Rule of law: despite apparent signs of progress Poland and Romania remain serious causes for concern

Polly Botsford

Poland’s ruling Law and Justice party proposed on 21 November an amendment to reverse a law requiring supreme court judges to retire at 65 instead of 70, following the decision of the Court of Justice of the European Union (CJEU) on the law in mid-October.

However, Monika Frackowiak, a district judge in Poznan, describes the reversal as a ‘smokescreen’, intended to hide other changes made to the Polish judiciary. ‘The Law and Justice party will achieve what they want to anyway,’ Frackowiak tells Global Insight. ‘This law is a very small piece of a whole movement.’

Poland’s justice minister, Zbigniew Ziobro, claimed that in reversing the law the government was ‘fulfilling [its] obligations’ following the CJEU verdict. The amendment means that over twenty justices of the Polish Supreme Court who had been forced to retire can now return to work.

For Frackowiak, the victory is an important one and shows the Polish government didn’t feel strong enough to resist the European Commission. She adds, however, that ‘we are only talking about twenty people. There is still a lot of damage to the judiciary.’ This ‘damage’ includes what Frackowiak calls ‘farcical’ disciplinary proceedings against many judges.

Tomasz Wardynski, Secretary-Treasurer of the IBA Senior Lawyers Committee and a partner at Wardynski & Partners, agrees that the reversal of the law is one element ‘of a much wider campaign of placing the Polish judiciary under the ruling party’s political control.’

At the centre of this problem is the National Council of the Judiciary (NCJ), the body that nominates judicial candidates. Wardynski explains that the NCJ is now ‘controlled’ by people nominated by the PiS. ‘Even though the parliament backtracked on the retirement age, the ruling party now controls two newly created supreme court chambers, the Disciplinary Chamber and the Extraordinary Control and Public Affairs Chamber, giving it wide-ranging powers,’ he notes.

Even though the parliament backtracked on the retirement age, the ruling party now controls two newly created supreme court chambers, giving it wide-ranging powers

Tomasz Wardynski
Secretary-Treasurer, IBA Senior Lawyers Committee

Poland is currently subject to proceedings under Article 7 of the Treaty of European Union, instigated by the European Commission (EC) in 2017 on the grounds of a ‘systemic threat to the rule of law’ in Poland. The procedure under Article 7 is a process for dealing with an alleged violation by a Member State of one of the core values of the European Union, including the rule of law.

These proceedings are unlikely to be impacted by the reversal of the retirement law, argues Wardynski, as ‘[the reversal] does not answer the other concerns of the EC’.

A case in the Irish High Court was seen by some as having the potential to impact on the situation in Poland. In the case, the court considered whether Artur Celmer, a suspected drugs trafficker due to be extradited to Poland under the European Arrest Warrant, could not be sent on the grounds that the rule of law in Poland had been ‘systematically damaged’ and thus Celmer could not be guaranteed a fair trial.

Ultimately the Irish High Court did not find, on the particular facts of the case, that Celmer’s right to a fair trial had been jeopardised. Cillian Bracken, a blogger on the public law site Verfassungsblog, tells Global Insight this might not be the end of the road, however, as ‘it remains open to Celmer to argue in the domestic courts in Poland and at the European Court of Human Rights that there is a risk of an unfair trial.’

The EC published in November 2018 a report relating to the rule of law in another EU Member State, Romania. The report was highly critical in its assessment of progress on rule of law matters in Romania, which has been under close surveillance by the EC through a monitoring mechanism since the country’s accession to the EU.

Poland's Law and Justice party logo

Frans Timmermans, the Vice-President of the EC, stated in the report that ‘Romania has not only stalled its reform process, but also re-opened and backtracked on issues where progress was made over the past ten years’.

The timing of the EC report is significant since Romania is due to take on the presidency of the EU in January 2019.

Concerns have arisen since 2016 in particular, when the Romanian Social Democratic Party secured a majority in the country’s parliamentary elections. The Party is effectively led by Liviu Dragnea, who is barred from formally taking the lead because of his conviction for election fraud.

On one occasion Romanians have taken to the streets to protest against their government’s attempt to decriminalise lower level corruption, which would have resulted in the reversal of convictions of officials. The abrupt dismissal of the chief prosecutor of the National Anti-Corruption Directorate (DNA) has also caused concern.

Timmermans concluded that the EC’s initial recommendations, put forward in 2017, are ‘no longer sufficient’ and that further changes are needed in Romania. He suggested that these include the immediate suspension of various appointments and dismissals of judges, and that a proper process to appoint a new chief prosecutor of the DNA is instigated.

Gianluca Esposito, Executive Secretary of the Group of States Against Corruption (GRECO), the organisation affiliated to the Council of Europe and which has also made recommendations to Romania, says the role of chief prosecutor is critical: ‘Appointments should not be dependent on the politics of the day. The role needs to be functionally independent. Dismissals, appointments, they should be both transparent and based on objective criteria.’

‘We saw this coming in 2016 and through 2017,’ Esposito says of the situation in Romania. ‘The procedures for appointment and dismissals of the most senior prosecutorial functions were not as transparent and based on objective criteria as we expected, [and] legislation was rushed through parliament. Romania had made steady progress but now it is stalling, and to some extent, regressing.’

Polly Botsford is a freelance journalist and can be contacted at polly@pollybotsford.com