How is Poland “restoring the rule of law”? At the request of Ordo Iuris, the Ministry of Justice has made their Action Plan available

– The Ministry of Justice has made available to the Ordo Iuris Institute the Action Plan on Restoring the Rule of Law.

– This document was presented to the EU Member States and the European Commission by the Minister of Justice at a meeting of the Council of the European Union in February of this year.

– The presentation of the Action Plan by the current government was, in the opinion of the European Commission, one of the key factors in their decision to terminate the infringement procedure under Article 7 of the Treaty on European Union against Poland.

– The document is very short, vague, and only contains some very general intentions regarding actions related to "restoring the rule of law" in Poland.

– The plan envisages, among other things, separating the functions of the Minister of Justice and the Attorney General, amending the Act on the Constitutional Tribunal, and aiming to “fully compensate the victims” of the reforms carried out by the previous government.

READ THE ACTION PLAN (IN POLISH) – LINK

In December 2017, the European Commission announced the initiation of a procedure under Article 7(1) of the Treaty on European Union (TEU) against Poland. This unprecedented step by the Commission was the result of accusations made against the Polish authorities of the time, concerning, among other things, the judicial reforms which were then being introduced. The Commission pointed to a dozen or so laws that, allegedly, directly or indirectly negatively impacted on the principle of the tripartite division of power, including the independence of the Constitutional Tribunal, the Supreme Court, the common courts, and the National Council of the Judiciary as well as the prosecution service.

What turned out to be a breakthrough in the conflict that lasted eight years was an announcement by the European Commission, which declared in early May that it intended to close the procedure under Article 7(1) TEU against Poland. This decision was said to be based primarily on a reassessment of the situation in Poland, where, although the laws in dispute had still not been amended, in the Commission’s view there was no longer any risk of a breach of the rule of law. The Ministry of Justice claims that this state of affairs was due to the presentation to the Council of the European Union of an “Action Plan on Restoring the Rule of Law in Poland” by the Minister of Justice in February and “Poland’s taking the first steps to implement this plan”. Ultimately, the infringement procedure was terminated by the Commission in its decision of 29 May. The Ordo Iuris Institute submitted a request for the document in question under the access to public information procedure.

The very short document – two and a half pages – provided by the Ministry of Justice stresses that it was produced in response to “systemic problems related to the rule of law”, and that the restoration of the values set out in Article 2 TEU is considered a “priority” by the current government. The Action Plan itself sets out “the steps that will be taken to address the issues identified in the Commission’s reasoned proposal under Article 7(1) TEU and in the rulings by the Court of Justice of the EU and the European Court of Human Rights”, referring at a very general level to particular areas related to the rule-of-law dispute.

The document is divided into several subsections, including: the National Council of the Judiciary, Constitutional Tribunal, Supreme Court, Common Courts, Public Prosecutor’s Office, and Cases before the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECHR), with a few sentences devoted to each institution.

With regard to the National Council of the Judiciary (NCJ), the authors of the document indicate that the Minister of Justice has presented a draft law amending the rules for the election of 15 judges as members of the NCJ. The mentioned draft is to introduce the principle that the judges of the NCJ will be elected by persons of equal rank (i.e. other judges) by universal and secret ballot, “without the influence of politicians”. The amendment aims to “eliminate the problems raised in the case law of the CJEU and the ECHR as well as in the Commission’s request.

With regard to the Constitutional Tribunal, the Action Plan emphasises that the Tribunal’s status, as well as that of its President, is contested, and that the root of the problem is “the election of three judges of the Constitutional Tribunal by the 8th Sejm, while these positions had already been filled by the 7th Sejm”. In order to “eliminate these anomalies”, the current Polish authorities plan to “adopt a resolution of the Sejm on the Status of the Constitutional Tribunal” and “amend the Constitutional Tribunal Act”.

The authors of the Action Plan state that the Disciplinary Chamber and the Extraordinary and Public Review Chamber of the Supreme Court “are not independent courts established by law”. Here, the Ministry of Justice refers to the European Commission’s request to initiate an infringement procedure and to the CJEU and ECHR’s case law. Consequently, “in order to strengthen the independence of the Supreme Court”, Poland plans to amend the law on the Supreme Court, including the Chamber of Extraordinary Control and Public Affairs, and to eliminate the institution of the extraordinary complaint from the legal system.

With regard to the ordinary courts, it was pointed out that “the Law on the System of Common Courts contains numerous provisions that undermine court independence and effective judicial protection”. The document stresses that “given the principle of the primacy of EU law, these provisions, inter alia the ‘muzzle law’, are no longer applied by the courts and judges do not face any disciplinary liability for applying EU law. Therefore, there is no legal obstacle for judges to ensure the right to an independent, impartial court established by law, in line with the CJEU case law. This also includes an examination of the status of other judges”. A generally-worded phrase appears in the Plan according to which “in the longer term, the Ministry of Justice plans to present draft laws containing provisions strengthening the guarantees of judicial independence and introducing rules for the secondment of judges, the functioning of the judicial self-government, the appointment of presidents of courts, and the operation of disciplinary ombudsmen of common courts”.

Furthermore, Poland, as the document points out, plans to undertake reforms of the Public Prosecutor’s Office, which are to involve separating the functions of the Attorney General and the Minister of Justice. It also recalls Poland’s accession to the European Public Prosecutor’s Office, which aims to “increase the transparency and independence of the Polish prosecution service”.

In the paragraph devoted to cases before the CJEU and ECHR, there is a claim that “the Polish government aims to fully compensate the victims” of the reforms carried out by the previous government. In an addendum, the Ministry informs us that Poland plans to create “a new institutional system for the execution of ECHR judgments, as a response to the advice contained in the Recommendations of the Committee of Ministers of the Council of Europe and in the resolutions of the Parliamentary Assembly of the Council of Europe”.

“According to information made available on the website of the Ministry of Justice on 29 May, it was this document that determined the termination of the infringement procedure by the European Commission, although it only constitutes an announcement that action is being taken on legislation that is unspecified in terms of content and timing”, notes Patryk Ignaszczak, an expert at the Centre for International Law at the Ordo Iuris Institute. “The regulations at the heart of the dispute between Poland and the European Commission, including the Act on the National Council of the Judiciary, have still not been amended. This leads to the conclusion that the decision by the European Commission was based not on concrete, substantive changes, but only upon an announcement that some action would be taken. Such a manner of proceeding by the Commission raises doubts as to its impartiality and undermines trust in the European Union as a whole, of which the Commission is the main representative.”