The Law and Justice government argues that the reforms introduced since 2015 do not differ from solutions in place elsewhere. But PiS has politicised the National Council of the Judiciary, subjugated the Constitutional Tribunal and is trying to take over the Supreme Court. Every particular change is troubling, but all the more so when viewed in its entirety
In a statement dated of 2 September 2019, after a meeting with Minister of Justice Zbigniew Ziobro, the Dutch Minister for Legal Protection Sander Dekker promised further support for organizations fighting for the rule of law in Poland.
“Changes in the judiciary are a violation of constitutional democracy in Poland. The Netherlands cannot stand aside because the situation is getting worse,” emphasized Dekker.
Publikujemy teksty po angielsku o praworządności w Polsce, aby pełna informacja o sytuacji w naszym kraju docierała do czytelników i czytelniczek za granicą. Udostępnij znajomym mieszkającym poza Polską. #RuleOfLawPL
Dziś angielska wersja tekstu “Ziobro atakuje holenderskiego ministra: krytykował nas za „całokształt”, jak w PRL. Tak, i miał rację“. Maria Pankowska analizuje w niej argumenty, których Zbigniew Ziobro miał użyć w rozmowie z holenderskim ministrem ds. ochrony prawnej Sandrem Dekkerem po tym, jak Holender obiecał wspierać instytucje walczące o praworządność w Polsce.
In response, Ziobro depicts Dekker as incompetent and fanatical: “He was not able to mention any European norm that the Polish law currently in force could violate. Asked several times by the Polish side for examples of such regulations, he ultimately stated that he questions the entirety of Polish legal solutions.”
We were not present at the meeting, so we can’t definitively say whether this was the case. However, we can analyse Ziobro’s arguments on an ad hoc basis, which, according to his own account, he used in his conversation with Dekker. They make up a narrative that PiS repeats like a mantra.
AG Tanchev strongly defends judges’ right to ask prejudicial questions directly to CJEU
28 September 2019
Equal before the law
“Poland is an equal member of the EU and cannot be treated worse in the discussion over the organisation of the justice system. One of the cornerstones of the rule of law is equality of EU Member States in the face of EU law and EU institutions,” writes Ziobro in a statement.
Poland is indeed a full member of the EU and has the same rights as the other Member States. But it also has the same obligations. Among other things, we are bound by respect for the values of the EU as set out in Article 2 of the Treaty on European Union. The rule of law is one of them.
And the “reforms” of the judiciary by Ziobro, aimed at politicising the justice system, are in conflict with this value.
If Poland is a full member of the EU, it must be prepared for the EU to notice and react to this. To this end, the treaties include defence mechanisms – Article 7 TEU and Article 258 of the Treaty on the Functioning of the EU. Both have been used by the European Commission to counter the Law and Justice (PiS) government. Everything within the boundaries of the law that applies to Poland – just as it does to everyone else.
Ziobro is being disingenuous by saying that the polemic with the EU and the Dutch minister concern the “organisation of the justice system.”
This is not the case. Courts can be set up in any manner, provided that they remain independent. This is because Member States must guarantee citizens the right to an effective remedy and an impartial court under Article 19 TEU and Article 47 of the Charter of Fundamental Rights.
Dekker himself has every reason to be interested in the Polish reforms, because European courts act as an interconnected system and in accordance with the principle of mutual trust. Doubts about their independence in one country can shatter this delicate balance.
We already know what its absence means in practice. Over the past year, successive courts have refused to immediately surrender to Poland citizens sought under a European Arrest Warrant. What was previously only been a formality now requires review and new procedures. Dutch courts have twice refused to send Polish citizens back.
On the one hand, Ziobro stresses that EU law applies to Poland in the same way as to other EU Member States. On the other hand, he has repeatedly claimed that the EU cannot impose anything on Poland. The Law and Justice party wants to be protected by the EU, but does not intend to do anything to protect the EU.
Two European Unions?
“The European Union was founded […] on the basis of an idea that rejected the division of Europe into better and worse countries. […] We cannot […] return to a policy in which, from a position of superiority towards a Member State presented by other countries, it is treated unequally and its achievements or legal culture are subjected to depreciation,” Ziobro explains to Dekker.
Let’s start at the beginning. Yes – all EU countries (at least in theory) are equal. Yes – all EU citizens (at least in theory) have the same rights. Respect for the national specificity of individual countries is obligatory.
All on condition that these countries do not violate democratic standards – the foundation of the EU community.
When Poland joined the EU in 2004, it had to meet the so-called Copenhagen criteria. It had to prove, among other things, that it had “stable democratic institutions fulfilling the ideal of the rule of law” and declare its “willingness to accept the EU legal and institutional acquis”.
In 2018, we would have had problems with meeting most of the criteria. Not only through the “reforms” of Law and Justice, which destabilized the institutions of the justice system. This is also due to the lack of a clear willingness of the government to accept the EU acquis and respect EU institutions.
Thus, Minister Dekker is not deprecating the Polish “acquis” or “legal culture”, but only the effects of the “reforms” of the Law and Justice government, which put Poland on the margins of the EU. When we joined the EU, we could count on equal treatment. We have made ourselves a second-class country.
What about Spain?
“Minister Zbigniew Ziobro pointed out that the aim of the changes introduced in Poland is to democratize the system for selecting judges in a manner similar to another European country – Spain,” he wrote in a Ministry statement.
The fact that Ziobro used the example of Spain comes as no surprise – Law and Justice politicians use it whenever it is necessary to defend their attack on the courts.
The similarities between Law and Justice legislation and the Spanish system are, however, merely superficial:
- judges in Spain are nominated and selected in a different mode
- there are stricter requirements for candidates
- the Spanish parliament selects members of the Judicial Council by a 3/5 majority, while the Polish Sejm does so by simple majority
Moreover, Spain is not a very good example to follow. In a 2016 report by the European Network of Councils for the Judiciary (ENCJ), the Spanish system was ranked at the bottom in Europe in terms of judicial independence.
What about the Germans?
Like usual, after the “Spanish” argument the time came for the “German” argument.
“Minister Dekker could not explain why German citizens were allowed to influence the personnel of German courts through democratic elections and why Polish citizens should be deprived of this right,” the Ziobro statement reads.
The German system is indeed one of the most politicised in Europe. And yet in many ways it is less controversial than the “reforms” by Law and Justice. Long tradition, the presence of the opposition on the recruitment committee, the opinion of judges and good practice particularly favour the German system.
In Germany, for example, it is unthinkable that a candidate without experience and competence could be appointed to adjudicate in a court.
Ziobro jokes that the Dutch minister criticizes Poland “in its entirety” instead of “specifics.” The Law and Justice party politicized the National Council of the Judiciary. It subordinated the Constitutional Tribunal. It is trying to take over the Supreme Court. It is persecuting judges who dare to criticise these ideas. And there remains the matter of the purge in the public prosecutor service.
[translated by Matthew La Fontaine]