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Council of Europe reprimands Poland's PiS

April 2, 2018

The Council of Europe has demanded that Poland change how it appoints judges. That may be too little, too late: A new law seems intended to do away with the judiciary's independence, DW's Bernd Riegert reports.

Poland's Supreme Court
Image: picture alliance/NurPhoto/M. Wlodarczyk

Poland's controversial changes to the judiciary were set to come into effect on Monday despite efforts against them at the EU level. Days before the changes were to be implemented, the Council of Europe's Group of States Against Corruption (GRECO) released a 15-page report strongly criticizing the plans. The report calls the changes — which target Poland's National Council of the Judiciary, the Supreme Court and laws governing lower courts — a "serious violation of anti-corruption standards." The changes allow lawmakers and politicians to decide on judicial appointments and dismissals, which would compromise judicial independence in Poland, the report concludes.

The GRECO report calls for at least half of Poland's judicial postings to be agreed to by the judges themselves and not only assigned by parliament. The report goes on to criticize early retirement for judges as a way for politicians to unofficially dismiss them. It further assails the influence that the president has on the length of judicial terms, as well as the outsize power of the justice minister, Poland's highest prosecutor.

The Council of Europe filed a summary proceeding in December after Poland's government failed to respond to the comments and concerns made by international bodies. It is GRECO's first such filing, a spokesman said. The Council of Europe is separate from the EU. Founded in 1949 and based in Strasbourg, France, it oversees human rights. Poland is one of the council's 47 members.

Protests in Warsaw
Poles have protested ever since the PiS's proposals were announced Image: Getty Images/AFP/J. Skarzynski

A 'systematic threat'

The ruling right-wing nationalist Law and Justice (PiS) party has been restructuring Poland's judiciary since 2015. Top officials say the measures are necessary because judges were installed either by the previous government or are holdovers from the communist period. The Council of Europe's Venice Commission, which is responsible for overseeing constitutional law, rejected the changes, however, charging that they would threaten rule of law and separation of powers. Poland's government requested an expert assessment and then promptly ignored the findings. The European Union has repeatedly called on Poland to change the measures before implementing them.

Poland's government reacted in December, following a formal EU request to trigger Article 7 of the Treaty of Lisbon. The clause allows the European Union to suspend a member state for violating EU rules. Prime Minister Mateusz Morawiecki went to Brussels twice thereafter to discuss the proposed judicial changes, and his ambassador to the European Union said Poland was interested in "improvements." The European Commission confirmed receipt of the suggested changes, which are currently being reviewed, and will announce by mid-April whether they sufficiently avoid a "systematic threat to rule of law." Then comes the decision, requiring a four-fifths majority, on whether or not to proceed with Article 7, a complicated procedure that has never been applied.

Poland's reforms have come under fire from not only the EU and the council, but also the United Nations, the Organization for Security and Co-operation in Europe and the European Association of Judges. The government has so far appeared unfazed by the criticism, despite the European Commission's threats to cut off subsidies if constitutional criteria are not fulfilled. The catch to that threat is that Poland would have to agree to the rule in the course of EU budget negotiations.

Bernd Riegert
Bernd Riegert Senior European correspondent in Brussels with a focus on people and politics in the European Union