Courts’ freedom at stake as EU mulls funding for Poland

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Poland’s prime minister recently claimed that the vast majority of Polish judges vetted by a controversial judicial chamber were drunk drivers, rapists or thieves. This request was quickly rejected by nearly 60 judges under investigation by the so-called disciplinary chamber of the Supreme Court of Poland.

In an open letter to Prime Minister Mateusz Morawiecki, they said none of them had committed any crime and all were instead targeted for defending judicial independence. Their fate – and the independence of Polish courts more broadly – is at the heart of a dispute with the European Union, which withheld billions of euros in pandemic recovery funds from Warsaw over it.

Here’s a look at some of the key issues at stake as European Commission President Ursula von der Leyen travels to Warsaw on Thursday to discuss the matter.

WHAT LEVER DOES THE EU HAVE?

For months, the EU blocked the government in Warsaw from accessing its share of funding for the bloc’s pandemic recovery over the issue of judicial independence.

Poland is in dire need of cash as it struggles to absorb an estimated 2 million Ukrainian refugees at a time of nearly 14% inflation.

The European Commission, which is the executive arm of the EU, finally approved Poland’s pandemic recovery plan on Wednesday evening, but said the release of nearly 36 billion euros (38.5 billion dollars) of grants and loans would depend on Warsaw reforming its judicial system.

Some accuse the commission of capitulating to Warsaw, just days after caving in to Hungary’s authoritarian ruler by granting Budapest a near-total exemption from an oil embargo on Russia.

He endorsed Poland’s recovery fund as Warsaw delayed a plan to impose an EU-wide minimum tax rate of 15% on multinationals.

WHAT’S THE PROBLEM FOR THE EU?

When the ruling Law and Justice party first took power, from 2005 to 2007, it saw its ambitions for a conservative remake of Poland derailed by the courts. After the party returned to power in 2015, leader Jaroslaw Kaczynski worked to ensure he had more compliant courts before pushing through further changes.

Once the party gained near-total control over the Constitutional Court, it exploited it to help enshrine conservative values ​​in law.

In an example of the court’s power to affect ordinary citizens, it ruled in late 2020 that the abortion of congenitally damaged fetuses – previously permitted by law – was unconstitutional.

The ruling, which further restricted one of Europe’s strictest abortion laws, sparked the biggest protests in Poland’s 30-year post-communist history.

HOW HAS THE POLAND GOVERNMENT TARGETED JUDGES?

Two other key areas of controversy relate to how judges are selected and how they can be sanctioned by being stripped of their powers to sit in court and make judgments.

The ruling party has changed the rules governing the body that appoints court judges, the National Judicial Council. It was created to guarantee the independence of judges, but since 2018 it has come under the political control of the ruling party. Some of the judges appointed by the council sit in the disciplinary chamber of the Supreme Court.

Last year, a European umbrella group, the European Network of Councils for the Judiciary, expelled the Polish council, saying it no longer guaranteed the independence of the judiciary or individual judges.

The EU tribunal last year ruled the disciplinary chamber illegal and ordered Poland to pay a fine of 1 million euros per day as long as it operates.

ARE POLISH JUDGES HONEST?

Dariusz Mazur, a judge from Krakow, vice-president and spokesperson for Themis, an association of judges, said that Polish judges have for years been the target of a disinformation campaign by the ruling party which seeks to discredit them by unfairly portraying them as corrupt.

He recalled a 2017 state-funded poster campaign that sought to justify new judicial laws by citing the case of a judge who had shoplifted. “The information was true, but the judge had already been retired for many years and suffered from mental illness,” he said.

Mazur said only 10% of ongoing disciplinary proceedings involve actual misconduct on the part of judges, while 90% are politically motivated proceedings against judges who defend the independence of the judiciary.

Mazur himself is the subject of four disciplinary proceedings for public statements in defense of an independent judiciary.

John Morijn, a law professor at the University of Groningen in the Netherlands, said that in the years before Law and Justice came to power in 2015, Polish courts had a reputation for being slow but not corrupt.

The ruling authorities’ allegations amount to “a witch hunt against judges”, he said.

WHAT DOES THE GOVERNMENT SAY?

The Polish government has repeatedly denounced EU court rulings and attempts to tie funding to democratic behavior as attacks on the country’s sovereignty.

He argues that EU institutions have no right to interfere in judicial affairs and that Warsaw has the right to shape its own legal system.

In fact, EU Member States are free to organize their own judicial system as long as their systems respect the principle of judicial independence.

WHAT CHANGES DOES THE EU WANT?

The European Commission has outlined the “steps” that Poland should reach to release funds. These include the abolition of the disciplinary chamber, the reform of the disciplinary system and the reinstatement of judges who were unlawfully dismissed.

None of these conditions have been met.

A plan approved by parliament last week removes the disciplinary chamber and replaces it with a professional accountability chamber that would operate in much the same way. It would be made up of judges chosen by the disputed National Judicial Council.

And only one suspended judge, Pawel Juszczyszyn, has so far had his suspension lifted. After 839 days, he returned to work at Olsztyn District Court in recent days to learn that he was being transferred from working on civil law cases – his field for more than 20 years – to family law. He was also ordered to go on leave.

“These decisions are made in clear violation of the law,” Juszczyszyn said Wednesday, vowing to fight them.

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