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Resolution 2316 (2020)
The functioning of democratic institutions in Poland
1. The Parliamentary Assembly reiterates
that democracy, the rule of law and respect for human rights are interlinked
and cannot exist without one another. Respecting, but also fostering
and strengthening, these three fundamental principles is an obligation
incumbent upon all member States of the Council of Europe. Conversely,
any developments in a member State that undermine or weaken one
of these fundamental principles is of immediate concern.
2. Member States therefore not only have the right, but indeed
the obligation to address shortcomings in their justice system and
to take any measure that strengthens the independence of the judiciary
and the efficient administration of justice. The Assembly recognises
the challenges faced by the Polish justice system and judiciary,
especially with regard to the efficiency of the administration of
justice – as noted by the European Court of Human Rights in its
judgments against Poland. It therefore welcomes the stated priority
given by the Polish authorities to address the shortcomings in the
Polish justice system. At the same time, the Assembly emphasises
that it is essential that the reforms implemented are fully in line
with European norms and standards, effectively strengthen judicial
independence and the rule of law, and that they do not weaken or undermine
them.
3. In addition, recognising the inherent vulnerability to corporatism
and protection of self-interest of any professional self-governance
mechanism, the Assembly welcomes any reform of the judicial self-governance structures
that aims to increase their transparency, accountability and democratic
functioning, while preserving their independence and autonomy. However,
it would consider it unacceptable if such reforms were to amount to
bringing the judiciary under the control of the executive or legislature
or, even worse, under the political control of the ruling majority.
This would violate the principle of separation of powers, effectively
end the independence of the judiciary and undermine the rule of
law.
4. The Assembly deeply regrets that the reforms of the judiciary
and justice system in Poland do not pass the two above-mentioned
litmus tests. It expresses its serious concern about the fact that
numerous aspects of these reforms run counter to European norms
and standards. They cumulatively undermine and severely damage the
independence of the judiciary and the rule of law in Poland. Moreover,
the reforms have made the judicial system vulnerable to political
interference and to attempts to bring it under political control
of the executive, which challenges the very principles of a democratic
State governed by the rule of law.
5. The centralisation of excessive and discretionary powers over
the judiciary and prosecution service in the hands of the Minister
of Justice and, to a lesser extent, the President of the Republic,
render the justice system vulnerable to political interference and
abuse, and is of concern. This should be promptly addressed by the
authorities.
6. The constitutional crisis that ensued over the composition
of the Constitutional Court remains of concern and should be resolved.
No democratic government that respects the rule of law can selectively
ignore court decisions it does not like, especially those of the
Constitutional Court. The full and unconditional implementation
of all Constitutional Court decisions by the authorities, including
with regard to the composition of the Constitutional Court itself,
should be the cornerstone of the resolution of the crisis. The restoration
of the legality of the composition of the Constitutional Court,
in line with European standards, is essential and should be a priority.
The Assembly is especially concerned about the potential impact
of the Constitutional Court’s apparently illegal composition on
Poland’s obligations under the European Convention on Human Rights
(ETS No. 5).
7. The Assembly lauds the assistance given by the Council of
Europe to ensure that the reform of the justice system in Poland
is developed and implemented in line with European norms and rule
of law principles in order to meet their stated objectives. However,
it notes that numerous recommendations of the European Commission
for Democracy through Law (Venice Commission) and other bodies of
the Council of Europe have not been implemented or addressed by
the authorities. The Assembly is convinced that many of the shortcomings
in the current judicial system, especially with regard to the independence
of the judiciary, could have been addressed or prevented by the
implementation of these recommendations. The Assembly therefore calls
upon the authorities to revisit the total reform package for the
judiciary and amend the relevant legislation and practice in line
with Council of Europe recommendations, in particular with regard
to:
7.1. the reform of the Public
Prosecutor’s Office, the Assembly considers that the merger of the
posts of Minister of Justice and Prosecutor General in the same
person, and the extensive discretionary powers over the prosecution
service and the actual prosecution of individual cases given to
the Minster of Justice, undermine the impartiality and independence
of the prosecution service and make it vulnerable to politicisation
and abuse. The Assembly considers that these two functions need
to be separated urgently and that sufficient safeguards against
abuse and politicisation of the prosecution service need to be introduced
in the law. It calls upon the Polish authorities to do so as a matter
of priority;
7.2. the reform of the National Council of the Judiciary, the
Assembly expresses its concern about the fact that, counter to European
rule of law standards, the 15 judges who are members of the National Council
of the Judiciary are no longer elected by their peers but by the
Polish Parliament. This runs counter to the principle of separation
of powers and the independence of the judiciary. As a result, the National
Council of the Judiciary can no longer be seen as an independent
self-governing body of the judiciary. The Assembly therefore urges
the authorities to reinstate the direct election, by their peers,
of the judges who are members of the National Council of the Judiciary;
7.3. the reform of the common courts, the Assembly is deeply
concerned about the excessive and discretionary powers over the
justice system and judiciary conferred on the Minister of Justice,
including with regard to the appointment and dismissal of court
presidents, disciplinary proceedings against judges and the internal
organisation of the courts. This is compounded by the equally excessive
powers given to the Minister of Justice as Prosecutor General and
the absence of a counterbalance by a genuinely independent National
Council of the Judiciary. These powers need to be reduced and proper legal
checks and balances need to be introduced in the relevant legislation;
7.4. the reform of the Supreme Court, the Assembly deplores
the attempts to force a considerable number of Supreme Court judges
into early retirement, in violation of European standards. The Assembly
therefore expresses its satisfaction that these judges were reinstated
following the judgment by the Court of Justice of the European Union.
The introduction of the possibility of a so-called extraordinary
appeal, on wide-ranging and subjective grounds, against judgments
that have already been finalised and whose appeals process has been
terminated in accordance with the law, is of serious concern as
it violates the principles of legal certainty and res judicata.
The Assembly is concerned that the introduction of the extraordinary
appeal could considerably increase the number of applications against
Poland before the European Court of Human Rights. The composition
and manner of appointment of the members of the disciplinary and
extraordinary appeals chambers of the Supreme Court, which include
lay members, in combination with the extensive powers of these two
chambers and the fact that their members were elected by the new
National Council of the Judiciary, raise questions about their independence
and their vulnerability to politicisation and abuse. This needs
to be addressed urgently.
8. The Assembly takes note of the ruling by the Polish Supreme
Court of 5 December 2019, issued on the basis of the guidelines
contained in the judgment of the Court of Justice of the European
Union of 19 November 2019, that the National Council of the Judiciary
cannot be considered an impartial and independent body, and that
the new disciplinary chamber of the Supreme Court cannot be considered
to be a court within the meaning of European and Polish law. The
Assembly also takes note of the Supreme Court’s resolution of 23 January 2020,
which states that any judges appointed by the National Council of
the Judiciary are not authorised to adjudicate. The Assembly is
deeply concerned by the Polish Government’s reaction to the resolution,
which it considers to be unlawful. It calls upon the Polish authorities
to fully abide by the judgment and resolution and to address without
further delay these fundamental shortcomings in the Polish legal
system.
9. The Assembly expresses its deep concern about the draft amendments
to the Law on the Common Courts, the Law on the Supreme Court and
some other laws of the Republic of Poland, as adopted by the Sejm on
23 January 2020, despite their rejection by the Polish Senate on
17 January 2020 and the very critical assessment of these amendments
by the Venice Commission. It regrets that these amendments were considered
under an accelerated procedure without any consultation with the
main stakeholders or civil society. The Assembly welcomes and supports
the opinion of the Venice Commission on these amendments. The Assembly
considers that adoption of these amendments further deteriorates
the independence of the judiciary and respect for the rule of law
in Poland and runs counter to the country’s obligations under international
law, including its obligations deriving from membership of the Council
of Europe. In addition, these amendments are at odds with Articles
6 and 10 of the European Convention on Human Rights. The Assembly
therefore urges President Duda not to sign these amendments into
law and calls upon the authorities to fully respect the judgment
of the Polish Supreme Court of 23 January 2020, as well as judgments
of the international tribunals they are party to, including those
of the Court of Justice of the European Union. The Assembly further
calls upon the Polish authorities to promptly address the shortcomings
and deficiencies of the justice system highlighted in, inter alia, this Resolution.
10. The often-heard argument that the Polish justice reforms are
in line with European standards, solely because certain aspects
of the reforms allegedly also exist in other countries, is invalid
and should be disregarded. Even if certain provisions are similar
to those in other countries, they cannot be taken out of the context
of the overall legal framework and legal tradition in which they
exist. Accepting such arguments would amount to the possible “Frankensteinisation”
of legislation, which would be based on a combination of “worst practices”
existing in other countries, instead of on best practice and common
European standards.
11. The Assembly deplores the abuse of disciplinary proceedings
against judges and prosecutors in Poland. It reiterates its concern
that the political control of the Minister of Justice over the initiation
and conduct of these proceedings does not provide the required safeguard
against their abuse. The very high number of investigations opened
against judges and prosecutors, on subjective grounds, which are
subsequently neither formally ended nor result in the start of formal
proceedings, deprive the judges and prosecutors concerned of their
right to defence and have a chilling effect on the judiciary. This
therefore undermines its independence. The credible reports that
disciplinary investigations have been opened against judges and
prosecutors solely for being critical of the justice reforms, and
the fact that disciplinary investigations have been opened against judges
as a result of decisions they have taken when adjudicating cases
in their courts, needs to be condemned. In this context, the credible
reports that a politically motivated smear campaign was organised against
members of the judiciary by, and with the involvement of, high ranking
officials in the Ministry of Justice and National Council of the
Judiciary, are both deplorable and concerning; this undermines both
the independence of, and the public trust in, the judiciary. The
organisation of these smear campaigns needs to be fully investigated
and those responsible identified. It is clear that an investigation
by the prosecution service under direct control of the Minister
of Justice, which is also a potential party to the investigation,
would lack the required independence and credibility. The Assembly
therefore calls upon the Polish authorities to establish, at the
earliest opportunity, but no later than 31 March 2020, an independent
public inquiry into these smear campaigns and those responsible
for them.
12. The Assembly notes that the concerns about the independence
of the Polish judiciary and justice system, as well as Poland’s
adherence to the rule of law, directly affect Europe as a whole.
These questions about the independence of the justice system and
the respect for the rule of law are therefore not to be considered
as internal issues for Poland. The Assembly calls upon all Council
of Europe member States to ensure that the courts under their jurisdiction
ascertain, in all relevant criminal cases – including with regard
to European arrest warrants – as well as in relevant civil cases,
whether fair legal proceedings, in the sense of Article 6 of the
European Convention on Human Rights, can be guaranteed for defendants
in Poland.
13. The Assembly notes that, for part of the Polish population,
the negotiated democratic transition of Poland which contributed
to the fall of the Berlin Wall, while a model for many, has failed
to bring closure with regard to the crimes and excesses committed
during the communist era, and is perceived as having allowed those who
profited from the communist regime to have escaped justice for crimes
committed and to safeguard their interests. The Assembly recognises
that this issue is both sensitive and emotionally charged but considers
that, thirty years after the end of the communist regime, the need
for lustration cannot be considered as a valid argument or appropriate
guideline for any reforms of the justice system in Poland.
14. The Assembly is concerned about the fact that the harsh and
intolerant political discourse in the Polish political environment
has created an increasingly permissive climate and has fostered
a perception of impunity for hate speech and intolerant behaviour
towards minorities and other vulnerable groups. This is unacceptable and
should be addressed by the authorities.
15. With regard to the media environment, the Assembly regrets
that the media reforms did not address the problem of the politicised
and biased nature of the media environment and the public broadcaster.
Instead, the media reforms aimed mostly at transferring control
over the public broadcaster from the previous authorities to the
current ruling majority. The Assembly calls upon the authorities
to ensure that a genuinely impartial and professional public broadcasting
system is established in Poland.
16. The Assembly welcomes the important role played by the broad
and vibrant civil society in Poland. It therefore regrets that the
polarisation in the political environment is affecting the space
for civil society to operate, with consultations and co-operation
between civil society and authorities being increasingly selective and
based on ideological proximity.
17. The legal reforms and their detrimental effects on the rule
of law in Poland have an overall negative effect on the effective
functioning of democratic institutions in Poland. Regrettably, there
are no indications that this issue will soon be resolved. The Assembly
therefore resolves to continue to closely follow the developments with
regard to the functioning of democratic institutions and the rule
of law in Poland. The Assembly therefore decides to open the monitoring
procedure in the respect of Poland until the above-mentioned concerns
are addressed in a satisfactory manner.