Rule of law in Poland

23.04.2020

Thursday, 23. April 2020

Today the LIBE Committee of the European Parliament will debate the issue of the rule of law in Poland. Whilst there are many problems to delve into, today I would focus on two:

The issue of the political bias of the neo-National Council of the Judiciary (neo-KRS) in Poland.

The question I would put to the EU Commission today, would be simple: How can the EU support Poland in its efforts to regain an independent National Council of the Judiciary?

Why this is important:

The Polish National Council of the Judiciary (Krajowa Rada Sądownicza, KRS) is vital for the independence of the Polish justice system. Its primary role is to help secure the separation of powers between the judicial, executive and the legislative.

In practice the NCJ should be made of senior, well experienced and trusted judges who appoint judges into other courts, ensuring the highest standards, best competences and lack of political bias.

Yet, as part of the judiciary “reform” in 2017-2019, the NCJ has been reorganised in such a way that the competencies required to become a member have been significantly lowered. Moreover it has become possible to appoint political nominees in place of independent judges. Since then, the chamber is unofficially called a neo-NCJ (neo-KRS), to keep a clear separation from the previous, correctly appointed NCJ (KRS). Its validity has been questioned by the European Network of Councils for the Judiciary (ENCJ) 1,2,3.

2. The issue of the potential impact of the incorrectly appointed Chamber of Extraordinary Control and Public Affairs of the Supreme Court on the outcome of the presidential elections in May 2020.

Second question of key importance: Is the EU Commission aware, that the Polish Supreme Court’s Chamber of Extraordinary Control and Public Affairs, which has been populated by the political nominees of the current President Andrzej Duda, is to decide on the validity of the May 2020 elections in Poland? Are there any measures Commissions can undertake against such an abuse of the separation of powers?

Why this is important:

The Chamber of Extraordinary Control and Public Affairs of the Polish Supreme Court recognises (among others) validity of elections. Currently ALL the members of this Chamber were appointed by the current President Duda. Moreover, their appointment was made against the ruling of the Supreme Administrative Court suspending the judicial competition. Recently, the muzzle law strengthened the powers of this Chamber.

In practice this means, that in May, any electoral protests questioning the validity of election of President Duda, will be processed by the judges appointed by President Duda himself (4). This is a clear abuse on the separation of powers.

It is important to highlight the the May presidential elections will most likely not be lawful per the Polish Constitution or the guidance of the European Venice Commission, possibly they will breach against the European Treaty, due to the number of issues:

The campaign is not been “equal” for all candidates due to COVID. President Duda has been running his campaign uninterruptedly as a head of state. At the same time he has signed an array of laws introducing anti-COVID measures which effectively prohibited his counter candidates from running their campaigns other than in social media. Polish Constitution forsees a state of emergency in such a case. Constitutional state of emergency defers any elections per default. The government refuses to trigger this constitutional state of emergency precisely because it wants the elections to happen in May, at the peak of COVID incidence in Poland, where Andrzej Duda’s chances to win outright are at their highest.
The elections will not be accessible for all, ie. for people ill with COVID or quarantined, or Poles abroad;
The elections law has been changed within 6 weeks of elections
Postal elections are being introduced as we speak, breaching all possible rules (postal elections law likely to be signed by the President in the 1st week of May (whilst elections are scheduled on May 10th, with an option to move to May 17th or May 23rd)
Postal elections if take place, will most likely not be anonymous, as there’s a legal option for the postal office to open a package and scan it – a so called “hybrid” packages included in the law just passing through the Parliament;

Polskie tłumaczenie c.d.n.