On Friday 8 December, the lower house of the Polish parliament – the Sejm – passed two draft laws amending the composition and the functioning of the National Council of the Judiciary (NCJ) and the Supreme Court just as the Council of Europe Venice Commission was publishing a highly critical opinion on these texts.
The constitutional law experts on the commission, officially known as the European Commission on Democracy through Law, did all they could to make their views known before the texts were adopted but the Sejm moved quickly. Criticising this action, Human Rights Commissioner Nils Muiznieks immediately took to social media to call on the Polish authorities to comply with the recommendations of the Venice Commission in subsequent stages of the legislative process.
“… these laws will further undermine the independence of the judiciary by subordinating it to the executive”, complained Muiznieks, criticising the erosion of the rule of law in Poland.
His fears are shared by the Venice Commission experts who, in the recommendations, call for NCJ judges to continue to be elected by their peers and not by the Sejm in order to prevent deep politicisation of the body.
They believe, too, that the establishment of two new chambers within the Supreme Court – a Disciplinary Chamber and an Extraordinary Chamber – is inappropriate as they are composed of newly appointed judges with special powers which place there are well above other jurisdictions.
The Venice Committee also criticises the system of “special scrutiny” of final judgements contained in the draft law as being a potential threat to the stability of Polish judicial order, and the lowering of the age of retirement with immediate effect which is an attack on the individual rights of the judges and endangers the independence of the judicial system as a whole.
The opinion also relates to the amendments – already adopted – to the law on ordinary courts. These amendments give too much power to the justice minister on the nomination and dismissal off court precedents, it is regretted.
The 2016 law on public ministry was the subject of a second Venice Commission opinion published on the same day. This opinion, every bit as critical, slams the merger of the office of the minister of justice and that of the public prosecutor general. The move is condemned but, were it to be maintained, it is recommended that “the competence of the public prosecutor general (i.e. the minister of justice) to intervene in individual cases should be excluded”. (Original version in French by Véronique Leblanc)