In a follow up assessment published today on corruption with respect to members of parliament, judges and prosecutors, the Council of Europe’s Group of States against Corruption (GRECO) determines that Poland has implemented seven of 16 recommendations and only one of six recommendations for a more recent “ad-hoc” procedure addressing specific judicial reforms (2016-2018).
Given the overall very low level of compliance with recommendations as “globally unsatisfactory” within the meaning of Rule 31, paragraph 8.3 of the Revised Rules of Procedure, GRECO asks the Head of the Polish delegation to provide a report on the progress in implementing the pending recommendations at the latest by 31 December 2020.
For MPs, the level of implementation remains unchanged since a previous compliance report from 2014, with only one of six recommendations having been implemented. Given the importance of these recommendations – from making more transparent interactions by parliamentarians with lobbyists and other third parties who seek to influence the legislative process, to improving ethics guidance regarding conflicts of interest – GRECO urges more “determined action” be taken to address these remaining recommendations, following the October parliamentary elections this year.
With respect to prosecutors, GRECO finds it “regrettable” that the National Prosecutor’s Office is still only considering ways to establish dedicated counselling on questions of ethics and conduct, without having found itself in a position to give general guidance on conflicts of interest and related issues to complement the ”Collection of Ethical Principles”. For both judges and prosecutors, further amendments to the asset declaration system appear to be the subject of a draft law on transparency of public administration, but this process is still only at an early stage.
Particularly with respect to judges, following the heavily criticised judicial reforms (2016-2018) in Poland – and GRECO’s decision to apply its ad-hoc procedure (Rule 34) – six further recommendations to Poland had been added in the Addendum to the Evaluation Report through the adoption of the Rule 34 Report.
Following up on these recommendations, GRECO welcomes that provisions on early retirement of Supreme Court judges (and the possibility to have their tenure prolonged by the President) were repealed, something GRECO had considered a pressing concern. GRECO is pleased also that the Supreme Court judges who had retired under the provisions of the 2017 amendments to the Law on the Supreme Court have been reinstated.
Nevertheless, measures taken to address any of the other recommendations of the Rule 34 Report remain “insufficient”. A government analysis of the jurisprudence of the Supreme Court falls short in several respects of an actual reconsideration of the establishment of the disciplinary chamber and extraordinary appeals chamber at the Supreme Court, GRECO determines.
Furthermore, no action has been taken to amend provisions to elect members of the National Council of the Judiciary. In its current composition, the National Council does not meet Council of Europe standards. No measures have been taken to reduce the involvement of the executive in the internal organisation of the Supreme Court, to amend disciplinary procedures applicable to Supreme Court judges, to amend the procedures for appointing and dismissing presidents and vice-presidents of ordinary courts or to amend disciplinary procedures applicable to judges of ordinary courts. As stated in the Rule 34 Report, these provisions, taken together, enable the legislative and executive powers to influence the functioning of the judiciary in a critical manner, thereby significantly weakening the independence of the judiciary in Poland. GRECO therefore urges the Polish authorities to address the concerns raised by these five pending recommendations of its Rule 34 Report.
While GRECO considers all recommendations of the Rule 34 Report of importance, it is most concerned about disciplinary proceedings against judges. GRECO took note of the allegations of disciplinary proceedings being misused to exert pressure on judges (submitting requests for preliminary rulings to the Court of Justice of the European Union, for certain politically undesired rulings, for criticism of the government’s judicial reforms, or for being present at events where such criticism was expressed). The current system – with the strong involvement of the executive in these proceedings (be it the Minister of Justice in disciplinary proceedings of ordinary judges or the President when it comes to the Supreme Court) – leaves judges increasingly vulnerable to political control, thereby undermining judicial independence. GRECO strongly urges the Polish authorities as a matter of priority to amend the disciplinary procedures applicable to judges, to exclude any potential undue influence from the executive powers therein.