The position of the European Association of Judges (EAJ) was stated on 4 May 2020 on Twitter by its president, José Igreja Matos.

“Considering the fact that the National Council of the Judiciary does not meet the requirement of being independent of the executive power which is imposed on Councils of the Judiciary, and has done nothing to defend the independence of the courts, we would like to express our support for the initiative to remove the National Council of the Judiciary from the European Network of Councils for the Judiciary,” we read in a letter addressed to Kees Sterek, the President of the Board of the ENCJ.

In a draft of its position as of 22 April 2020, the Board of the ENCJ wishes to state that after PiS’s reforms, the Polish National Council of the Judiciary (NCJ) :

1. does not meet the statutory requirements of membership of the ENCJ, according to which members should be independent of the executive;
2. has grossly violated the principle that the members of the ENCJ should safeguard the independence of the judiciary, and defend the judiciary and individual judges against any projects that threaten their independence;
3. has undermined the application of EU law in cases concerning the independence of judges and the courts, and thus the effectiveness of EU law; and has acted against the interests of the European area of ​​freedom, security and justice, as well as the values ​​behind it.

In its position, the ENCJ’s Board emphasises that Poland’s NCJ has violated the association’s goals, and shows no desire to remedy these violations. Therefore, the board has proposed to the General Assembly that the NCJ be removed from the list of members of the Network. The position has also been received by the Polish Council, which has one month to respond.

If nothing changes in how the NCJ operates, it will be expelled. Judge Igreja Matos wrote that if the ENCJ decides to take this step, other international organisations will probably follow in its footsteps.

“The European Association of Judges intends to continue supporting our Polish colleagues in their fight for an independent judiciary, [and] we are absolutely confident that the same level of commitment will be equally insured” by the other institutions, he adds.

Fight for an independent judiciary

Igreja Matos also recalled that the European Association of Judges, which consists of 44 judicial organisations from different countries, has been following and condemning Zbigniew Ziobro’s ‘reforms’ of the judiciary for several years.

At a session in Copenhagen in May 2019, the association’s board adopted a resolution condemning a further ‘night-time’ amendment to the law concerning the NCJ. He called on the Polish government and parliament to recognise the amendment’s contradiction with international law and EU standards.

In November 2019, the EAJ warned against politicising the NCJ. It once again asked the Polish government to restore the process of electing the National Council of the Judiciary member judges by members of the judiciary. The Association presented its critical position several times, in 2017, 2018, 2019 and 2020.

In January 2020, a delegation of EAJ judges, including its president, took part in the ‘Thousand Robe March’. For the first time in the history of the Association, which has existed since the 1950s, judges went to a country other than their own to show their solidarity and to fight together for independent courts.

“Despite these public statements and similar warnings from various international institutions, the Polish government has continued to violate the fundamental principles of the rule of law and violate the rules enshrined in EU treaties,” Igreja Matos stated with regret in a letter of 4 May.

Everything indicates that the fate of the neo-NCJ has already been sealed. Let’s recall: in March 2018, Jarosław Kaczyński’s party simply nominated all the member judges in it.

The problems with membership of the ENCJ began shortly thereafter. In September 2018, the Network suspended the Polish NCJ as a member. At that time, they emphasised that if the situation in the Polish Council did not change, the board would move to the next step, i.e. the complete exclusion of the NCJ from this organisation.

NCJ is getting worse

In the European Network of Councils for the Judiciary’s draft position, its leadership emphasises that not only has the situation in Poland not improved, in several respects it has even deteriorated:

• relations between the Minister of Justice and members of the NCJ are even closer than had been thought, as evidenced by the lists of support, which were eventually published with great delay;
• the NCJ has openly supported those activities of the executive and legislative authorities which threaten the independence of the judiciary, including disciplinary proceedings against judges;
• at the same time, the NCJ has refused judges the right to protest peacefully against PiS’s ‘reforms’ and supported the disciplinary ombudsmen in their persecution of these judges;
• the NCJ Register has also supported disciplinary proceedings against judges who referred prejudicial questions to the EU’s Court of Justice, and those who complied with the CJEU’s judgement of 19 November 2019 and the Supreme Court’s resolution of 23 January 2020;
• the NCJ supported the introduction in Poland of the so-called ‘muzzle law’.

In an interview with Onet on 22 April, the chairman of the neo-NCJ, Judge Leszek Mazur, “noted with regret that the positions of the two organisations could not be brought closer.”

“The optics regarding the key issue, independence from politicians, are still completely divergent. We were unable to convince the ENCJ that the National Council of the Judiciary is not dependent on politicians in any way. This is regrettable, it gives us no cause for satisfaction, but it seems to me that we cannot only blame ourselves for this situation,” said the head of the NCJ.