Mikolaj Pietrzak, Dean of the Warsaw Bar Council, has said that Polish judges are being censored in their judicial capacity by a ‘muzzle law’ that prevents them from questioning the appointment of other judges.
Speaking at an EU Bar Association Ireland seminar on 15 March, Pietrzak explained that any judge who referred to CJEU Luxembourg jurisprudence was subject to disciplinary proceedings.
A politically-controlled disciplinary chamber was now stacked with judges from a ‘neo’ national judiciary council, he added, and had issued proceedings against judges who acted in accordance with CJEU judgments.
Up until 2016, very few questions from Polish civil or criminal courts were directed to Luxembourg, he said. This all changed in 2018, when judges realised that vindicating their fair-trial defence rights in disciplinary proceedings required the application and interpretation of European law, Pietrzak said.
The European Court of Human Rights (ECtHR) has said that the disciplinary chamber is not an independent court, because of the way the judges have been appointed.
Undermining the rule of law
The ECtHR has also said that this is part of a larger policy to undermine the rule of law, and to violate judicial independence in favour of strengthening the executive and legislative branches.
The court ruled on 15 March (by 16 votes to 1) that there had been a violation of article 6 (right to a fair trial) of the European Convention on Human Rights
“This ruling is particularly important, in that it says the 15 judges who are removed from the national judiciary council should not have been removed in that arbitrary fashion; they deserve judicial review and, if they had access to judicial review, the decision to remove them would probably have been overturned,” Pietrzak said.
Repressive proceedings had been applied against truly independent judges who remained loyal to the constitution, he added.
The Bar Council dean said that what was euphemistically called ‘democratic backsliding’ was in fact a shift towards authoritarianism.
This is particularly important to EU states because of the principles of mutual trust and mutual recognition, on which the instruments that lawyers use on a daily basis are based.
This raised questions when it came to European arrest warrants, and the question of fair-trial rights, the dean added.
The effect would spread eventually to mutual recognition-based instruments in commercial and civil proceedings, he predicted.
The Bar Council dean said that a small proportion of people were willing to advance their careers at the cost of respecting basic rule-of-law principles, but the legal professions had also come together to defend the independence of the judiciary.
Pietrzak added, however, that the same could not be said in civil society. Those who voted for the popular government tended to be poorer, rural, and with a lower level of education, he said, in contrast to the well-educated pro-European metropolitans.
This gap had grown larger in the past six years, he added, although the Ukrainian crisis had brought people closer together.
The Bar Council dean said that it was vital to maintain the pressure of linking the disbursement of EU funds with the application of the rule of law.
He added that he feared that the humanitarian crisis would put that on the back-burner, and that that rule-of-law pressure would ease.
“These are EU courts, and a lack of independence in one court impacts on all of Europe, if through no other fashion than simply by undermining mutual trust,” he concluded.