Judges in Poland and in the Republic of Moldova must remain independent
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 26 January 2021 (3rd Sitting) (see Doc. 15204, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Andrea Orlando). Text
adopted by the Assembly on 26 January 2021 (3rd Sitting).
1. The 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) on 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”.
2. The Assembly reiterates that respect for the rule of law is
one of the core values of the Council of Europe, that it 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.
3. With regard to the Republic of Moldova, the Assembly is concerned
about the proximity of part of the judiciary to the political power
which raises questions about the effectiveness of efforts to combat
abuse of power and corruption.
4. As 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 raise public awareness of issues concerning
the rule of law and/or submitted preliminary questions to the Court
of Justice of the European Union (CJEU) or to the Polish Supreme
Court. Some judges have been threatened or effectively demoted.
The Assembly condemns the campaign of intimidation waged by the
political power against certain critical judges and against the
judiciary in general, as well as the lack of protective measures
for judges who are the subjects of that campaign. Such conduct is unworthy
of a democracy and a law-governed State.
5. Access 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 guaranteed 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 judicial body to be considered as independent
– notably with regard to the executive and the parties to the case
– it is necessary to examine 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.
6. The Assembly also refers to Recommendation CM/Rec(2010)12
of the Committee of Ministers to member States on judges: independence,
efficiency and responsibilities, 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.
7. The 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).
8. The 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) on
the functioning of democratic institutions in the Republic of Moldova
and
Resolution 2316 (2020) on
the functioning of democratic institutions in Poland.
9. Having 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 circles of 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 justice
reform and welcomes the high-level consultations between the authorities
and representatives of the Council of Europe.
10. The Assembly accordingly calls on the authorities of the Republic
of Moldova to:
10.1 continue 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;
10.2 take the necessary steps to implement the new strategy
for reform of the judiciary, taking into account the analysis by
Council of Europe experts; 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;
10.3 significantly step up their efforts to combat corruption
among judges and prosecutors and, to this end, implement the GRECO
recommendations;
10.4 continue co-operating with the Venice Commission and with
the other Council of Europe bodies and organs.
11. With 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 late 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, new disciplinary
proceedings against judges and proceedings with a view to lifting
their immunity, even for actions taken in the performance of their
judicial duties, and further cases of judges being harassed.
12. The Assembly notes that the concerns expressed in
Resolution 2316 (2020) remain
valid:
12.1 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;
12.2 given 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;
12.3 the 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;
12.4 the 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.
13. The 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 litigants 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 Constitutional
Tribunal and the Supreme Court, as well as the appointment of the
latter’s first president. It considers that the entry into force
of the law of 20 December 2019 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.
14. Accordingly, the Assembly calls on the Polish authorities
to:
14.1 refrain from applying the
provisions of the law of 20 December 2019;
14.2 review 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 the Common Courts introduced since 2017, it
would be advisable to:
14.2.1 revert 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;
14.2.2 review the composition, internal structure and powers
of the Disciplinary Chamber and the Extraordinary Control and Public
Affairs Chamber of the Supreme Court;
14.2.3 review the procedure for the election of the First President
of the Supreme Court;
14.2.4 reinstate the powers of the assemblies of judges with
respect to the appointment, promotion and dismissal of judges;
14.3 refrain 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;
14.4 co-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 justice reform;
14.5 institute 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.
15. The 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-585/18, C-624/18 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.
16. The 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 the excessive
length of judicial proceedings.
17. Fully 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.
