You may wonder why I draw attention to the suspension of Joanna Hetnarowicz-Sikora, a judge at the district court of Slupsk, as I wrote about the attack of the Polish government on the independence of the judiciary before. After all, by now, anyone following European news during the last few years will be well aware of this ongoing saga in general terms. Poland is subverting the Rule of law by trying to bring the judiciary to heel. However, the news from Slupsk, a small city in the Pomeranian Voivodeship in northwestern Poland, may not reach the international media. And that is a shame, as the legal tragedy happening there should strengthen the resolve of the European Union to put an end to the erosion of the Rule of law in Poland.
Joanna Hetnarowicz-Sikora was suspended by the Polish ministry of Justice for insisting that a defendant or a party to a civil case has the right to be judged by an independent tribunal established by law. As the reader of these blogs will know, the European Court for Human Rights, the European Court of Justice, and I may add, common sense have established that the independence of the reconstituted National Council of the Judiciary (NCJ) is open to doubt, and therefore its decisions regarding the nomination of judges. Thus, judge Hetnarowicz-Sikora acted properly, in conformity with European law. In its present form, this NCJ is just an emanation of the present majority of the Sejm. The majority of the Sejm elects its favoured members of the NCJ, opening the question whether the NCJ will act in an independent way in nominating judges, thus casting doubt whether a judge nominated in this fashion will be able to act independently.
On top of this judges who do not toe the Ministry of Justice’s line are liable to be cited to defend themselves in front of a Discplinary Chamber, which itself is open to questions as to its independence. This Disciplinary Chamber which answers only to itself, and is empowered to judge its own members, has peculiar regulations. It is not obliged to come to a judgement within a reasonable time, it can reopen cases in which it already passed judgment, it begs the question “quis custodiet ipsos custodes” and breaks with the time-honoured principle of “non bis in idem”. It is not the Supreme Court which controls the Disciplinary Chamber, but the Chamber itself. It makes it possible to harrass judges, as it just can leave them dangling without a judgment or allow for prosecution a second time for the same event.
The suspension order of Joanna Hetnarowicz-Sikora was particularly brutal, served in court,and precluded that she would bring fourteen on-going cases to its proper end. This in itself may infringe on the principle that justice should be provided in a timely manner. She is not the first, and I fear, not the last judge, who gets suspended for questioning the nomination of a member of the Court by the reconstituted National Council of Judges in accordance with EU law and the European Court for Human Rights. We must now fear thahttps://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2020)017-et she will be called to defend herself before a court, a Disciplinary Chamber, which in its turn does not meet the requirements of an independent instance.
The Venice Commission’s report is clear as to what happened https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2020)017-e: summerized:
1. The stated goal of the 2017 reform was to enhance the democratic accountability of the Polish judiciary. However, the reform jeopardised the judicial independence and “enabled the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice”.
2. The judicial community in Poland cannot delegate representatives to the National Council of the Judiciary (the NCJ) anymore, and hence its influence on recruitment and promotion of judges. Before the 2017 reform 15 (out of 25) members of the NCJ were judges elected by their peers. Since the 2017 reform those members are elected by Parliament. Taken in conjunction with the immediate replacement, in early 2018, of all the members appointed under the old rules, this measure led to a far reaching politicisation of the NCJ;
3. Changes in the method of nomination of candidates to the position of the First President of the Supreme Court deprived the participation of the judges in the selection procedure of any meaningful effect and put the decision in the hands of the President of the Republic. At the same time, the Minister of Justice (who is, in the Polish system, also the Prosecutor General) obtained the power to appoint/dismiss court presidents of the lower courts at his discretion during the transitional period of six months.
4. In 2017-2018 the Minister of Justice replaced over a hundred court presidents and vice-presidents. After this period, removal of court presidents remained in the hands of the Minister, with no effective checks attached to this power. The Minister of Justice also obtained “disciplinary” powers vis-à-vis court presidents, and presidents of higher courts, in turn, have now large administrative powers vis-à-vis presidents of lower courts. That created a hierarchical structure of subordination within the judiciary, in administrative matters, with the Minister of Justice/Prosecutor General at its top;
5. These measures were coupled with the reinforcement of the mechanisms of control within the judiciary: two new chambers within the Supreme Court were created: the Disciplinary Chamber and the Chamber of Extraordinary Review and Public Affairs (the Extraordinary Chamber). These new chambers were staffed with newly appointed judges, selected by the new NCJ, and entrusted with special powers – including the power of the Extraordinary Chamber to quash final judgments taken by lower courts or by the Supreme Court itself by way of extraordinary review, or the power of the Disciplinary Chamber to discipline other judges. That put these new chambers above all others and created de facto a “Supreme Court within a Supreme Court”.
On top of these changes the bad news is as well that judges are neiter allowed to ask prejudicial opinions from the European Court of Justice anymore, therefore endangering the uniformity of the application of European law, nor applying European law if the newly constituted Polish Constitutional Tribunal considers the European law not in conformity with the Polish Constitution. The Polish Constitutional Tribunal has already decided that the matter of the independence of the Judiciary is not a European Union matter…..
Poland should realise that the European Union, and the European Commission in particular, has a duty to uphold European law, and that breaking European law has a price.