Position of the Ministry of Justice regarding the “opinion” of the Venice Commission

16th January 2020

“This document can only be referred to as a parody of an “opinion”. From what the Venice Commission presented after its informal visit to Poland, it forces a segregation of European countries into better and worse ones and therefore, the segregation of citizens into those who are allowed more in the democratic process and those for whom civic rights are limited,” emphasized Minister of Justice, Prosecutor General Zbigniew Ziobro at today’s (16 January 2020) press conference.

As demonstrated at the conference, the Venice Commission’s report is full of fundamental errors which demonstrate the lack of knowledge of the authors of both the state of the applicable law and the realities of the functioning of the Polish judiciary over the years.

Minister Zbigniew Ziobro pointed out that instructing Poles – with a feeling of superiority – and claiming that “mature” democracies of the Union can afford for the executive to have an influence on the choice of judges, which Poland is not allowed to do, is an attempt to make the Poles stand in the corner. According to the Venice Commission’s assertions, there is a conviction that Poland is a lower category country, together with such countries as Moldova and Albania.

“Such an informative murmur is badly viewed in Polish history, it is unworthy of people who consider themselves to be Europeans. I will not allow us to be treated in this way,” said Zbgniew Ziobro. He also pointed out that there are countries in which the judges are appointed by representatives of parliament and even directly by the executive.

Deputy Minister of Justice Prof. Marcin Warchoł, who is a member of the Venice Commission, who took part in the conference, assessed the content of the “opinion” of this body using the grades that he would set for such an “analysis” of the justice administration for his students.

He pointed out that, firstly, hypocrisy can be seen in the Commission’s opinion, together with the use of different standards for different members of the EU. There are countries where the judiciary is independent, even though the executive appoints the judges. But new democracies, such as the Republic of Moldova, Albania or Poland are not allowed to do this. “This means a “D” in international law which states that equality of entities on the international arena is applicable and therefore, for instance, Denmark, Germany and Poland have the same rights and the same position,” he reiterated.

“Secondly,” as he mentioned, “the Venice Commission made a mistake of a lack of knowledge of the facts in our country. This is because it claimed that the proponents of the reforms are conducting a public campaign accusing the judges of corporatism, corruption and relationships with the communist regime. Meanwhile, it was Prof. Andrzej Rzepliński, a former judge and the former president of the Constitutional Tribunal, who claimed in 2004 that the National Council of the Judiciary of the time (and this body was only reformed during the rule of the United Right Wing) is a “trade union that badly serves the Polish judiciary”. He also referred to the operation of the NCJ as a corporate relationship.

In turn, in 2014, Jerzy Stępień, a former senator and the former president of the Constitutional Tribunal said that the judge candidates are “rubber stamped” in the NCJ, while the Council takes care of the interests of the judicial corporation and not independence.

This diagnosis coincides with the opinion expressed by the Polish public, which has expressed its dissatisfaction with the state of the judiciary in surveys for many years. Despite such devastating assessments of the work of the NCJ at that time, the Civic Platform, which ruled for two terms of office, did not try to reform the Council.

Therefore, Minister Warchoł would give the members of the Venice Commission a grade of “unsatisfactory” for not being familiar with the current state of the Polish justice administration and its work, which has been negatively assessed by the Polish public for years.

Thirdly – according to Minister Warchoł – the Venice Commission showed that it was not aware of the legal situation in Poland. This is evidenced by claims that there is a risk of the arbitrary removal of judges by the Minister of Justice or excessive pressure from court presidents on judges. Meanwhile, it is only now that the powers of the court presidents over judges have been significantly reduced, preventing them from transferring judges between departments. Here, too, unfortunately, there is an “unsatisfactory” grade for members of the Commission.

And finally, fourthly, the Commission contradicts itself. This is because it states that constitutional courts in many countries reserve the right to settle a dispute between EU law and national law (e.g. Germany), whereas Poland is not allowed to do this. Had the Polish Constitutional Tribunal invalidated the judgment of the Supreme Court, this would mean an open declaration of termination of obedience to the primacy of EU law over national law. The Commission expressed a similar position with respect to the role of our President. On the one hand, it admitted that presidential nominations are not subject to judicial review, but Polish courts are even obliged to conduct such a review if they consider the President’s decision to be unreasonable.

Therefore, four times unsatisfactory.

Communications and Promotions Office
Ministry of Justice

Translated by Roman Wojtasz for Rule of Law in Poland. Original text in Polish is accessible at the website of the Ministry of Justice of the Republic of Poland.