Top EU Court Casts Doubt on Rule of Law in Poland

European Court of Justice 'removes presumption' that all is well in the EU's largest ex-communist country
July 27, 2018 Last Updated: July 29, 2018

WARSAW–Courts across the European Union will now get to weigh in on whether Poland’s judicial purge undercuts the rule of law and precludes fair trials.

In a landmark decision Wednesday, the EU’s top court ruled that judges considering extradition requests by Warsaw must first determine the likelihood that a given suspect would receive a fair trial in Poland.

“A judicial authority called upon to execute a European arrest warrant must refrain from giving effect to it if it considers that there is a real risk that the individual concerned would suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial on account of deficiencies liable to affect the independence of the judiciary in the issuing Member State,” the European Court of Justice (ECJ) said in its ruling.

‘Terrible news’

Dariusz Zawistowski, a Supreme Court judge, called the ECJ decision “terrible news, because it means that any court in any European Union country will now have the authority to consider whether the rule of law is being respected in Poland.”

The ECJ ruling came in response to a decision by Ireland’s high court to refuse the extradition of a Polish national accused of drug crimes, citing government interference in the independence of the judiciary and concerns the suspect might not receive a fair trial.

“In reality, it means the presumption that everything is fine in Poland, is gone,” said Krystian Markiewicz, a representative of Iustitia, a judicial association. “Other countries will now have an excuse to show what the situation in the Polish judicial system looks like, and it looks bad.”

Zbigniew Ziobro, Poland’s justice minister, called the Irish court’s referral to the ECJ a “fail” and downplayed the significance of the ruling, saying on Wednesday it was anyway “close to the point of view of Poland.”

“First, at no point in its ruling does the ECJ determine a breach of the rule of law in Poland. Second, despite what the Irish court wanted, the ECJ did not agree to an automatic rejection of the extradition,” Ziobro said.

‘Cleaning’ the judicial house

But it is a different kind of bad, namely that of a judiciary allegedly tainted by the corrupt vestiges of communism, that the ruling Law and Justice party (PiS) said it’s trying to purge from Polish courts through wave after wave of deep-cutting legislation.

Since coming to power in 2015, party head and de facto behind-the-scenes shot-caller Jaroslaw Kaczynski has pressed ahead with a controversial judicial overhaul, seeing it as the lynchpin to sweeping reforms in Poland.

“If we don’t reform the judiciary, all the other reforms will make little sense, because sooner or later these would be overturned or negated by the kind of courts that we have now,” Kaczynski said in an interview with Sieci, a Polish weekly, on July 9.

Defiant judges

Lawyer Sebastian Kaleta, former Ministry of Justice spokesman, told Polska The Times on July 27 that the new laws aim to bring in line defiant judges.

“The need to amend certain regulations is due to the fact that some judges, acting primarily out of political impulses, are putting up resistance by not following newly passed legislation,” he said.

Kaleta likely has in mind Supreme Court chief Malgorzata Gersdorf, whose constitutional six-year term was terminated by a new law that has cut 22 judges from Poland’s top court by forcing them into early retirement.

Polish Supreme Court Chief Justice Malgorzata Gersdorf attends a demonstration in support of the Supreme Court judges in front of Supreme Court in Warsaw, Poland, on late July 3, 2018. (Janek Skarzynski/AFP/Getty Images)

Gersdorf, who has become a symbol of the fight for judicial independence in Poland, refuses to step down.

The newest bill, signed into law on Thursday by President Andrzej Duda, a PiS ally, is the newest move to get rid of Gersdorf. It effectively gives the government the power to appoint the next Supreme Court chief.

Widespread protests

Thousands of people staged protests across Poland following Duda’s signing.

People collect pens as they gather next to the presidential palace during the Chain of Lights protest against judicial overhaul in Warsaw, Poland July 26, 2018. (Kacper Pempel/Reuters)

Crowds gathered outside the presidential palace in Warsaw, chanting “Shame.” Many held candles and pens, referring to Duda’s readiness to undersign the newly passed legislation. They shouted “Break the pen” and “You will go to prison.”

Since PiS won power in 2015, dozens of judges have been dismissed from the Constitutional Tribunal and the National Judiciary Council, which decides judicial appointments, and recently the Supreme Court.

The European Commission is running an unprecedented rule of law probe that could lead to the suspension of Poland’s voting rights in the 28-member bloc.

Poland is the largest former communist state in the European Union.