“According to the Polish constitution, the speaker of the Senate, Tomasz Grodzki did not have the right to ask the Venice Commission to issue an opinion on the amendment of the court acts. […] An abuse has taken place,” insisted justice minister Zbigniew Ziobro on 8 January 2020 in “Rozmowy Niedokończone” [Unfinished Discussions] in TV Trwam.

But it is not the Polish Constitution that determines who can ask the Venice Commission to issue an opinion, but the Commission itself. Poland has also been its member since 1992.

According to the principles of operation of the Venice Commission, representatives of a given country, the government, parliament or the head of state, can ask it for its opinion. In addition, the bodies of the Council of Europe and other international organizations, such as the European Union, are also able to do so.

The argument regarding Grodzki’s abuse is a further manipulation by a representative of the Law and Justice government.

Firstly, in accordance with Article 8 of the Regulations of the Senate, Tomasz Grodzki represents the higher chamber of the Polish parliament. Therefore, he is a representative of this parliament, who is authorized to invite the Commission, which he did at the end of December 2019.

His competence was confirmed by the Commission itself, by accepting the invitation and announcing that it would issue an opinion on the disciplining act in a priority procedure.

In 2015, the Minister of Foreign Affairs of that time, Witold Waszczykowski, did the same as Grodzki. A representative of the government then asked the Venice Commission to evaluate the “reform” of the Constitutional Tribunal.

The reporters of the Venice Commission will visit Poland on 9–10 January.

Grodzki sends the invitation

Speaker of the Senat, Grodzki, called on the Venice Commission shortly after he received a letter from the Vice-President of the European Commission of 19 December 2019. In it, Věra Jourová appealed to the highest authorities of the Republic of Poland to stop work on the so-called act disciplining judges.

“I invite all State organs not to take forward the legislative proceedings before carrying out the necessary consultations with all stakeholders,” she wrote in the letter.

Jourová called on the Polish authorities to talk especially to the Venice Commission of the Council of Europe.

Tomasz Grodzki responded immediately to her letter.

He assured the Vice-President of the European Commission that the Senate will ensure that the Act is progressed in a transparent and legal manner and that the partners in Poland and abroad will be thoroughly consulted. Shortly afterwards, on 30 December, he sent a letter inviting the Venice Commission to Warsaw.

The Commission is to issue an opinion on the so-called disciplining act, also referred to as the muzzle act. The bill, which was voted through by Law and Justice in the Sejm on 20 December, after 29 hours of chaotic “correction”, assumes, among other things, a drastic increase in the disciplinary liability of judges.

They are to be threatened with penalties for challenging the status of judges appointed with the participation of the neo-NCJ.

The Venice Commission received Grodzki’s invitation on 2 January 2020. As the Senate’s justice commission will deal with the bill for the first time at the session on 7–8 January, the Commission decided to prepare the opinion in priority mode. It will be prepared by the team of reporters who will visit Poland on 9–10 January.

Normally, the Commission accepts opinions at plenary sessions which are held four times a year. However, in urgent cases, it can do this earlier and just support the earlier findings at the plenary session. The next plenary session is planned for 20–21 March 2020.

The Commission’s visits to Poland

The Venice Commission was invited to Poland in December 2015 by Law and Justice’s former minister of foreign affairs, Witold Waszczykowski. Shortly after the visit to Warsaw, at the session of 12–13 March 2016, the Commission accepted a devastating opinion about the “reform” of the Constitutional Tribunal conducted by the Law and Justice government.

It acknowledged that:

• President Andrzej Duda must swear in the three judges chosen by the Sejm of the 7th term of Office;
• the Constitutional Tribunal should not adjudicate on the constitutionality of an act on the basis of the provisions of that same act;
• the publication of the Constitutional Tribunal’s judgement of 9 March 2017 (the Tribunal acknowledged the amendment of the Act on the Constitutional Tribunal to be unconstitutional) is a “pre-condition” for Poland to come out of the constitutional crisis.

The Law and Justice government ignored this opinion.

Waszczykowski’s decision to invite the Commission was strongly criticized by his party’s colleagues, including Chairman Kaczyński. Waszczykowski himself made the assurance that the opinion is not binding on Poland and that the Commission was biased. He explained that if he had not invited it himself, it would still have been “sent” to Poland.

The Venice Commission has visited our country several times in the years after that to analyse the Law and Justice party’s reforms:

• in April 2016, it was “sent by the Parliamentary Assembly of the Council of Europe to take a look at the amendment to the Act on the Police, which increased the ability to invigilate citizens;
• in October 2016, the Commission again analysed the reforms of the Constitutional Tribunal (at the request of the Secretary General of the Council of Europe, Thorbjørn Jagland), to check whether the government had complied with the opinion of March;
• in May 2017, the Parliamentary Assembly of the Council of Europe asked it to assess the amendments to the law on the prosecution service;
• in October 2017, also at the request of the Parliamentary Assembly, it analysed the “reform” of the ordinary courts, the Supreme Court and the NCJ.

Each of the opinions criticized the changes introduced by the Law and Justice government. In turn, this government has not implemented any of the Commission’s comments.

Translated by Roman Wojtasz.