GRECO (Groupe d’États contre la corruption) is the Council of Europe’s anti-corruption agenda, based in Strasbourg, France. Croatian Supreme Court judge Marin Mrčela has been its President since 2011.

The Group monitors how Member States fight corruption. It also ensures that anti-corruption measures comply with Council of Europe standards.

As President Mrčela stressed, the “muzzle law,” which came into force on 14 February, puts Polish judges in a straightjacket. They may be threatened with disciplinary proceedings for judgments that are in line with the European Convention on Human Rights, or European Union law, which is binding on Poland.

“From GRECO’s perspective, judicial independence is a pivotal safeguard against corruption and a means to prevent undue interference with the judiciary. Judicial independence is a cornerstone of democracy and the rule of law,” he explains in a letter dated 24 February 2020.

He summons Ziobro and the PiS government to revise the “muzzle law” and offers GRECO’s assistance in any changes. Meanwhile, on Wednesday 26 February, media reported that the first judge to be subjected to the provisions of the new, controversial legislation is Igor Tuleya, known for being a staunch defender of the rule of law.

Judicial independence a cure for corruption

“Poland is one of the oldest members of the Group of States against Corruption (GRECO) and like all other member States is subject to GRECO’s evaluations,” Marin Mrčela begins the letter.

He also stresses that GRECO has been evaluating corruption in the judiciary for years. An important component of this evaluation is the level of independence of the judiciary in a given country.

“To promote judicial systems where judges are, and are seen to be, independent and impartial in their judicial functions is at the heart of the values of the Council of Europe,” Mrčela mentions.

He then proceeds to a criticism of the judicial “reforms” pursued by PiS.

“Following the 2016-2018 judicial reforms in Poland, leading to extensive amendments to the Laws on the National Council of the Judiciary, the Supreme Court and the Organisation of Ordinary Courts, GRECO strongly criticised the significant weakening of the independence of the judiciary to the benefit of excessive executive powers. In the context of its ad-hoc (“Rule 34”) procedure, GRECO has addressed a number of key recommendations to improve the situation brought about by the 2016-2018 reforms,” he recalls.

Indeed, in the last GRECO report of December 2019, Poland received a “generally unsatisfactory” assessment. The Group’s rapporteurs considered that it had not made sufficient progress in implementing the recommendations to date.

Poland to submit explanations

The PiS government ignored the GRECO evaluation. Shortly after the report was issued, the parliament rapidly adopted a package of “muzzling” laws.

“In the context of the on-going GRECO evaluation in respect of Poland, it is with great concern that I note the recent amendments (December 2019) to the Laws on the Organisation of Ordinary Courts, the Law on Supreme Court and certain other laws, which weaken even further judicial independence in Poland, inter alia by restricting judges’ freedoms and providing the executive branch with additional control mechanisms in respect of the judiciary and its judges,” Marin Mrčela notes with concern.

He stresses that he fully shares the urgent opinion of the Venice Commission of 16 January 2020. The Commission’s rapporteurs issued it after a two-day visit to Warsaw, which they did at the invitation of Marshal of the Senate Tomasz Grodzki. They determined that the amendment would lead to a diminishing of judicial independence and appealed to the Polish Parliament to reject it.

Unsuccessfully.

“I call upon your government to re-consider these amendments. I can assure you of the full support of GRECO if that were to be the case. GRECO will continue to closely monitor the situation in Poland from the angle of its particular field of competence. The full implementation of the existing GRECO recommendations to Poland would go a long way in addressing the above concerns,” Mrčela indicates.

The President of GRECO also announced that during the next plenary session on 16-20 March 2020, Poland will be asked to report on the situation in the courts. Representatives of the Polish government at GRECO are Rafał Kierzynka and Alicja Klamczyńska – officials of the Ministry of Justice.

Council of Europe reacts

The letter of the President of GRECO is another reaction of the Council of Europe bodies to the situation in Poland.

Apart from the visit and the opinion of the Venice Commission, in recent weeks the Polish authorities have also been appealed to by the Council of Europe Commissioner for Human Rights, Dunja Mijatović.

“I note in particular that [the law] puts in place an entirely new and open catalogue of disciplinary offences by judges and prosecutors, accompanied in many cases by severe penalties. Further, it gives additional powers to the Minister of Justice and the Minister-appointed chief disciplinary attorneys […] I am particularly concerned that the provisions of the new bill are designed to further silence dissent among critical judges and prosecutors and to curtail their independence,” she wrote in a letter to Marshal Grodzki.

“I consider the overall effect of these changes to be highly problematic from the standpoint of the standards of the Council of Europe,” the Commissioner emphasises.

Members of the Parliamentary Assembly of the CoE have also reacted. On 28 January 2020 the Assembly adopted a resolution condemning the attack by PiS on the independent judiciary.

The resolution contains a number of provisions displeasing to the PiS government. The worst of them was the initiation of the procedure for monitoring the rule of law and democratic institutions towards Poland. Regular visits by the two rapporteurs await us.

Thus, Poland has joined the 10 member states of the European Council covered by this procedure. The others are: Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Moldova, Russia, Serbia, Ukraine and Turkey.