(CN) — Drawn once again into the turmoil raging inside Poland's divided court system, a magistrate at Europe's highest court on Thursday rebuffed a move by allies of Poland's ultra-conservative government to purge judges with ties to the former communist regime.
In a legal opinion for the European Court of Justice, Advocate General Michal Bobek dismissed as baseless allegations that judges appointed before the fall of communism in 1989 are not independent and impartial.
His opinion comes amid a complicated and high-stakes legal and political conflict between Poland's ruling ultra-conservative Law and Justice party, which has strong backing in rural areas, and those opposed to the party's increasingly anti-liberal and nationalist policies.
Since coming to power in 2015, Law and Justice has tried to seize control over Poland's justice system by forcing judges it doesn't like out of office. The far-right nationalist party says its reforms are needed to weed out corrupt communist-era judges.
But Bobek dismissed Poland's arguments and wrote that any purging of judges 30 years after the fall of communism cannot be justified.
“The constitutional moment where any such measures could be legitimately envisaged, has, in my view, long since passed,” Bobek wrote.
He acknowledged that it may be justified and lawful to prevent members of overthrown anti-democratic regimes from taking office in new democratic governments. He cited, for example, a 2014 ruling by the European Court of Human Rights that found Romania could lawfully bar a former collaborator with Romania's communist-era political police from getting a public service job.
But Bobek said he saw no similar reason for removing Polish judges appointed during communism and in its wake. He expressed dismay that Poland is contemplating such a purge at a time when it is a member of the European Union and a democratic state far removed from its communist past.
“Whatever the true motives behind such suggestions being made in Poland today, I simply note that that sheer temporal disconnect would, by itself, exclude the objective necessity of such measures in a democratic society,” Bobek said.
Bobek's opinion came in response to an unnamed Supreme Court judge's request for a ruling from the European Court of Justice on whether communist-era judges can be considered independent.
The Supreme Court judge argued that communist-era judges are not independent because they made vows to the communist state and were appointed by an undemocratic executive body, the Council of State.
“Those procedures, in the view of the referring court, undermine the confidence that the judiciary should inspire in a democratic society,” Bobek wrote, summarizing the arguments put forward for purging communist-era judges.
But Bobek said those arguments were unconvincing and that the EU's top court was offered little evidence that shows a lack of independence of communist-era judges.
“The referring court appears to be laboring under the assumption that judges appointed during the Communist era are by definition ‘forever tainted’, simply by virtue of association with the previous regime,” he wrote.
The magistrate said that Poland, like other former communist European countries, chose to keep in place its judges even though they had been appointed under the communist regime for the sake of continuity.
“Subsequently, judges appointed under the previous regime in Poland have benefited from a double layer of acceptance, at both national and EU level,” Bobek said.
The request for a ruling from the EU court by the unnamed Supreme Court judge was itself a source of controversy because that judge has been accused of being illegally appointed by the Law and Justice party.
Bobek noted that “his judicial office is heavily contested” and allegedly “irregular and vitiated by a flagrant breach of national law.”
The European Court of Justice has previously ruled that the Law and Justice's moves to create new judicial chambers were illegal. Consequently, a fight has broken out inside the Polish judiciary with some judges not recognizing the rulings of judges associated with these chambers.
In the case before Bobek, the contested Supreme Court judge asking the Court of Justice for a ruling on communist-era judges decides which appeals to send onto the high court in Warsaw.
Specifically, the contested Supreme Court judge is questioning the impartiality of a communist-era judge, identified by the initials FO in Bobek's opinion, who ruled in a case related to a mortgage payment dispute involving the Getin Noble Bank, a Polish bank.
Bobek's decision to find the contested Supreme Court judge's request for a preliminary ruling legitimate was itself criticized.
Laurent Pech, a law professor and expert on Poland's rule of law disputes at the Middlesex University London, called Bobek's reasoning “seriously flawed.”
It “is just part of an attempt by fake judges to legitimize themselves while trying to further justify a purge” of judges appointed during the communist regime, Pech said in an email to Courthouse News.
Critics, including EU institutions, contend that the Law and Justice party is building an authoritarian state which controls the media, the courts, civil society and politics. The far-right government has become a pariah within EU politics for stamping out media outlets that are critical, imposing a near-total ban on abortions, fomenting nationalism and targeting gays and lesbians.
The European Commission, the EU's executive arm, is challenging Poland's authoritarian drift in the courts, but the commission is seen by many as not doing nearly enough.
Bobek's opinion serves as legal guidance to the Court of Justice, the EU's highest court. Opinions from advocates general are not binding on the court, but they often function as the legal basis for the court's judgments.
Courthouse News reporter Cain Burdeau is based in the European Union.
Follow Cain Burdeau on Twitter
Follow @cainburdeau
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
