Draft resolution
1The 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. Conversely, any developments in
a member state that undermine or weaken one of these fundamental
principles is of immediate concern.
2Member states therefore not only have the right, but indeed
have the obligation to address shortcomings in its 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 judgments of 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 and effectively
strengthen judicial independence and the rule of law, and not weaken
or undermine them.
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST, Mr Daniel MILEWSKI
In the draft resolution, paragraph 2, at the end of the first sentence, insert the following words: "according to its social, cultural and political conditions".
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST, Mr Daniel MILEWSKI
In the draft resolution, paragraph 2, delete the following sentence:
"At the same time, the Assembly emphasises that it is essential that the reforms implemented are fully in line with European norms and standards and effectively strengthen judicial independance and the rule of law, and not weaken or undermine them."
3In addition, recognising the inherent vulnerability to corporatism
and protection of self-interest of any professional self-governance
mechanism, it welcomes any reform of the judicial self-governance
structures that aim to increase their transparency and accountability,
while preserving their independence and autonomy. However, it considers
it unacceptable if such reforms would 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 and effectively end the independence
of the judiciary and undermine the rule of law.
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST, Mr Daniel MILEWSKI
In the draft resolution, paragraph 3, after the words: "it welcomes any reform of the judicial", delete the following word: "self-governance".
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST, Mr Daniel MILEWSKI
In the draft resolution, paragraph 3, first sentence, replace the words "transparency and accountability" with the following words: "transparency, accountability and democratisation".
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST, Mr Daniel MILEWSKI
In the draft resolution, paragraph 3, second sentence, delete the word: "However".
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 3, after the words: "such reforms would amount to bringing the judiciary", insert the following words: "activity of the courts".
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 3, delete the following words: ",or even worse, under the political control of the ruling majority. This would violate the principle of separation of powers and effectively end the independence of the judiciary and undermine the rule of law".
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, at the end of paragraph 3, insert the following sentence: "Each reform of the judiciary should respect the principle of separation of powers, but also should provide the democratic legitimacy necessary in a democratic society."
4The 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
these reforms in numerous aspects 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 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.
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST, Mr Włodzimierz BERNACKI
In the draft resolution, delete paragraph 4.
5The 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.
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST, Mr Daniel MILEWSKI
In the draft resolution, delete paragraph 5.
6The 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 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 apparent illegal composition on Poland’s obligations under
the European Convention of Human Rights.
7The Assembly lauds the assistance given by the Council of
Europe to ensure that 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 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 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:
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST, Mr Daniel MILEWSKI
In the draft resolution, paragraph 7, at the end of the first sentence, insert the following words: "and welcomes Poland's openness to dialogue on justice reforms."
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST, Mr Daniel MILEWSKI
In the draft resolution, paragraph 7, delete the following sentences:
"However, it notes that numerous recommendations of the 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 these recommendations."
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 7, replace the words "calls upon" with the following word "asks".
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST, Mr Daniel MILEWSKI
In the draft resolution, paragraph 7, replace the words "revisit" with the following word: "consider".
7.1the reform of the Public Prosecutors
Office, the Assembly considers that the ad personam merger of the
posts of Minister of Justice and Prosecutor General, and the extensive
discretionary powers over the prosecution service and the actual
prosecution of individual cases itself 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;
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 7.1, first sentence, replace the words: "considers that", with the following word: "notes".
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 7.1, delete the words "extensive discretionary".
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Daniel MILEWSKI, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 7.1, delete the following words:
"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;"
7.2the 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 Judge members on 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 members of the National Council of the Judiciary;
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Daniel MILEWSKI, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 7.2, first sentence, replace the words "expresses its concern about the fact" with the following word: "notes".
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 7.2, delete the following words: "counter to European rule of law standards,"
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 7.2, replace the words "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 members of the National Council of the Judiciary;"
with the following words:
"according to the principle of the balance of powers;"
7.3the reform of the common courts, the Assembly is deeply
concerned about the excessive and discretionary powers over the
justice system and judiciary conferred to 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 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;
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Daniel MILEWSKI, Mr Marek AST
In the draft resolution, paragraph 7.3, first sentence, replace the words: "is deeply concerned about the excessive and discretionary powers over the justice system and judiciary conferred to the Minister of Justice" with the following words: "notes that the Minister of Justice has powers over the justice system and judiciary".
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 7.3, delete the following sentences:
"This is compounded by the equally excessive powers given to the Minister 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".
7.4the 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 reinstalled
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 are already finalised and whose appeals process has been terminated
in accordance with the law, is of serious concern as it violates
the principle 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 extensive powers
of these two chambers, raise questions about their independence
and their vulnerability to politicisation and abuse. This needs
to be addressed.
Tabled by Mr Jacques MAIRE, Mr Michael Georg LINK, Mr Maurizio BUCCARELLA, Mr Gerardo GIOVAGNOLI, Ms Doris BARNETT, Mr Christian PETRY, Mr Axel SCHÄFER
In the draft resolution, paragraph 7.4, replace the words:
", raise questions about their independence and their vulnerability to politicisation and abuse. This needs to be addressed."
with the following words:
"and the fact that their members were elected by the new National Council of the Judiciary, raise questions about their independance and their vulnerability to politicisation and abuse. This needs to be addressed urgently."
8The Assembly takes note of the recent ruling by the Polish
Supreme Court 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 a
court within the meaning of European and Polish law. It calls upon
the Polish authorities to fully abide by this judgment and to address
without further delay these two fundamental shortcomings in the
Polish legal system.
(If adopted, amendments 23, 40 falls)
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Daniel MILEWSKI, Mr Marek AST
In the draft resolution, delete paragraph 8.
(If adopted, amendment 23 falls)
(Falls if amendment 24 is adopted)
Tabled by Mr Piero FASSINO, Mr Christian PETRY, Mr Martin POLIAČIK, Mr Roberto RAMPI, Mr Gianni MARILOTTI, Mr Krzysztof ŚMISZEK
In the draft resolution, replace paragraph 8 with the following paragraph:
"The Assembly takes note of the recent ruling by the Polish Supreme Court of 5 December 2019, issued on the basis of the guidelines contained in the judgement of the CJEU 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 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, stating 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 considers it 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."
(Falls if amendments 24, 40 are adopted)
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Daniel MILEWSKI, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, at the end of paragraph 8, insert the following sentences:
"However, this judgement is non-binding, according to Polish rules, in contrary to the judgement of Supreme Court - Chamber of Extraordinary Control and Public Affairs, stating that:
- the act of judge’s nomination cannot be put in question;
- the EUCJ judgement of November 19th 2019 does not qualify National Judiciary Council as not independent because of its composition (members elected by the Parliament). So, the independency of National Judiciary Council can be put in question only with relations to particular circumstances existing in the particular proceedings.
This last judgement has been given after EUCJ judgement of 19th November 2019 – and, according, to the Supreme Court – is in line with the aforementioned judgement. It’s binding for all panels of Supreme Court - Chamber of Extraordinary Control and Public Affairs."
Tabled by the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
In the draft resolution, after paragraph 8, insert the following paragraph:
"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 by the Venice Commission of these amendments. 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 urgent 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 to the Council of Europe. In addition, they are at odds with articles 6 and 10 of the ECHR. 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 of the international tribunals they are party to, including those of the CJEU. 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."
9The 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.
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Daniel MILEWSKI, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 9, replace the words "The often-heard argument that" with the following word: "Although".
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 9, delete the following words: "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".
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Daniel MILEWSKI, Mr Marek AST
In the draft resolution, paragraph 9, second sentence, replace the word "those" with the following words: "models existing".
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Daniel MILEWSKI, Mr Marek AST
In the draft resolution, paragraph 9, replace the words “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” with the following words: “Seeking best practice from other countries should always take that aspect into account”
10The Assembly deplores the abuse of disciplinary proceedings
against judges and prosecutors in Poland. It reiterates is 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 started
against judges and prosecutors, on subjective grounds, which subsequently
are neither formally ended nor result in the start of formal proceedings,
deprive the judges and prosecutors concerned of their right of defence
and has a chilling effect on the judiciary. This therefore undermines
its independence. The credible reports that disciplinary investigations
have been started against judges and prosecutors solely for being
critical about the justice reforms, and the fact that disciplinary
investigations have been started 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, is both deplorable
and concerning: it 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 Minster 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 2019, an independent
public inquiry into these smear campaigns and those responsible
for them.
(If adopted, amendments 43, 45 falls)
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, delete paragraph 10.
(Falls if amendment 29 is adopted)
Tabled by Mr Maurizio BUCCARELLA, Mr Michael Georg LINK, Mr Gerardo GIOVAGNOLI, Mr Andreas NICK, Ms Doris BARNETT, Mr Christian PETRY, Mr Axel SCHÄFER
In the draft resolution, paragraph 10, replace the words:
"The credible reports that disciplinary investigations have been started against judges and prosecutors solely for being critical about the justice reforms, and the fact that disciplinary investigations have been started 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, is both deplorable and concerning: it undermines both the independence of, and the public trust in, the judiciary."
with the following words:
"The fact, suggested by credible reports, that disciplinary investigations have been started against judges and prosecutors solely for being critical about the justice reforms, and the fact that disciplinary investigations have been started against judges as a result of decisions they have taken when adjudicating cases in their courts - especially when implementing the guidelines of 19 November 2019 CJEU ruling or requesting an ECJ preliminary ruling - needs to be condemned. In this context, the politically motivated smear campaign, 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, as confirmed by credible reports, is both deplorable and concerning: it undermines both the independence of, and the public trust in, the judiciary."
(Falls if amendment 29 is adopted)
Tabled by Mr Maurizio BUCCARELLA, Mr Michael Georg LINK, Mr Gerardo GIOVAGNOLI, Ms Doris BARNETT, Mr Christian PETRY, Mr Axel SCHÄFER
In the draft resolution, paragraph 10, last sentence, replace "31 March 2019" with "31 March 2020".
Tabled by Mr Maurizio BUCCARELLA, Mr Gerardo GIOVAGNOLI, Mr Andreas NICK, Ms Doris BARNETT, Mr Christian PETRY
In the draft resolution, after paragraph 10, insert the following paragraph:
"The Assembly is concerned by the Amendments to the Law on Common Courts, the Law on the Supreme Court and some other laws, or so-called "disciplinary law" passed through the Sejm on 23 January 2020, which seem to strengthen the political control over judges. These changes are unacceptable and further undermine the independence of the judiciary, as noted in Opinion No. 977/2019 of the Venice Commission."
11The 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.
The 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 Poland, as meant by Article 6
of the European Convention for Human Rights, can be guaranteed for
the defendants.
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 11, first sentence, delete the words: "as well as Poland’s adherence to the rule of law,".
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Daniel MILEWSKI, Mr Marek AST
In the draft resolution, paragraph 11, delete the second sentence.
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 11, third sentence, replace the words "calls upon" with the word: "asks".
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 11, third sentence, replace the words: "the courts under their jurisdiction" with the following words: «the decisions of their Courts under their jurisdiction».
Tabled by Mr Dominik TARCZYŃSKI, Mr Daniel MILEWSKI, Mr Włodzimierz BERNACKI, Mr Arkadiusz MULARCZYK, Ms Iwona ARENT, Mr Marek AST
In the draft resolution, paragraph 11, third sentence, delete the words: "– including with regard to European Arrest Warrants –".
Tabled by Mr Dominik TARCZYŃSKI, Mr Włodzimierz BERNACKI, Ms Iwona ARENT, Mr Daniel MILEWSKI, Mr Arkadiusz MULARCZYK, Mr Marek AST
In the draft resolution, paragraph 11, third sentence, replace the words "whether fair legal proceedings in Poland, as meant by Article 6 of the European Convention for Human Rights, can be guaranteed for the defendants" with the following words: "whether the interests of justice are pursued".
12The Assembly notes that, for part of the Polish population,
the negotiated democratic transition of Poland following the fall
of the Berlin wall, while a model for many, has failed to give closure
for 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, 30 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.
(If adopted, amendment 37 falls)
Tabled by Mr Dominik TARCZYŃSKI, Ms Iwona ARENT, Mr Arkadiusz MULARCZYK, Mr Marek AST, Mr Daniel MILEWSKI
In the draft resolution, paragraph 12, first sentence, replace the word "following" with the following words: "which contributed to".
(Falls if amendment 36 is adopted)
Tabled by Mr Marek BOROWSKI, Mr Killion MUNYAMA, Ms Kamila GASIUK-PIHOWICZ, Ms Barbara NOWACKA, Mr Bogusław SONIK, Mr Krzysztof ŚMISZEK
In the draft resolution, paragraph 12, first sentence, replace the word "following" with the word "preceding".
13The Assembly is concerned about the fact that the harsh and
intolerant political discourse in the Polish political environment
has created an increasingly permissive climate for and has fostered
a perception of impunity for hate speech and intolerant behaviour
against minorities and other vulnerable, groups. This is unacceptable
and should be addressed by the authorities.
14With 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 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 a genuinely impartial and professional public broadcasting
system is established in Poland.
15The 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 increasingly being selective and
based on ideological proximity.
16The legal reforms and their detrimental effects on the rule
of law 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 invites its Monitoring
Committee to consider expediting the periodic review report on Poland
in the framework of monitoring of membership obligations of all
member states of the Council of Europe.
(If adopted, amendments 38, 41 falls)
Tabled by Mr Stefan SCHENNACH, Ms Zita GURMAI, Mr George PAPANDREOU, Ms Sibel ARSLAN, Mr Krzysztof ŚMISZEK
In the draft resolution, paragraph 16, replace the words:
"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 invites its Monitoring Committee to consider expediting the periodic review report on Poland in the framework of monitoring of membership obligations of all member states of the Council of Europe."
with the following words:
"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."
(If adopted, amendment 38 falls)
(Falls if amendment 39 is adopted)
Tabled by Mr Piero FASSINO, Mr Michael Georg LINK, Mr Maurizio BUCCARELLA, Mr Gerardo GIOVAGNOLI, Ms Doris BARNETT, Mr Christian PETRY, Mr Axel SCHÄFER
In the draft resolution, paragraph 16, replace the words:
"The Assembly therefore invites its Monitoring Committee to consider expediting the periodic review report on Poland in the framework of monitoring of membership obligations of all member states of the Council of Europe."
with the following words:
"The Assembly therefore decides to open the monitoring procedure in the light of the fact that Poland has insufficient checks and balances."
(Falls if amendments 39, 41 are adopted)
Tabled by Mr Frank SCHWABE, Ms Ria OOMEN-RUIJTEN, Mr Stefan SCHENNACH, Ms Doris BURES, Ms Petra STIENEN, Ms Rósa Björk BRYNJÓLFSDÓTTIR
In the draft resolution, replace the last sentence of paragraph 16 with the following sentences:
"Also concerned by the compliance of these reforms with the Convention on Human Rights, in particular article 6 and article 10, the Assembly resolves to assess the situation during the June 2020 part session. The Assembly will assess progress on the recommendations made by the Venice Commission and by this Assembly as contained in this resolution. The Assembly resolves to return to this issue during the June 2020 part session to assess the progress made with implementing the recommendations made by the Assembly in this resolution and in particular with regard to:
- the reform of the prosecutor's office such that it becomes independent of political interference;
- the reform of the National Council of the Judiciary, making sure that it is a genuinely independent institution and its members are appointed in line with European standards;
- the reform of the Common Courts and the Supreme Court;
- the implementation of all judgements by the European Court of Justice;
- the withdrawal or reversal of the controversial amendments on the Law on the Common Courts, the Law on the Supreme Court, as well as other laws adopted by the Sejm on 23 January 2020.
In the unfortunate event that no or little tangible progress has been made on implementing the Assembly's recommendations by June 2020, the Assembly reserves the right to consider opening a full monitoring procedure with regard to Poland at that time."
