CASTELBUONO, Sicily (CN) – In Poland, demonstrators are dressing famous statues in a white T-shirt with a single word emblazoned on them: “Constitution.”
It's a protest that goes to the heart of a deepening constitutional conflict in Poland, where the ruling nationalist right-wing party is accused of tightening an authoritarian grip on the country's judicial system while also stifling dissenting voices and fomenting far-right nationalism.
The battle over the direction of Poland and its legal system is now at the center of European Union politics too.
“I think this is a fight about the heart and soul of Europe,” said Frans Timmermans, a top EU commissioner, late Tuesday at a news conference in Brussels.
“The fundamental question is [whether] the rule of law [is] a fundamental principle of how this union is organized – yes or no?” he told reporters.
This fight has been in the making since 2015 when the Law and Justice party won Polish elections, and became the first government with a clear parliamentary majority in post-communist Poland.
Since its victory, the party has passed a series of laws and measures that critics say undermine the rule of law and target opposition voices. The government's supporters say it was necessary to overhaul a flawed justice system ruled by a caste of corrupt judges.
Last December, the European Commission took the unprecedented step to trigger sanctions proceedings against Poland because of these moves. Poland became an EU member in 2004.
After the November 2015 election, the Polish government annulled the appointment of five judges to the constitutional tribunal nominated by the previous legislature. Replacements were then appointed by the new government.
After that, the Polish parliament approved other changes that the EU and the judicial establishment say undermined the independence of the Polish justice system.
The changes have given the government more control of common courts, the constitutional court, the supreme court and the final appeals court for civil and criminal cases.
The most controversial change lowered the retirement age for supreme court judges from 70 to 65. This has had the effect of forcing about 27 the court's 73 judges into retirement.
On Tuesday, Poland was asked to show what it has done to comply with the EU's demands to withdraw the allegedly unconstitutional reforms.
Following the closed-door meeting, Timmermans said “the situation in Poland has not improved” and that the EU commission's “worries have increased.”
He said Poland did not offer “any openings in terms of compliance with what the commission put on the table.”
For its part, Poland maintains that it has the right to decide how to organize its judicial system.
In a news release before the meeting, the Polish foreign affairs ministry called the EU's concerns “groundless.”
The ministry said EU treaties guarantee “the system of justice is the exclusive competence of the member state.” It also said lowering the retirement age of supreme court judges would not affect the court's independence and the right to a fair trial.
Poland insists the changes are making the justice system more efficient. Surveys have shown Poles are deeply dissatisfied with the country's legal system.
Tuesday's meeting between Poland and other EU states was part of the sanctions proceedings.
Ultimately, it is unlikely that Poland will face sanctions – including the suspension of its voting rights in the EU – because punitive measures would require a unanimous vote by the EU's heads of state. Hungary, for one, has said it would veto sanctions against Poland.
Poland and Hungary are allies in this fight. Last week, the European Parliament voted to start sanctions proceedings against Hungary over similar allegations about undermining the rule of law.
Timmermans seemed to hold out hope that the proceedings themselves would spur Poland to “change its ways.”
He said triggering sanctions proceedings – known as the Article 7 provision – was meant to foster “dialogue” and that “the force of Article 7 is in the process, not in the conclusion.”
Parallel to the sanctions proceedings, Poland's law on the retirement age for supreme court judges is expected to be considered by the European Court of Justice, the EU's top court.
On Monday, the European Network of Councils for the Judiciary, a group representing EU judiciaries, announced the suspension of its Polish member, the Polish Council for the Judiciary.
The ENCJ blasted the judicial reforms and said a recent change allowing the parliament to appoint members to the judiciary council put into question the Polish body's independence.
It called into question the Polish government claims that it enacted the judicial reforms to bring under “democratic control” judges that the government has called a “state within a state.”
The ENCJ said that the government has claimed that a number of the judges “are corrupt, lazy or [former] communists.”
But the group said no “substantial evidence of the systemic wrongs the government says it wants to put right has been brought to the attention of the board.”
The Polish judiciary council said changes to the way members are elected make the board more democratic.
In issuing its decision, the ENCJ also condemned a move to make Poland’s justice minister the head of the public prosecutors office. This has led to criminal investigations against judges who have rendered decisions the minister does not like and against judges who were critical of the reforms, the ENCJ said.
The ENCJ also said the method to decide appointments to the constitutional court are “securing the loyalty” of that court to the government. As a consequence, the ENCJ said, a large proportion of Poland's judges “do not regard the Constitutional Court as the guardian of the Constitution any longer.”
The ENCJ further condemned a law allowing the justice minister to dismiss and appoint vice presidents of courts, which it said resulted in more than 150 dismissals in six months. It said 10 out of 11 presidents of appeals courts were dismissed.
“No reasons were given for these dismissals,” the group said.
As for changes to the supreme court and the retirement law, the ENCJ said newly appointed judges will have a majority.
The ENCJ said another change establishes “a special chamber with the power to quash judgments which have been unassailable for the last twenty years, whenever this chamber sees fit.”
The group claims the result of these changes is a “very considerable power shift from the judicial power to the executive” that “infringes very seriously the independence of the judiciary and the separation of powers.”
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