Decisive phase of the fight for the rule of law in Poland: open letter to the European Commission

29 April 2020 | Author: Martin Mycielski

The next few days and weeks will determine the fate of the Supreme Court, a key institution in the Polish legal system that is currently upholding the independence of the judiciary. In 2018 the Supreme Court was attacked by two foreign bodies, the so-called Disciplinary Chamber (ID) and the Chamber of Extraordinary Control and Public Affairs (IKNiSP). Contrary to their names, they do not consist of independent judges, but of party nominees loyal to the current parliamentary majority and the Law and Justice government.

If energetic steps are taken by the European Commission and the Court of Justice of the European Union (CJEU), we can stop the ruling party from taking control of the SC by means of pseudo-judges of the ID and IKNiSP – but this requires political will and determination. The CJEU challenging the status of IKNiSP may also allow the SC to make a politically independent decision on the validity of the so-called presidential elections, which – despite huge controversy and public opposition – the Law and Justice Party government wants to hold in May 2020.

These aspects, as well as the need for the EC to take action on the so-called “Muzzle Law”, which introduces an outrageous disciplinary regime against judges who defend their independence, were highlighted in an open letter to EU Commissioners responsible for upholding European values and respecting the rule of law in member states, published yesterday.

“The inaction of the European Commission in light of the actions of the ruling party is incomprehensible to us. We had great hopes for the successor to Frans Timmermans, Věra Jourová, and Justice Commissioner Didier Reynders, with whom we met last December, along with persecuted judges and prosecutors (including Prosecutor Ewa Wrzosek). They both understood the seriousness of the situation, and especially the consequences of the so-called “muzzle law” for the independence of the Polish judiciary” – said our colleague, Martin Mycielski, who coordinated our activities in this area.

That’s why we asked, first – last Wednesday – directly, and yesterday, 29 April 2020, with an open letter to EU Justice Commissioner Didier Reynders and Vice President Věra Jourová, for immediate action in these cases.

We were pleased to hear yesterday that a week after receiving our letter, the Commission took the first step recommended by us by initiating anti-infringement proceedings against the Polish authorities in connection with the so-called “Muzzle Law”, which drastically interferes with the independence of judges.

But, as Martin adds, there are more problems: “The above issues are obviously compounded by the recent, illegal actions of the Constitutional Tribunal, or the authorities’ ignoring of the CJEU ruling on the neo-National Judiciary Council of 19 November 2019. We believe that it is necessary to impose financial sanctions on the Polish authorities because we no longer see any other way for the Law and Justice government to start respecting EU law instead of leading us towards a Polexit”.

#RuleofLaw breakdown in #Poland: Letter from several judicial associations, NGOs & yours truly led by @mycielski @ODFoundation to @VeraJourova and @dreynders sent on 22 April 2020 now available here https://t.co/DKF81MbKqI
— Laurent Pech (@ProfPech) April 29, 2020

The letter was signed by 18 professors of law and constitutionalists from leading world universities, 4 Polish judicial and prosecutorial organisations – headed by Themis and Lex Super Omnia associations – and 5 NGOs and their representatives, including Professor Laurent Pech from the University of Middlesex in London, Professor Wojciech Sadurski from the University of Sydney, Professor R. Daniel Kelemen from Rutgers University or Professor Paul Craig from the University of Oxford.

The full version of the letter was published on the German legal portal Verfassungsblog, where individuals and organisations interested in expressing their support can join the signatories of the letter.

Our action has already been publicised by Gazeta Wyborcza, POLITICO Europe, Onet.pl (with excerpts from an interview with Martin), RuleOfLaw.pl, Osiatyński Archive and OKO.press.

Yesterday we received a preliminary answer with words of support and thanks from the office of Vice President Věra Jourová. As soon as we receive a formal reply, specifically relating to our questions and requests, we will also publish it on our website as well as in social and traditional media.

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