Amendments passed late last year to Poland’s judiciary, including laws on the National Council of the Judiciary (LNCJ), to the Supreme Court (LSC) and to the Law on Ordinary Courts, do not comply with Council of Europe anti-corruption standards, concludes a report published today by the Council of Europe’s Group of States against Corruption (GRECO).
Similar critiques had been levelled already by the Council of Europe’s Venice Commission, but the GRECO report is a first ever “Ad hoc procedure,” triggered by “exceptional circumstances” after GRECO obtained information of “serious violations” of anti-corruption standards.
The 15-page GRECO report is preliminary, pending the final outcome of a more detailed re-assessment expected to be published later this year and which would take into account more recent Polish amendments to its judicial reform announced last week. It focuses on certain aspects of the law of 8 December 2017, amending the LNCJ, and which entered into force in January 2018, and the law of 8 December 2017, amending the LSC, which will enter into force on 2 April 2018.
Key findings by GRECO include excessive legislative influence in appointing members of Poland’s National Judiciary Council. GRECO recommends that at least half the members of this Council, whose central role is to appoint judges, be elected by their peers – and not just by the Polish Parliament.
GRECO is concerned about the tenure of Supreme Court judges. The report criticizes a de facto “re-appointment system,” given the combination of a lower retirement age – which reportedly affects a large number of sitting Supreme Court judges – and the power of the Polish President to prolong their mandates. Security of tenure is an essential safeguard against undue influence over judges and the judiciary and for their independence. GRECO recommends that the new retirement age is not applied to currently sitting judges, in combination with provisions allowing the executive to extend the tenure of such judges. Similarly, with respect to new Supreme Court judges, GRECO calls on possible extensions of their tenures beyond retirement age to be free from political influence.
GRECO also calls on Poland to amend disciplinary procedures against Supreme Court judges in order to exclude potential undue influence from the legislative and executive powers in these procedures.
The report furthermore criticizes excessive discretionary powers of the Minister of Justice vis-à-vis the judiciary, with regard to such issues as case assignment and the method for random case allocation. Such concerns are compounded by the fact that under the new Law on the Public Prosecutor’s Office, as amended in 2016, the Office of the Public Prosecutor General has been merged with that of the Minister of Justice and the powers of the Public Prosecutor General/Minister of Justice vis-à-vis the prosecution service have increased.
Because of these and other critiques in the Ad-Hoc report, GRECO stresses that basic principles of the judicial system have been affected “in such a critical way and to such an extent” that previous assessments of the judiciary by GRECO are no longer valid in crucial parts. GRECO will re-assess Poland under the theme “Corruption prevention in respect of judges” at one of its forthcoming plenary meetings, tentatively scheduled for June this year.
