Prof. Dr. Marc de Werd is a senior judge at the Amsterdam Court of Appeal in the Netherlands and professor of law at the University of Amsterdam. He is a Member of the CCJE of the Council of Europe.

Anna Wójcik: You will join your Dutch colleague-judges, together with Polish judges in Warsaw, to protest against the political attacks on judicial independence in Europe. Do you know how many Dutch judges are coming to Warsaw? What is your personal reason for coming?

We will be in Warsaw with approximately 10 judges. Among them, members of the Supreme Court and the Court of Appeal, delegates from the Dutch Association of Judges and Judges for Judges.

My personal reason for coming is that I am worried about the decline of the rule of law in Europe. Poland is no exception. Judicial independence is the cornerstone of our justice system. I find it important that we explain the historical background of the EU. After the Second World War, the world wanted the atrocities of the Holocaust never to happen again. For the first time in Europe’s history, we have enjoyed a period of more than seventy years without wars. We should keep the memory of our history alive and explain the importance of democracy and human rights.

The “repressive” Act of 20 December 2019 adopted by the Sejm would curb basic freedoms of judges in Poland. The politicians who support the bill claim it is unbecoming of judges to protest and voice their opinions, among others. Can you as a judge in the Netherlands take part in demonstrations, voice your views in newspapers and in the social media? How does the status of a judge in the Netherlands affect your civic freedoms? Are there any limits to your activity and if so, how are they justified?

For this matter I do not only consider myself a judge of the Netherlands but also a European judge. Standing up for justice and the justice system is a shared responsibility of European citizens and the Member States. Not only political institutions must raise their voice but also judges, who are the guardians of the rule of law.

I must admit that this is an exceptional situation. As far as I can remember, this is the first time that judges from the Netherlands have joined a silent march at all. Marching together with other judges from Europe in another country is unique. And I know it is politically sensitive. It emphasizes how much we are concerned about what’s going on in Poland and elsewhere in Europe.

We have not come to Poland to protest against your government. We have great respect for your democracy. And we want to stay out of politics. But we do find it important to support our Polish colleagues who are worried about their independence.

How does the attack on judicial independence in Poland affect you as a judge in the Netherlands and as a EU citizen?

Cooperation in the EU is based on the principle of mutual confidence. I am a criminal law judge. When I receive a request from Poland to surrender a suspect or a convicted person to Poland I must trust the Polish authorities that they will give him a fair trial. If we European judges cannot trust each other anymore, that would mean the end of judicial cooperation in the EU. It would also seriously affect, for example, trade relations in Europe. If Dutch commercial businesses do not trust the Polish judge that is deciding on their civil dispute, they might go elsewhere.

Where do you get information about developments in Poland? Is the situation related to the rule of law in Poland reported in the general, mass media in your country? Or is it more of a niche, expert issue?

I get my information where I can. Newspapers, television and social media. I am a member of the Consultative Council of European Judges that is closely monitoring Polish developments. I don’t believe everything I read. And I am aware that there is more than just black and white.

The Polish President and government officials often suggest that people in other countries – especially in established democracies in Western Europe with markedly different historical experiences from those in Central and Eastern Europe – cannot understand the situation in Poland and changes in the judiciary. What would be your response to such claim?

To a certain extent they have a point. Our histories differ. But when Poland joined the EU, it wanted to build a new future. The EU has been tremendously important for the Polish economy. When joining the EU, Poland was well aware of the common European values. The separation of powers, democracy, respect for minorities and an independent and impartial judiciary are all part of the concept of the rule of law.

Paradoxically, Polish government’s attacks on judicial independence resulted in the EU Court of Justice detailing criteria about independence of judges and standards of judicial councils in the EU. Have the authorities in the Netherlands reacted to these criteria specified in the judgment of 19 November? Are there any plans to review the regulations in the Netherlands in the light of these criteria and perhaps to adjust them? Is there any discussion in the Netherlands that perhaps the CJEU has gone too far?

No, not to my knowledge. I must explain this. In the Netherlands we are less ‘scared’ of European and international human rights law. That is because we have no Constitutional Court. Since the 1950s, we have got used to the idea that the Strasbourg Court of Human Rights has sometimes been quite strong about deficiencies in our justice system. We are not afraid that this will curtail our sovereignty. On the contrary, it only makes us stronger. We have strongly benefited from the ECHR’s case law. We expect the Luxembourg Court to do the same if necessary.

In your opinion, what is the biggest issue regarding the justice system, the rule of law and judicial independence in the Netherlands? Did you recently have or are you planning any substantial reforms? If so, in which areas?

Every court in the world has a limited financial budget. In one way or another, the amount of the judicial budget is ultimately decided by the legislator. Which is natural because it is tax payers’ money. But who decides how much money is enough? Parliament, the Minister of Justice, Court presidents, individual judges? Underfinancing of the courts can undermine the quality of justice. As in many other countries in Europe we are currently debating this issue.

And the last question, which is perhaps a little silly on the surface: can you as a Dutch judge and will you protest in Warsaw in your robes? There have been lengthy discussions among various legal professions in Poland whether they can actually wear their robes during demonstrations. 

This is a sensitive topic indeed. We have lengthy debates about this issue. I can imagine that wearing robes can appear to the Polish people as a foreign intrusion in national affairs. As I explained, we – European judges – want to express our solidarity with our Polish colleagues. We are not coming to Poland as representatives of the Dutch government. We have our own responsibility. I shall bring my robe anyway. But I shall decide about whether or not to wear it when I arrive in Warsaw.