Polish judicial reform tested by both Commission and ECHR

Courtroom in the European Court of Human Rights (ECHR) | Patrick Seeger/EPA via EFE

Polish judicial reform tested by both Commission and ECHR

A new system for disciplining judges ‘undermines’ their judicial independence, the Commission says.

By

7/17/19, 6:25 PM CET

Updated 7/18/19, 1:54 PM CET

Poland’s controversial judiciary reform came under fire from two fronts on Wednesday.

The European Commission said it was taking the next step in one of its infringement procedures against the reform, while the European Court of Human Rights (ECHR) said it would look into whether the reform violated the rights of a Polish judge who was dismissed from his post — the first such case to come before the Strasbourg court.

The Commission announced it was moving ahead with an infringement procedure against new disciplinary rules for Polish judges that it had opened in April. At the time, it said that the new system of disciplining judges “undermines the judicial independence of Polish judges and does not ensure the necessary guarantees to protect judges from political control.”

The Brussels’ executive says, for example, that a newly created Disciplinary Chamber is comprised solely of judges chosen by the National Council for the Judiciary (NCJ), whose members are in turn appointed by the Sejm, the lower chamber of the Polish parliament — creating a dependency between the judiciary and the country’s legislative and executive branches.

The Commission also argues that the new disciplinary regime “restricts procedural rights of defendants in disciplinary proceedings” and “no longer guarantees that cases are dealt with within a reasonable time.”

The Polish government has two months to respond. If the Commission finds that Warsaw does not explain its position in a satisfactory manner, it can pass the case up to the Court of Justice of the European Union, the bloc’s highest court.

Also Wednesday, the ECHR, a pan-European court not linked to the EU, announced it had notified the Polish government that it will examine whether the judicial reform violated the EU Charter of Fundamental Rights in a case brought by Jan Grzęda, a Polish judge and a former member of the NCJ.

As part of the reform, the Polish government decided that members of the NCJ would no longer be elected by other judges, but by lawmakers. As a result, 15 newly elected members in March 2018 replaced those chosen under previous legislation. The mandate of all former members, including Grzęda, was terminated.

Grzęda, who had been elected to the NCJ in January 2016 for a four-year term, says his rights were violated as there was no procedure, judicial or otherwise, for him to contest the decision to dismiss him.

The ECHR has asked for a written submission from the Polish government and will decide if the case is admissible.

If it finds that the European Convention of Human Rights has been violated, it can subsequently decide on compensation and push for changes to the law. A court spokesperson has said there are seven other complaints pending that also relate to the Polish judiciary reform.

The ECJ is also investigating in another infringement procedure if Poland’s NCJ is independent. In a non-binding decision late last month, the advocate general said the way in which the NCJ is appointed “discloses deficiencies that appear likely to compromise its independence from the legislative and executive authorities.” A final judgement for that case is due in September.

Authors:
Zosia Wanat