Advocate General Michal Bobek considers that the Polish legislation, which gives the Minister of Justice discretionary powers to second judges to higher courts, does not guarantee the independence of the Polish judiciary and is contrary to the Treaty on European Union, in his Opinion delivered on Thursday 20 May (Joined Cases C-748 to 754/19).
In seven criminal proceedings, the Warsaw Regional Court is asking the Court of Justice of the EU about the compatibility with Articles 19 (judicial protection) and 2 (fundamental values) of the Treaty on European Union of the provisions in Polish law which give the Minister of Justice, who is also the Prosecutor General, the power to second judges to higher courts for an indefinite period of time and to revoke this secondment at any time.
The panels of judges called upon to examine the cases referred to the referring court include a judge from a lower court seconded by decision of the Minister of Justice. And some of these seconded judges also act as deputy disciplinary officers for judges of the ordinary courts.
In his conclusions, Mr Bobek considers the Polish measures in question to be highly problematic with regard to the requirement of independence of the judiciary.
EU law does not preclude Member States from resorting to the practice of temporary secondment of judges and the Minister of Justice can play a decision-making role in this respect provided that the legal procedures have been respected and the appropriate authorisations have been granted.
However, according to the Advocate General, the Polish measures at issue do not allow for a minimum of transparency and accountability. Indeed, decisions on the secondment of judges are not taken on the basis of criteria known in advance nor are they duly motivated, in order to allow a form of control.
Another major concern, according to Mr Bobek, is that the delegation is for an indefinite period of time and that the Minister of Justice can terminate it at any time.
Another source of concern is the dual role of the Minister of Justice, who is also a public prosecutor and thus has authority over the entire public ministry of justice. With regard to the secondment of judges, such a situation allows the superior of a party to a criminal proceeding (the prosecutor) to partially compose the trial panel that will examine cases brought by subordinate prosecutors. Tempted by the possibility of being rewarded with a secondment to a higher court (better career prospects, higher remuneration), some judges in lower courts might be encouraged to rule in favour of the prosecutor or, more generally, in favour of the minister.
In turn, seconded judges could be discouraged from acting independently in order to avoid the risk of having their secondment unilaterally revoked.
Finally, according to the Advocate General, the situation described above is aggravated by the fact that some seconded judges also hold a disciplinary function. Judges may be reluctant to disagree with colleagues who may one day initiate disciplinary proceedings against them. And these judges exercising a disciplinary function could be seen as exercising “diffuse control and supervision” within the panels and courts to which they have been seconded.
As a result, in Mr Bobek’s view, the Polish rules at issue do not offer sufficient protection to give litigants reasonable assurance that the judges sitting on the bench are not subject to external political pressure and do not have a personal interest in the outcome of the case.
See the conclusions: https://bit.ly/3hJZSnM (Original version in French by Mathieu Bion)