Poland: Senate should reject “death knell” for rule of law

Following the news that the lower house of the Polish parliament has passed a law granting the Minister of Justice extensive new powers, including the ability to dismiss all existing members of the country’s Supreme Court, Gauri Van Gulik, Deputy Europe Director at Amnesty International, said: “Judicial independence in Poland has suffered yet another damaging blow with today’s decision by the Sejm. Much of the country’s justice system is already effectively in the hands of the Law and Justice Party, and the Supreme Court represents a last vital bastion of independence. If the Senate passes the bill, it would sound the death knell for judicial independence and fair trial rights in Poland.

“Should this progress through the Senate, it will be even more glaringly evident that Poland is at clear risk of breaching its human rights responsibilities. The EU must follow through on its strong words and trigger Article 7.”

Background

The amendment of the Law on the Supreme Court entered the first hearing in the lower chamber Sejm on 18 July and was passed on 20 July. It will now be heard by the upper chamber, the Senate. If passed by the Senate, it will need to be signed into law by the President.
If this amendment enters into force, the day after all current Supreme Court judges will have to retire. The Minister of Justice, will also have the power to decide to grant exceptions to this rule and extend the tenure of some of the judges. The Minister will gain new competence within the disciplinary proceedings of the Supreme Court judges.

The amendment introduces the following main changes in the powers of the Minister of Justice which raise particular concerns:

1. It would grant the Minister the power to terminate the term of judges on the Supreme Court;
2. The Minister would also have the power to form the “new” Supreme Court after the termination of terms of the current Supreme Court members
3. The Minister will gain new competence within the disciplinary proceedings of the Supreme Court judges, including the possibility to question the decisions of the Supreme Court taken in previous disciplinary proceedings.

Two other laws – the Law on the National Council of Judiciary and the Law on Common Courts – that undermine judicial independence have been passed by both chambers of the Polish parliament and are awaiting sign-off by the President.
On 18 July, Amnesty International delivered a public statement on all of these proposed amendments. It can be accessed via the link here: https://www.amnesty.org/en/documents/eur37/6753/2017/en/
Article 7(1) of the Treaty of the European Union allows the European Council to issue a warning to member states where there is “a clear risk of a serious breach” of the respect for the rule of law and human rights.