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Poland no longer has the minimum guarantees necessary to preserve its separation of powers, the advocate general of the Court of Justice of the EU said on Thursday.
In a nonbinding opinion responding to questions from the Regional Court of Warsaw, Advocate General Michal Bobek said provisions which allow Poland’s justice minister — who is also the chief prosecutor — to second judges to higher courts, and then terminate the secondment whenever he wants, are incompatible with EU law.
The Court of Justice is currently considering a flurry of cases related to controversial Polish judicial reforms.
In March, the court ruled that changes to the way Polish Supreme Court judges are appointed may violate EU law. And earlier this month, Advocate General Evgeni Tanchev said in an opinion that the country’s new system to discipline judges is “contrary to EU law” and risks undermining judicial independence.
In Thursday’s opinion, Bobek wrote that “in a system that is compliant with the rule of law, there should be at least some transparency and accountability with regard to the decisions on the secondment of judges,” adding that “the fact that the secondment is for an indefinite period and may be terminated at any time at the discretion of the Minister for Justice/General Prosecutor is a source of major concern.”
The arrangement under which the justice minister is also the prosecutor general is “the most — if not the most — disturbing feature of the national legal framework,” he added. The post is held by the politically powerful right-winger Zbigniew Ziobro.
Another problematic point, according to the advocate general, is that delegated judges are allowed to also serve as disciplinary agents attached to Poland’s Disciplinary Officer for Ordinary Court Judges.
“It is certainly not far-fetched to believe that judges may be reluctant to disagree with colleagues who, one day, may bring disciplinary proceedings against them,” he said.
The advocate general raised concerns that Poland’s practice means there is no guarantee the courts are independent.
“The minimum guarantees necessary to ensure the indispensable separation of powers between the executive and the judiciary are no longer present,” he wrote.
“The national rules at issue do not offer sufficient safeguards to inspire in the individuals, especially those subject to criminal proceedings, reasonable confidence that the judges sitting on the panel are not subject to external pressure and political influence, and have no vested interest in the outcome of the case.”
Poland’s Deputy Justice Minister Sebastian Kaleta called the opinion “bizarre,” adding that it was proof of an ongoing political operation being conducted against Poland. “The EU Treaties don’t have a single regulation concerning the organization of the courts, this is about pressure and blackmail.”
The court’s final opinion does not have to reflect the view of the advocate general.
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