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Consiglio Superiore della Magistratura
Resolution approved by the Consiglio Superiore della Magistratura on 6th December 2017:
«Considering that the CSM, with resolution of 20 July 2017, in accordance with the positions taken by the European Network of Councils for the Judiciary and by the Consultative Council of European Judges, had represented as follows:
“Both the lower and the upper house of the Polish Parliament last week approved two reforms in clear contrast with the Rule of Law.
The first law which has been approved is the reform of the Polish Judges’ Council which should be divided into two assemblies.
The first assembly should be formed by 15 judges appointed by Parliament, while the second one should include six members from the Polish Parliament, the Minister of Justice, a representative of the Head of State, the President of the Supreme Court and the President of the High Administrative Court.
In order to be effective, all resolutions by the Judges’ Council will have to be adopted by both assemblies sitting separately.
The second law approved by Parliament gives the Minister of Justice the power to substitute Court Presidents within the next six months after the entering into force of this new law.
For the entering into force of the two laws, the last step needed is the signature of the President of the Republic.
It is absolutely evident that these laws would cause prejudice to judicial independence.
Furthermore, a draft law has recently been introduced in Parliament which involves giving the Minister of Justice the discretionary power to designate those judges of the Supreme Court who may remain in active service or must retire, as well as the power to control the actual organisation of the Court.
This would be a further and just as evident vulnus to judicial independence.
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On 17 July 2017, the Executive Board of the ENCJ (European Network of Councils for the Judiciary), in its statement (Annex 1), classified the situation as very serious, using the following words which this Council endorses:
It is imperative that judicial independence is respected by governments. A democratic system based on the Rule of Law can only properly function if judges’ independence is safeguarded
… judicial independence is critically important in maintaining and enhancing mutual trust between judicial authorities in the EU. Judicial independence also plays a central and indispensible role in ensuring respect for EU law.
For that matter, in its statement of 14 June, this Council had already expressed similar concerns on the situation in Poland, on the absolute necessity to comply with the Rule of Law and on judicial independence.
Similarly to the ENCJ, also the CCJE (Consultative Council of European Judges), in its document published on 17 July as well, deemed its duty to stigmatise the clear damage to the principle of separation of powers, the Rule of Law and judicial independence that the Polish legislation is about to cause. Consequently, the CCJE deemed necessary to strongly recommend the Polish authorities to avoid contrasting the European standards as regards the independence of the judicial system and to refrain from making effective the abovementioned laws (Annex 2);
with note of 5 December 2017, the President of the European Network of Councils submitted to the Members and Observers of the mentioned Network a further “Opinion of the Board” on the latest draft act concerning the organization of the National Judicial Council of Poland (Krajowa Rada Sadownictwa – the ‘KRS’) (Annex 3), representing that the Polish Parliamentary Justice Committee has adopted amendments to the law on the KRS, without any consultation with the latter; these amendments are expected to be adopted by the Parliament within the next days; specifically, the amendments concern the procedure for electing the 15 judicial members of the KRS by Parliament on the proposal of 2,000 citizens or on the proposal of 25 acting or retired judges or of 25 legal advisers among lawyers, notaries or prosecutors; in the note submitted by the President of the European Network of Councils concern was expressed about the modalities for selecting the judicial members by Parliament, because not in line with the ENCJ’s principles, reiterating that the relationship of mutual trust between the European judicial institutions is based on the value of independence and on compliance with the Rule of law; lastly, denouncement was made concerning the strong attacks and accusations of politicians against magistrates who had expressed their concern with reference to the reform project deemed inadmissible, as indeed all citizens or
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judges have the right to express their concern when the fundamental freedoms and democracy are endangered and there are attempts to mine the judges’ independence.
Now therefore, the Council hereby
resolves
to renew its support toward the position taken by the Executive Board of the European Network of Councils, as mentioned above, and to submit this renewed support to the President of the ENCJ, to the Minister of Foreign Affairs, to the Minister of Justice and to the European Commission, and to make the mentioned support duly known to all Judicial Offices.».
