Venice Commission opinion on the “muzzle law”
"The amendments of December 2019 diminish judicial independence and put Polish judges into the impossible situation of having to face disciplinary proceedings for decisions required by the ECHR, the law of the European Union, and other international instruments."
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58. At the invitation of the Marshal of the Senate, the Venice Commission examined the recent amendments to the laws on the judiciary, adopted by the Sejm in December 2019. It recalls that already in its 2017 Opinion on Poland it expressed strong concerns over the reform, initiated by the Government at that time. This reform “enabled the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice” and thereby “posed a grave threat to the judicial independence” (§ 129).
59. Unfortunately, some of the December 2019 amendments may be seen as further undermining the independence of the judiciary, while trying to resolve problems resulting from the reform of 2017. Thus, by virtue of those amendments, the judges’ freedom of speech and association is seriously curtailed. Polish courts will be effectively prevented from examining whether other courts within the country are “independent and impartial” under the European rules. The participation of judges in the administration of justice is further reduced: bodies of judicial self-governance are replaced, in important matters, with the colleges composed of the court presidents appointed by the Minister of Justice. New disciplinary offences are introduced and the influence of the Minister of Justice on disciplinary proceedings is increased further. Appeal courts will no longer be able to assess the correct composition of lower level court chambers, depriving litigants of an important guarantee. Provisions are introduced which could further reduce the role of the judges of the Supreme Court in the process of selection of the First President. Finally, some of those provisions may be interpreted as having a nullifying effect in respect of the judgments which are already final.
60. The Venice Commission understands that Polish legal order faces a difficult situation: as a result of the controversial reform of 2017, “old” judicial institutions de facto refused to recognise the legitimacy of the “new” ones. This “legal schism” should be quickly resolved, which will certainly require further legislative amendments. The amendments of December 2019, however, are not suitable to achieve this goal. They diminish judicial independence and put Polish judges into the impossible situation of having to face disciplinary proceedings for decisions required by the ECHR, the law of the European Union, and other international instruments. Thus, the Venice Commission recommends not to adopt those amendments. 61. Other solutions have to be found. In order to avoid further deepening of the crisis, the Venice Commission invites the Polish legislator to seriously consider the implementation of the main recommendations contained in the 2017 Opinion of the Venice Commission, namely:
• to return to the election of the 15 judicial members of the National Council of the Judiciary (the NCJ) not by Parliament but by their peers;
• to significantly revise the composition and internal structure of the two newly created “super-chambers”, and reduce their powers, in order to transform them into normal chambers of the Supreme Court;
• to return to the pre-2017 method of election of candidates to the position of the First President of the Supreme Court, or to develop a new model where each candidate proposed to the President of the Republic enjoys support of a significant part of the Supreme Court judges;
• to restore the powers of the judicial community in the questions of appointments, promotions, and dismissal of judges; to ensure that court presidents cannot be appointed and dismissed without the significant involvement of the judicial community.
62. Further legislative measures will be required to implement those recommendations, and the Venice Commission remains at the disposal of the Polish authorities for further assistance in this matter.