Poland: Draft Law Threatens Supreme Court

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(Budapest) – A bill being rushed through Poland’s Parliament would pave the way for government control of the Supreme Court, Human Rights Watch said today. The bill would terminate the mandate of existing Supreme Court judges, except those chosen by the government, and lead to a court in which all judges were effectively selected by the government. Parliament is set to vote on the bill on July 20, 2017.

Under the draft law, the National Judicial Council (NJC) will select new judges. A July 12 law effectively ensures that the council’s membership would predominantly consist of government appointees. The draft bill also states that the mandate of the first president of the Supreme Court, the most senior member on the bench, would expire when the incumbent turns 65. The current first president will turn 65 in November.

“This is a blatant attack by Poland’s government on the independence of the judiciary and the rule of law,” said Lydia Gall, Balkans and Eastern Europe researcher at Human Rights Watch. “Poland’s parliament should vote down this deeply flawed bill, which runs counter to European Union and Council of Europe standards.”

The Supreme Court plays a vital role in Poland. It supervises the work of lower courts, confirms the validity of parliamentary and presidential elections, and issues opinions on draft legislation. It has assumed greater importance since 2016 because the governing party has deliberately weakened the country’s highest court, the Constitutional Tribunal, and undermined its ability to review the constitutionality of laws. It appears that the ruling party is trying to do the same to the Supreme Court, Human Rights Watch said.

The draft law in its current state would call into question the independence of newly appointed judges and thereby undermine the Supreme Court, Human Rights Watch said.

The law adopted on July 12 effectively gives the government control over judicial appointments. It gives parliament, which is controlled by the ruling party, the power to dismiss current members of the National Judicial Council and appoint 22 of its 25 members. The council is responsible for appointing judges, including Supreme Court judges, and safeguarding the independence of courts and judges. The law undermines the separation of powers between the executive and judiciary and poses a serious threat to the independence of Poland’s justice system.

The moves have faced some opposition in parliament. During a fast-track first and second reading of the draft Supreme Court law on July 18, President Andrzej Duda, who usually backs the ruling party, submitted amendments to the July 12 Act that would require a three-fifths majority in parliament to appoint judges. The change would make it more difficult for the ruling party to push through Supreme Court appointments. The government said on July 18 that it planned to include amendments reflecting Duda’s to the draft law on Supreme Court. A parliamentary commission is reviewing the draft law ahead of the third and final reading and vote.

Since it came to power in October 2015, the ruling Law and Justice Party (PiS) government has repeatedly undermined the rule of law. The Constitutional Tribunal has been a particular target. The governing majority failed to recognize the appointment of several duly appointed judges before the current government took power and passed laws that extended government influence over the tribunal and undermined its effectiveness and independence. The government has also refused to implement several court rulings that it viewed as unfavorable.

The government has also passed laws that interfere with media freedom, restrict freedom of assembly and association and sexual and reproductive rights, and adopted a problematic counterterrorism law.

The Polish government’s attack on the rule of law has drawn wide condemnation from the European Commission, the European Parliament, the Council of Europe’s human rights commissioner and secretary general, and other international bodies.

The European Commission in January 2016 triggered its 2014 rule of law mechanism against Poland, the first time it had used a procedure intended to address systematic threats to rule of law in member states. It includes three stages: a Commission assessment, dialogue with the member state, and recommendations and monitoring a member state’s follow up of the Commission’s recommendations. The European Commission issued recommendations to Poland for reforms to the Constitutional Tribunal in June 2016, which the Polish government has largely ignored. But the Commission has yet to take meaningful action in response.

On July 19, the Commission first vice-president, Frans Timmermans, indicated that the Commission was planning infringement proceedings if the law were adopted. He said that the Commission was also considering proceedings under article 7 of the EU Treaty that if accepted by the Council of EU member states could lead to the suspension of Poland’s voting rights.

The Council of Europe’s Venice Commission, a constitutional law expert advisory body, published opinions in March and October 2016 raising serious concerns about Poland’s Constitutional Tribunal Act. The Polish government has ignored the concerns. On July 18, the Council’s secretary general, Thorbjorn Jagland, sent a letter to the speaker of Poland's parliament expressing concern about the draft law on the Supreme Court and the National Judicial Council Act. He urged the Polish parliament to uphold Council of Europe standards.

In April, the Council of Europe human rights commissioner, Nils Muiznieks, said the Polish parliament should reject amendments to the National Judicial Council Act because they would compromise judicial independence. The Polish government ignored these calls.

The disturbing developments in Poland bear a striking resemblance to similar efforts by the Hungarian government to weaken its Constitutional Court, forcibly retire judges, and assert greater control over judicial appointments. The weak responses, and at times complete lack of responses, to developments in Hungary and Poland by other EU member states sends a signal that undermining the rule of law and flouting EU values carries few consequences, Human Rights Watch said.

“The European Commission has a responsibility to protect compliance with EU treaty obligations and use every tool at its disposal to deal with attacks on core rights in Poland, and member states have a responsibility to support those efforts,” Gall said. “Turning a blind eye to Poland’s efforts to undermine these rights would potentially encourage further rights violations that would be detrimental to people in Poland and to the EU as whole.”