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Changes in the Supreme Court. Critical position of the Justice Defense Committee on the amendment

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“The changes proposed by the government are purely illusory, which in fact deepen the already numerous violations of the Constitution of the Republic of Poland, European Union law and the European Convention on Human Rights” – assessed the Committee for the Defense of Justice of the amendment to the laws on the Supreme Court and other courts.

The Justice Defense Committee (KOS) issued its position on Thursday draft changes in the Supreme Court and other courts. On Wednesday, in the second reading, the Sejm’s Justice and Justice Committee human rights recommended the adoption of the amendment. The draft will now be discussed in plenary.

Full position of the Justice Defense Committee >>>

The Committee pointed out that during the meeting of the committee, the Minister for European Affairs, Szymon Szynkowski vel Sęk, “transmitted directly information that the assumptions of the project were allegedly positively assessed by the entire Commission (European – note ed.) as filling the so-called ‘milestones’ concerning the judiciary, annexed to the one signed by the Polish government of the National Reconstruction Plan“.

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“The Justice Defense Committee of the KOS clearly states that the legislative proposal in question maintains the state of non-compliance with EU law and the Constitution of the Republic of Poland and does not contribute to the implementation of the so-called ‘milestones’, and thus the payment Poland funds from the Reconstruction Fund.

KOS: removal of the muzzle law is necessary to meet milestones

It was assessed that “first of all, the proposed bill does not repeal the provisions of the so-called ‘Muzzle Act’ of February 2020, which provide, inter alia, that actions questioning the existence of a judge’s service relationship, the effectiveness of the appointment of a judge or the empowerment of a constitutional body of the Republic of Poland are prohibited and constitute disciplinary offense punishable by the removal of a judge from the profession.

“This means that the court will continue to prosecute the violation of the fundamental right for citizens to an independent and impartial court established on the basis of the act – due to the participation in the adjudicating panels of persons appointed at the request of the politicized neo-KRS. Removing the muzzle act from the Polish legal order is a necessary condition for meeting milestones, which was repeatedly emphasized by the President of the European Commission Ursula von der Leyen and which follows directly from CJEU security order of 14 July 2021 (C-204/21 R), on the basis of which the milestones were shaped” – wrote KOS.

“In addition, both EU law, the European Convention on Human Rights and the provisions of Polish law absolutely require that each court can ex officio, without any restrictions and without the threat of disciplinary prosecution, examine the compliance of the adjudicating panel with the law” – added.

“Facade and purely apparent” test of impartiality

“Moreover, the bill maintains a façade and purely apparent (in fact, impossible to actually apply) ‘judge’s impartiality test’, as it makes it impossible, in accordance with EU law, to reliably assess the circumstances of a given person’s appointment as a judge – as a result, it does not ensure the right to a fair process,” the statement reads.

According to the judiciary community, “the mere fact that, in the light of the submitted draft, judges appointed with the participation of the neo-NCJ who have an obvious personal interest in maintaining the status quo may participate in the composition of the impartiality tests undermines the effectiveness and impartiality of the testing process.”

Committee on the competences of the NSA

According to the Committee, “the draft also does not take into account the standard of the European Convention on Human Rights, which must also be complied with by EU law, including ‘milestones’, which show (as confirmed by numerous judgments of the ECtHR) that the very fact of participation of the politicized neo-KRS in the appointment of judges leads to a violation of the right to a ‘court previously established by law'”.

It was pointed out that “a glaring example of this violation is the upholding of the decisions of the liquidated Disciplinary Chamber (including those to remove judges from adjudication), which, according to the EU Court of Justice, the European Court of Human Rights and the Polish Supreme Court, did not meet the criteria of a ‘court'”.

“Finally, contrary to the wording of one of the ‘milestones’, disciplinary cases of judges, under the draft act, are to be transferred to the Supreme Administrative Court, and not, as is clear from the commitments contained in the ‘milestones’, to another chamber of the Supreme Court that meets the criteria Article 19 of the EU Treaty, it was pointed out.

In the opinion of experts, “this proposal is also inconsistent with the Constitution of the Republic of Poland (Article 184), which does not provide the Supreme Administrative Court with competence to hear disciplinary cases of all judges”.

The Supreme Administrative Court and other administrative courts exercise, within the scope specified in the Act, the control over the activities of public administration. This control also includes adjudication on the compliance with the law of resolutions of local government bodies and normative acts of local government administration bodies.

“Most importantly, due to the fact that currently about 1/3 of the composition of the Supreme Administrative Court are the so-called neo-judges, i.e. persons appointed to positions in this court by the politicized neo-NCJ, the project deepens the described risk of violating the right to a fair trial. The Supreme Administrative Court will paralyze the work of this court with disciplinary proceedings and tests of independence of judges, which is probably beneficial for the government, as it will make it very difficult to recognize citizens’ complaints against decisions of government administration bodies.

“Another project is presented” and “at the same time, the repression of judges continues”

As it was written in the statement, “it is significant that at the time when another project is presented, which is presented as a manifestation of the good will of the Polish authorities, at the same time repressions against judges who apply the ECHR and EU law are continued.”

“A glaring example of such action is the refusal to enforce the protection of the ECtHR of December 6, 2022 (applications no. 39471/22, 39477/22, 44068/22) by reinstating three repressed judges of the Warsaw Court of Appeal to work in the previous position, the justification of which stated that that ‘the interim measure issued by the ECtHR is not binding’, it added.

“In the opinion of the Justice Defense Committee, the KOS bill currently under consideration in the Sejm will not meet the declared goal, which is the approval of ‘milestones’ regarding the judiciary, and as a result, the payment of funds from the Reconstruction Fund. The changes proposed by the government are purely illusory, which basically means the already numerous violations of the provisions of the Constitution of the Republic of Poland, European Union law and the European Convention on Human Rights are deepening.

Main photo source: TVN24

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