HFHR on the independence of Poland’s justice system

The Helsinki Foundation for Human Rights sent a letter to the UN Special Rapporteur on the Independence of Judges and Lawyers Monica Pinto, commenting on the current situation in Poland. According to the HFHR, the constitutional crisis that has lasted for over a year poses a serious threat to the independence of the entire justice system.

The Office of the UN Special Rapporteur on the Independence of Judges and Lawyers was created in 1994. The Rapporteur is tasked with monitoring the status of protection afforded for judges and lawyers. The Rapporteur receives information from the UN Member States concerning alleged violations in this area, conducts official country visits and compiles reports.

In its letter to the Special Rapporteur, the HFHR pointed to the constitutional crisis caused by both changes to laws on the Constitutional Tribunal and the appointment of judges who took the posts vacated in 2015. The ensuing crisis poses a grave danger to the Tribunal’s constitutional position and weakens the effectiveness of its work. “Without the effective Constitutional Tribunal, all guarantees of human rights protection become an empty facade”, reads the HFHR’s statement.

The HFHR also referred to the presidential pardon given to a former head of the Central Anti-Corruption Bureau in November 2015. The President pardoned the official already in the course of pending proceedings before a second instance court was able to hear the case. By doing so, the President wanted “to free the justice system from this case”, as he himself claimed. The President’s decision raised significant controversy and was perceived by some lawyers as a pressure put on the judiciary by the executive.

The HFHR also noted the planned amendment to the National Council of the Judiciary Act. The proposed law seeks to introduce a major change to the judicial appointments process. So far, it was the duty of the National Council of the Judiciary of Poland to designate the best candidate for a judicial post from among all applications submitted, and the President appointed the candidate in question. Under the new law, the NCJ will need to present two candidates for a judicial post the President’s appointment. In the opinion of the HFHR, this solution will adversely affect the independence of a constitutional body – the National Council of the Judiciary of Poland – and will violate the principle of judicial independence. “The draft law is contrary to the Constitution, which explicitly provides that the President’s power is to appoint, not to elect a judge”, reads the HFHR’s letter.

The Foundation also quotes numerous examples of remarks given by politicians and cabinet members concerning lawyers and sitting judges.

The HFHR asks the Special Rapporteur to look into the situation in Poland and, if possible, develop recommendations on the recent legislative changes and incidents damaging judges’ independence.

The letter is available here.