The Commissioner for Human Rights’ Office presented an extensive opinion to the Speaker of the Senate on the Act amending the Law on the System of Ordinary Courts, the Act on the Supreme Court and certain other acts of 20 December 2019. The bill is being referred to as the “repression” or “muzzle” act (analysis of the draft version of the law point by point is available here).

The main conclusions from the Commissioner for Human Rights’ opinion?

• The Senate should reject the “muzzle” act of 20 December 2019;
• It breaches the Constitution, is in conflict with Poland’s obligations to the European Union and calls into question the legal dimension of Poland’s participation in the EU and the Council of Europe;
• This is because it introduces, among other things, unacceptable tools which interfere with judicial independence, as well as freedom of expression and the association of judges;
• It subjects Polish courts and Polish judges to political control by the legislative and executive authorities and, as a result – drastically reduces the level of judicial protection of individual rights.

According to the Commissioner for Human Rights, the actual objective of the bill is “to eliminate ad hoc obstacles that have appeared in the case-law of the Polish and European courts and under the regulations to date, which prevent or obstruct the implementation of political ideas that are in conflict with the Polish Constitution, the European Convention on Human Rights and European Union Law.”

On January, 7th, the Commissioner for Human Rights Adam Bodnar presented his allegations regarding the bill during the session of the Senate’s Committee on Foreign Affairs and the European Union.

This bill will be reviewed by the Senate’s Legislative, Human Rights, Rule of Law and Petitions committees on 8 January 2020. The whole of the Senate is to discuss it on 15 January.

Commissioner for Human Rights on the defects of the bill

According to the Commissioner for Human Rights, the bill breaches the Constitution, is in conflict with Poland’s obligations to the European Union and contests Poland’s participation in legal terms in the EU and the Council of Europe.

• This is because it introduces, among other things, unacceptable tools for interfering in judicial independence, as well as freedom of expression and the association of judges.
• It also subjects Polish courts and Polish judges to the political control of the legislative and executive authorities and, in effect – drastically reduces the level of judicial protection of individual rights.
• It also reduces the involvement of judges, the judicial self-government and the court collegial authorities in decision-making on the functioning of the Polish justice administration.
• It transfers further powers to the presidents of the courts, thereby increasing the influence of the minister of justice on the judiciary.

The Act posts a threat to European integration

At the session of the Senate committee, Adam Bodnar spoke about the bill in the context of European integration and the observance of civil rights.

“It would be a big problem for Poland from the point of view of European integration if the bill were to be enacted in this form. This can affect our functioning within Europe’s legal space, because the basic principle of this is mutual trust and acceptance,” said the Commissioner for Human Rights.

He recalled the European Commission’s motion that is waiting to be considered by the Court of Justice of the EU regarding Article 7 of the Treaty on the Functioning of the EU with regard to disciplinary measures against judges, as well as other ongoing proceedings of the CJEU against Poland and its judgment of 19 November 2019.

The problem of independence of the judiciary is related to the principle of the rule of law expressed in Article 2 of the Treaty on EU.

“If we accept the argument that we refuse to apply the principles of the rule of law, this is actually equivalent to questioning the country’s involvement in the process of European integration. That is why, in my speech in the Sejm, I used the expression that progressing activities heading in this direction will have the nature of a legal Polexit,” said Adam Bodnar.

Meanwhile, the Polish authorities are taking steps to restrict the operation of Polish courts in the European legal space. For example, no steps can be seen to be taken to enforce the judgment of the CJEU of 19 November 2019. However, disciplinary proceedings are being initiated against judges who implement this judgment. Meanwhile, the bill of 20 December even introduces a prohibition to challenge the legitimacy of the courts and tribunals.

From the point of view of European law, this Act breaches articles of the Treaty and the Charter of Fundamental Rights, but it also introduces restrictions on the use of the principle of primacy of European law and the direct effect. The provisions of the Act stipulating that, in fact, only the Chamber of Extraordinary Control of the Supreme Court can file a motion to determine whether a judge has been appointed should also be considered unlawful. Meanwhile, EU law postulates that every court should have its own autonomy. The NCJ and the Disciplinary Chamber of the Supreme Court appear not to have noticed the judgment of 19 December.

It arises from the CJEU case-law that the right to an effective remedy should be real and not illusory. Therefore, situations cannot be brought about where judgments of the CJEU and national courts are passed, after which their execution is questioned in a variety of ways.

According to the Commissioner for Human Rights, the decision on which steps should be taken and which should not is a kind of double-edged sword. Imagine that a court of some country says that it is not interested in a judgment of the CJEU regarding the Opal gas pipeline.

All this leads to such threats as:

• the possible risk of losing EU funds (which is distant in time);
• disruption in the normal functioning of individuals and entrepreneurs in a free market in the face of legal chaos;
• threats to the functioning of the area of freedom, security and justice.

The average citizen can have difficulties

According to Adam Bodnar, “all the consequences will be of significance to the everyday life of the average citizen and entrepreneur. For instance, even now, the functioning of the European arrest warrant does not look like it should in an EU Member State. Therefore, this bill should not be enacted,” said the Commissioner for Human Rights.

The Commissioner for Human Rights also referred to the statement of the Deputy Minister of Foreign Affairs, Paweł Jabłoński, during the meeting that no “external factors” should affect this Act.

“Since the mandate of the Venice Commission takes into account the possibility of national parliaments, including the Senate, asking it for its opinion, nothing that stands in the way of asking it for such an opinion during the legislative work,” said Adam Bodnar. Meanwhile, the commission is a body of the Council of Europe and was joined by Deputy Minister of Justice, Marcin Warchoł, and Mariusz Muszyński from the Constitutional Tribunal from Poland. Furthermore, ODIHR / OSCE is also to express its opinion on this matter, as requested by the Commissioner for Human Rights.

Full text of the opinion (in Polish)