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Committee urges Poland to revisit reforms which ‘severely damage’ judicial independence and the rule of law

Reforms of the judiciary and justice system in Poland “cumulatively undermine and severely damage the independence of the judiciary and the rule of law” and should be revisited to bring them into line with Council of Europe recommendations, PACE’s Monitoring Committee has said.

In a draft resolution made public today, based on a report by Azadeh Rojhan Gustafsson (Sweden, SOC) and Pieter Omtzigt (Netherlands, EPP/CD), the committee said the judicial system was now “vulnerable to political interference and attempts to bring it under the political control of the executive, which challenges the very principles of a democratic state governed by the rule of law”.

Referring to the crisis over the composition of the Constitutional Court, the committee said: “No democratic government that respects the rule of law can selectively ignore court decisions it does not like, especially those of the Constitutional Court. The full and unconditional implementation of all Constitutional Court decisions by the authorities, including with regard to the composition of the Constitutional Court itself, should be the cornerstone of the resolution of the crisis.”

The committee called on the authorities to “revisit the total reform package for the judiciary and amend the relevant legislation and practice in line with Council of Europe recommendations”. In particular it called on the Polish authorities to:

• urgently separate the functions of Justice Minister and Prosecutor General and introduce into the law “sufficient safeguards against abuse and politicisation of the prosecution service”;

• reinstate the direct election, by their peers, of the judge members of the National Council of the Judiciary;

• reduce the “excessive and discretionary” new powers of the Justice Minister over the justice system and judiciary;

• address the issue of a possible so-called “extraordinary appeal”, which is of serious concern, and the composition and appointment of the members of the disciplinary and extraordinary appeals chambers of the Supreme Court;

• set up an independent public inquiry into reports of politically-motivated “smear campaigns” against judges and prosecutors opposed to the reforms.

The committee said it “recognises the challenges” faced by the Polish justice system and judiciary, and welcomed the stated priority given by the authorities to address shortcomings – but reiterated that any reforms should be “fully in line with European norms and standards and effectively strengthen judicial independence and the rule of law, and not weaken or undermine them”.

In addition, the committee calls upon all Council of Europe member states to ensure that the Courts under their jurisdiction ascertain in all relevant criminal cases - including with regard to European Arrest Warrants - as well as in relevant civil cases, whether fair legal proceedings in Poland, as meant by article 6 of the European Convention for Human Rights, can be guaranteed for the defendants.

The committee also decided to expedite the “periodic review” report on Poland, which assesses how far a member State is fulfilling its membership obligations.

The report, which contains a dissenting opinion, is due to be debated by the plenary Assembly in January.