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Judges in Poland and in the Republic of Moldova must remain independent

Doc. 15204: collection of written amendments | Doc. 15204 | 25/01/2021 | Revised version

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ADraft Resolution

1The Parliamentary Assembly refers to its previous resolutions on upholding the rule of law and the situation with regard to the judiciary in the member States of the Council of Europe, in particular Resolution 1685 (2009) “Allegations of politically motivated abuses of the criminal justice system in Council of Europe member States”, Resolution 2098 (2016) and Recommendation 2087 (2016) “Judicial corruption: urgent need to implement the Assembly’s proposals” and Resolution 2188 (2017) “New threats to the rule of law in Council of Europe member States: selected examples”.
2The Assembly reiterates that respect for the rule of law is one of the core values of the Council of Europe, is closely interlinked with democracy and respect for human rights and can only be achieved in a conducive environment. Corruption and conflicts of interest are always detrimental to its full realisation.
3With regard to the Republic of Moldova, the Assembly is concerned about the proximity of part of the judiciary to the political authorities, which raises questions about the effectiveness of efforts to combat abuse of power and corruption.
4As regards Poland, the Assembly notes that many judges have been subjected to various forms of harassment in recent months. In particular, disciplinary or pre-disciplinary proceedings have been brought against judges who have spoken in public about the independence of the judiciary, criticised ongoing reforms, taken part in activities to bring public attention to issues concerning the rule of law or submitted preliminary questions to the Court of Justice of the European Union (CJEU). Others have been threatened or effectively demoted. The Assembly condemns the campaign of intimidation waged by the political authorities against certain critical judges and against the justice system in general as well as the lack of protective measures for judges subject to that campaign. Such conduct is unworthy of a democracy and a law-governed State.

25 January 2021

Tabled by Mr Arkadiusz MULARCZYK, Mr Zbigniew GIRZYŃSKI, Mr Bolesław PIECHA, Ms Iwona ARENT, Mr Daniel MILEWSKI

If adopted, amendment 3 falls.

In the draft resolution, delete paragraph 4.

Explanatory note

Neither in this paragraph nor in the whole Resolution give evidence that any judge in Poland was harassed, especially by the means of disciplinary or pre-disciplinary proceedings. There is no evidence that any disciplinary or pre-disciplinary proceeding were motivated by "political" reasons. The Rapporteur, indicating names of supposedly "harassed" judges never indicates what misdeeds they are accused of (in cases they are in fact accused)

25 January 2021

Tabled by Mr Krzysztof ŚMISZEK, Ms Kamila GASIUK-PIHOWICZ, Mr Killion MUNYAMA, Mr Marek BOROWSKI, Mr Gerardo GIOVAGNOLI, Mr Paul GAVAN, Ms Barbara NOWACKA

Falls if amendment 6 is adopted.

Votes: 66 in favor 16 against 7 abstentions

In the draft resolution, paragraph 4, second sentence, after the words:

"Court of Justice of the European Union (CJEU)”, insert the following words: “or to the Polish Supreme Court".

5Access to justice before independent and impartial courts is one of the main indicators for assessing respect for the rule of law in a given country, as pointed out in the “Rule of Law Checklist” produced by the European Commission for Democracy through Law (Venice Commission), and which was endorsed by the Assembly in Resolution 2187 (2017). This essential right is safeguarded by Article 6.1 of the European Convention on Human Rights (ETS No. 5, “the Convention”). In its case law, the European Court of Human Rights (“the Court”) has repeatedly emphasised that for a body to be considered as independent – notably of the executive and of the parties to the case – regard must be had to the manner of appointment of its members, the duration of their term of office, the existence of guarantees against outside pressures and the question of whether the body presents an appearance of independence.
6The Assembly also refers to Recommendation CM/Rec(2010)12 of the Committee of Ministers, which states that the independence of judges is an “inherent element of the rule of law, and indispensable to judges’ impartiality and to the functioning of the judicial system” and that it is “a guarantee of respect for human rights and fundamental freedoms, allowing every person to have confidence in the justice system”. Where judges consider that their independence is threatened, they should be able to have recourse to a council for the judiciary or another independent authority, or they should have effective means of remedy. Councils for the judiciary seek to safeguard the independence of the judiciary and of individual judges; not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.
7The Assembly points out that these principles have been reaffirmed in the documents of specialised Council of Europe bodies such as the Venice Commission, the Group of States against Corruption (GRECO), the European Commission for the Efficiency of Justice (CEPEJ) and the Consultative Council of European Judges (CCJE).
8The Assembly notes that its Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) also examines the issue of the independence of judges in Council of Europe member States in the course of its work and refers to its most recent resolutions – Resolution 2308 (2019) “The functioning of democratic institutions in the Republic of Moldova”, and Resolution 2316 (2020) “The functioning of democratic institutions in Poland”.
9Having regard to the findings of Resolution 2308 (2019), concerning the Republic of Moldova, which is the subject of an Assembly monitoring procedure, the Assembly is concerned that several attempts to reform the judiciary have not been successful and that corruption, including within the judiciary, remains a widespread phenomenon in this country. It takes note of the latest political changes and the political will on the part of the government to prioritise reform of the justice system, and welcomes the high-level consultations between the authorities and representatives of the Council of Europe.
10The Assembly accordingly calls on the authorities of the Republic of Moldova to:
10.1continue the reform of the judiciary, the Superior Council of Magistracy and the prosecution service in line with the recommendations of Council of Europe organs and bodies and in particular to finalise the adoption of the amendments to Article 122 of the Constitution;
10.2take the necessary steps to implement the new strategy for reform of the judiciary, taking into account the Council of Europe experts’ assessment; to this end, the Moldovan authorities should prioritise the issue of the evaluation of judges and prosecutors and make full use of the procedures already available for ensuring the integrity of the judiciary;
10.3significantly step up their efforts to combat corruption among judges and prosecutors and, to this end, implement the GRECO recommendations;
10.4continue co-operating with the Venice Commission and with the other Council of Europe organs and bodies.
11With regard to Poland, the Assembly notes that in view of the concerns which it expressed in Resolution 2316 (2020) concerning the changes in the functioning of the justice system introduced since 2015, it has opened a monitoring procedure in respect of this country. Poland is the only European Union member State currently undergoing this procedure. The Assembly remains concerned about the events that followed the adoption of the said resolution, notably the entry into force of the law of 20 December 2019 (the so-called “repressive law” or “gag law”), new disciplinary proceedings against judges and proceedings with a view to lifting their immunity, even for things done in the performance of their judicial duties, and further cases of judges being harassed.

In the draft resolution, paragraph 11, first sentence, replace the words:

"introduced since 2015”, with the following words: “introduced since late 2015".

12The Assembly notes that the concerns expressed in Resolution 2316 (2020) remain valid:

In the draft resolution, after paragraph 12, insert the following paragraph:

"The Assembly notes that the independence of the National Council of the Judiciary (NCJ) from legislative or executive power should be understood in terms of the Polish Constitution. According to its art. 187, NCJ is not a part of judicial self-government but a platform for cooperation between all three branches of the state in providing for proper functioning of the judiciary. The Assembly recognises that the current model of appointing NCJ members was held conforming to art. 187 of the Constitution by the Constitutional Tribunal in its judgment K 12/18 of 25 March 2019."

Explanatory note

New paragraph sets out the necessary constitutional context for considering systemic position of the NCJ and its constitutionally-granted independence.

12.1the “constitutional crisis” has not been resolved and the Constitutional Tribunal seems to be firmly under the control of the ruling authorities, preventing it from being an impartial and independent arbiter of constitutionality and the rule of law;

25 January 2021

Tabled by Mr Arkadiusz MULARCZYK, Mr Zbigniew GIRZYŃSKI, Mr Bolesław PIECHA, Ms Iwona ARENT, Mr Daniel MILEWSKI

If adopted, amendment 8 falls.

In the draft resolution, delete paragraph 12.1.

Explanatory note

Allegations regarding so-called lack of impartiality and independence of the Constitutional Tribunal have no factual basis. The members of the Constitutional Tribunal are elected in the same way since 1986 and nothing changed in recent years. This way of electing members of Constitutional Tribunal was never contested before.

25 January 2021

Tabled by Mr Arkadiusz MULARCZYK, Mr Zbigniew GIRZYŃSKI, Mr Bolesław PIECHA, Ms Iwona ARENT, Mr Daniel MILEWSKI

Falls if amendment 7 is adopted.

In the draft resolution, replace paragraph 12.1 with the following paragraph:

"Some politicians claim that the 'constitutional crisis' has not been resolved and the Constitutional Tribunal seems to be firmly under the control of the ruling authorities, preventing it from being an impartial and independent arbiter of constitutionality and the rule of law."

Explanatory note

The statement proposed in the draft report has no substantive justification and is seemingly the result of political opinion.

12.2given the current composition of the National Council of the Judiciary (NCJ) and the judgment handed down by the CJEU on 19 November 2019, the NCJ can no longer be regarded as an autonomous body independent of the legislature and the executive;

In the draft resolution, delete paragraph 12.2.

Explanatory note

There is no rule in Polish constitutional law that NCJ members who are judges could be only elected by other judges. It cannot be also recognized as a European standard. Also in Spain the NCJ members are elected by the parliament and in some European countries (eg. Germany, Austria, Scandinavian countries) there are no judiciary councils at all and the judges are nominated by the political bodies.

12.3the Disciplinary Chamber of the Supreme Court does not meet the requirements of independence and impartiality set out in the CJEU judgment of 19 November 2019, as the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors; the same reasoning may be applied to the Supreme Court’s Chamber of Extraordinary Control and Public Affairs;

In the draft resolution, paragraph 12.3, delete the following words:

"the same reasoning may be applied to the Supreme Court's Chamber of Extraordinary Control and Public Affairs;"

Explanatory note

This statement is false. The CJEU judgment did not apply to the SC Chamber of Extraordinary Control and Public Affairs. The status of this Chamber does not differ from that of the "old" Chambers of the Supreme Court and is by no means similar to that of the Disciplinary Chamber.

12.4the powers of the Minister of Justice with respect to the appointment and dismissal of court presidents, disciplinary proceedings against judges and the internal organisation of courts, remain excessive, particularly in view of his powers as Prosecutor General.

In the draft resolution, paragraph 12.4, insert the following sentence at the end of the paragraph:

"The same Prosecutor General/Minister of Justice directly oversees the Internal Affairs Department of the National Public Prosecutor’s Office that has prosecuted judges who have taken positions in defence of European law, with those prosecutions often being based on speculation and little evidence."

13The Assembly also remains concerned about the reaction of the Polish authorities to the Supreme Court resolution of 23 January 2020 and calls on the Polish authorities to fully abide by this resolution. It is concerned about the legal chaos which the “reform” of the judiciary has meant for citizens in Poland and abroad affected by the decisions of the Polish courts, whose validity has been called into question by the serious doubts over the legitimacy of the procedure for appointing certain judges, including judges of the Supreme Court and the Constitutional Court. It considers that the entry into force of the “gag law” will deter judges from exercising their rights to respect for private life and freedom of expression and association, as enshrined in Articles 8, 10 and 11 of the Convention respectively, and may prevent them from raising doubts as to whether the composition of a court might render proceedings void on grounds of nullity.

In the draft resolution, paragraph 13, delete the following words:

"also remains concemed about the reaction of the Polish authorities to the Supreme Court resolution of 23 January 2020 and calls on the Polish authorities to fully abide by this resolution."

Explanatory note

This sentence is contrary to Art. 190 of the Polish Constitution: "judgments of the Constitutional Tribunal shall be binding and final". The Constitutional Tribunal held in its judgment U 2/20 that the SC resolution is unconstitutional and inconsistent with art. 6 of the ECHR.

25 January 2021

Tabled by Mr Arkadiusz MULARCZYK, Mr Zbigniew GIRZYŃSKI, Mr Bolesław PIECHA, Ms Iwona ARENT, Mr Daniel MILEWSKI

If adopted, amendment 4 falls.

In the draft resolution, paragraph 13, in the second sentence, delete the following words:

"by the serious doubts over the legitimacy of the procedure for appointing certain judges, including judges of the Supreme Court and the Constitutional Court".

Explanatory note

There was no breach, nor misapplication of any of statutory rules applicable in the procedure of appointing SC judges in 2018-2019. Moreover, then-appointed judge Ewa Stefanska had been already recommended for nomination to the SC also by the former NCJ.

25 January 2021

Tabled by Mr Krzysztof ŚMISZEK, Ms Kamila GASIUK-PIHOWICZ, Mr Killion MUNYAMA, Mr Marek BOROWSKI, Mr Gerardo GIOVAGNOLI, Mr Paul GAVAN, Ms Barbara NOWACKA

Falls if amendment 11 is adopted.

Votes: 78 in favor 19 against 17 abstentions

In the draft resolution, paragraph 13, replace the words:

"Supreme Court and the Constitutional Court", with the following words: "Constitutional Tribunal and the Supreme Court, as well as the appointment of the latter’s First President.".

25 January 2021

Tabled by Mr Arkadiusz MULARCZYK, Mr Zbigniew GIRZYŃSKI, Mr Bolesław PIECHA, Ms Iwona ARENT, Mr Daniel MILEWSKI

Votes: 26 in favor 78 against 12 abstentions

In the draft resolution, paragraph 13, insert the following sentence at the end of the paragraph:

"It must be noted, however, that no legal provision determining appointment of judges was broken".

Explanatory note

It is a statement of fact. There was no breach, nor misapplication of any of statutory rules applicable in the procedure of appointing SC judges in 2018-2019. Moreover, then-appointed judge Ewa Stefanska had been already recommended for nomination to the SC also by the former NCJ.

25 January 2021

Tabled by Mr Arkadiusz MULARCZYK, Mr Zbigniew GIRZYŃSKI, Mr Bolesław PIECHA, Ms Iwona ARENT, Mr Daniel MILEWSKI

Votes: 73 in favor 24 against 12 abstentions

In the draft resolution, paragraph 13, replace the words:

"gag-law" with the following words: "the Law of 20 December 2019"

Explanatory note

Applying a stigmatising label "gag law" used in Poland for political struggle, demonstrates bias and lack of impartiality.

25 January 2021

Tabled by Mr Arkadiusz MULARCZYK, Mr Zbigniew GIRZYŃSKI, Mr Bolesław PIECHA, Ms Iwona ARENT, Mr Daniel MILEWSKI

Votes: 28 in favor 79 against 7 abstentions

In the draft resolution, paragraph 13, in the third sentence, delete the following words:

"will deter judges from exercising their rights to respect for private life and freedom of expression and association, as enshrined in Articles 8, 10 and 11 of the Convention respectively,"

Explanatory note

The law amending SC Act has introduced neither additional limitation to the judges' freedom of expression, nor new types of disciplinary offences that had been previously unknown to Polish law.

14Accordingly, the Assembly calls on the Polish authorities to:
14.1refrain from applying the provisions of the Law of 20 December 2019;

25 January 2021

Tabled by Mr Arkadiusz MULARCZYK, Mr Zbigniew GIRZYŃSKI, Mr Bolesław PIECHA, Ms Iwona ARENT, Mr Daniel MILEWSKI

Votes: 25 in favor 74 against 15 abstentions

In the draft resolution, delete paragraph 14.1.

Explanatory note

The Polish authorities must not refrain from applying universally binding law that has not been formally held unconstitutional.

14.2review the changes made to the functioning of the Constitutional Tribunal and the ordinary justice system in the light of Council of Europe standards relating to the rule of law, democracy and human rights; following the findings of the Venice Commission included in its Opinion No. 977/2020 of 22 June 2020 concerning in particular the amendments to the Law on Ordinary Courts introduced since 2017, it would be advisable to:
14.2.1revert to the previous system of electing judicial members of the National Council of the Judiciary or adopt a reform of the justice system which would effectively ensure its autonomy from the political power;

25 January 2021

Tabled by Mr Arkadiusz MULARCZYK, Mr Zbigniew GIRZYŃSKI, Mr Bolesław PIECHA, Ms Iwona ARENT, Mr Daniel MILEWSKI

Votes: 21 in favor 75 against 16 abstentions

In the draft resolution, delete paragraph 14.2.1.

Explanatory note

This statement has no factual basis. The composition of the NCJ is contrary neither to the Polish Constitution nor to European standards. ln the resolution there is no evidence that judge-members of NCJ are not independent.

14.2.2review the composition, internal structure and powers of the Disciplinary Chamber and the Extraordinary Control and Public Affairs Chamber of the Supreme Court;

25 January 2021

Tabled by Mr Arkadiusz MULARCZYK, Mr Zbigniew GIRZYŃSKI, Mr Bolesław PIECHA, Ms Iwona ARENT, Mr Daniel MILEWSKI

Votes: 20 in favor 77 against 15 abstentions

In the draft resolution, paragraph 14.2.2, delete the following words:

"and the Extraordinary Control and Public Affairs Chamber of the Supreme Court"

Explanatory note

There is a substantial difference between the status of the Disciplinary Chamber and the Chamber of Extraordinary Control. The judgment of the CJEU does not apply to the Extraordinary Control Chamber.

14.2.3review the procedure for the election of the first President of the Supreme Court;

25 January 2021

Tabled by Mr Arkadiusz MULARCZYK, Mr Zbigniew GIRZYŃSKI, Mr Bolesław PIECHA, Ms Iwona ARENT, Mr Daniel MILEWSKI

If adopted, amendment 5 falls.

Votes: 21 in favor 76 against 16 abstentions

In the draft resolution, delete paragraph 14.2.3.

Explanatory note

The Resolution fails to address the fact that the indicated situation regarding elections of the President of the Supreme Court is as probable to happen under the Act on Supreme Court of 2017 as it was under the previous regulations. Theoretically, the model, where the President of the Republic was provided with the list of two candidates also could result in a situation where one of them accumulated very high number of votes and the other one received only one vote. lt is difficult to establish the reasons why the Rapporteur is against the protection of minorities. There are no European standards, which would promote deprivation minority groups from having influence on selection procedure.

In the draft resolution, replace paragraph 14.2.3 with the following paragraph:

"review and repeat the procedure for the election of the first President of the Supreme Court so that it takes into account the recommendations contained in the Venice Commission’s Opinion No. 904/2017 of 11 December 2017."

14.2.4reinstate the powers of the assemblies of judges with respect to the appointment, promotion and dismissal of judges;

25 January 2021

Tabled by Mr Arkadiusz MULARCZYK, Mr Zbigniew GIRZYŃSKI, Mr Bolesław PIECHA, Ms Iwona ARENT, Mr Daniel MILEWSKI

Votes: 20 in favor 79 against 14 abstentions

In the draft resolution, delete paragraph 14.2.4.

Explanatory note

The assemblies of judges have the same power in respect of appointment, promotion and dismissal of judges as they have before. lt was and still is only an consultative power and the opinions of the assemblies was never binding for NCJ. The only difference is that now the assemblies cannot obstruct the proceedings by abstaining from adopting the resolution.

14.3refrain from taking any legislative or administrative measures or other initiatives which might pose a risk to the rule of law and, in particular, to the independence of the judiciary;
14.4co-operate fully with Council of Europe organs and bodies, including the Venice Commission, and with the institutions of the European Union, on issues related to reform of the judiciary;
14.5institute a constructive and sustainable dialogue on justice reform with all stakeholders, including opposition parties, representatives of the judiciary, bar associations, civil society and academic experts.
15The Assembly highlights and recalls the judgments handed down by the CJEU in the cases concerning the early retirement of Supreme Court judges (C-619/18) and ordinary court judges (C-192/18) and the legitimacy of the Disciplinary Chamber of the Supreme Court (C-585, C-624 and C-625/18), which have made it possible to remedy certain violations of the principles of judicial independence. In particular, it notes with satisfaction that, following the CJEU’s judgment of 24 June 2019 (case C-619/18), the judges of the Supreme Court were reinstated in their posts, and calls on the authorities to comply fully and as soon as possible with the other two judgments handed down by the CJEU and with its order of 8 April 2020 (case C-791/19) on provisional measures mainly concerning the suspension of the application of the relevant provisions on the Disciplinary Chamber of the Supreme Court.
16The Assembly refers to its Resolution 2178 (2017) on the implementation of judgments of the European Court of Human Rights and calls on Poland and the Republic of Moldova to fully implement these judgments and to give political priority to those judgments which reveal a pressing need for wide-ranging reform of the judicial system. As regards Poland, this is valid despite the progress it has realised in the implementation of the Court’s judgments concerning excessive length of judicial proceedings.
17Fully aware of the diversity of legal systems and cultures in Council of Europe member States, the Assembly calls on the Moldovan and Polish authorities to promote a political and legal culture conducive to the implementation of the rule of law and in particular to the independence of the judiciary, in law and in practice.