforms by stating that “the mere prospect for judges of having to face proceedings before a body whose independence is not guaranteed creates a chilling effect for judges”. One judge that has already felt the chilling effects of the new reforms is Judge Igor Tuleya. Judge Igor Tuleya was subject to a salary cut of 25% and was subsequently suspended by the Disciplinary Chamber in November. Tuleya was the third judge to be suspended by the Disciplinary Chamber on account of criticizing the new Polish Justice Ministry policies. Based on his involvement and participation in the fight for reform against these new policies, Tuyela has become a symbol for the struggle for judicial independence in Poland. Marek Safjan, a judge for the Court of Justice of the European Union, has shown his support for Tuleya by stating that the disciplinary chamber’s decision regarding Tuleya is “a direct and unacceptable encroachment into the sphere of judicial independence”. The only way to combat these judicial reforms that PiS is instituting is to bring these cases before the Court of Justice of the European Union or the European Court for Human Rights as Poland’s most powerful court (the Constitutional Tribunal), itself “does not fulfil the requirements of independence and is also not properly established”. It will be interesting to see how further developments in the country pan out, and if the rule of law principle survives.
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