Venice Commission issued opinion on Polish draft laws on courts

- The Venice Commission (VC) on Thursday recommended rejecting amendments to the laws on courts in its current form

- According to the VC the amendments may be seen as further undermining the independence of the judiciary

- The VC claims the influence of the Minister of Justice on disciplinary proceedings is increased further

- The Commission argues the amendment puts judges at risk of facing disciplinary measures for complying with CJEU rulings

- The VC recommends that judiciary council (KRS) members to be nominated by judges, and not the parliament

- The VC suggests change of composition and structure of "super-chambers" in the Supreme Court

- The Commission postulated return to previous method of appointing Supreme Court Chief Justice

Last week, the Venice Commission delegation came to Poland and held talks with various bodies regarding the amendments to the law on organisation on the Common Courts, the law on the Supreme Court and other laws, in order to formulate an urgent opinion on the subject.

On Thursday the Commission published a 14-page critical opinion regarding the so-called repression act (also knows as muzzle law). The body also reminded that it had already raised concerns regarding Poland's judiciary reforms in 2017.

"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," the Commission argues. Furthermore, in its view, "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 VC warns.

"New disciplinary offences are introduced and the influence of the Minister of Justice on disciplinary proceedings is increased further," reads the opinion.

It was also added that the amendment assumes introducing provisions "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," it was stressed.

In conclusion, the Venice Commission recommends not to adopt those amendments.

"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," we read further in the opinion.

Furthermore, it was pointed out that Polish judges are being put "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 VC recommended solutions which - in its opinion - are meant 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" - reads the opinion published by the Venice Commission.

"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" - the Commission said.

READ THE FULL OPINION BY THE VENICE COMMISSION >>>

In line with the statute of this advisory body of the Council of Europe, opinion issued in urgent mode are approved at the next scheduled plenary session of the Commission in Venice. The next session is to be held on March 20th and 21st.