The Parliamentary Assembly of the Council of Europe (PACE) has voted to open a monitoring procedure for Poland over the functioning of its democratic institutions and the rule of law, declaring in a resolution that recent reforms “severely damage the independence of the judiciary and the rule of law”.
Poland joins ten other Council of Europe member States currently under full monitoring,* which involves regular visits by a pair of PACE rapporteurs, ongoing dialogue with the authorities, and periodic assessments of how far a member State is honouring its Council of Europe obligations and commitments.
In a resolution based on a report by Azadeh Rojhan Gustafsson (Sweden, SOC) and Pieter Omtzigt (Netherlands, EPP/CD) - adopted by 140 votes to 37, with 1 abstention – the Assembly said 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.
The parliamentarians 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”.
They urged President Duda not to sign the amendments adopted by the Sejm on 23 January 2020, which they said “further deteriorate the independence of the judiciary and respect for the rule of law in Poland”, and were at odds with Articles 6 and 10 of the European Convention on Human Rights. They called on the authorities to “fully respect the judgment of the Polish Supreme Court of 23 January 2020”.
Referring to the crisis over the composition of the Constitutional Court, the Assembly 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.”
PACE 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 Assembly 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 Assembly called on all Council of Europe member States to ensure that the courts under their jurisdiction ascertain in all relevant criminal and civil cases - including with regard to European Arrest Warrants - whether fair legal proceedings in Poland, as defined under Article 6 of the European Convention for Human Rights, can be guaranteed for the defendants.
* Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Republic of Moldova, Russian Federation, Serbia, Turkey and Ukraine