Magistrate Calls Poland ‘Pathological’ Over Rule-of-Law Breakdown

(CN) --- A magistrate at the European Union's top court on Thursday called the Polish government's efforts at wresting control over the country's court system “pathological,” a stinging rebuke from the normally neutral-toned jurists in Luxembourg.

European Court of Justice Advocate General Michal Bobek's harsh characterization of the state of affairs in Poland came at the end of a legal opinion he wrote related to one facet of a multi-sided legal and political fight between Poland's far-right government and Roman Giertych, a prominent Polish lawyer who represents opposition politicians, including Donald Tusk, a former Polish prime minister and recent president of the European Council.

Giertych, who harbors political ambitions and was once aligned with Poland's ultra-right politics, is an outspoken critic of the ruling ultra-nationalist and deeply Roman Catholic Law and Justice party. In October 2020, his clash with the Law and Justice party deepened after he was charged with money laundering.

In delivering the money laundering charges, Polish authorities put him under arrest and even searched his home and office, drawing rebukes from legal groups, including the International Commission of Jurists, that accused authorities of targeting him for his outspokenness.

Giertych's arrest also came one day ahead of a court hearing where he was defending a high-profile critic of the ruling party, billionaire bank owner Leszek Czarnecki. Czarnecki was accused in September 2020 of cheating bank clients. In 2018, he played a central role in a corruption scandal when he accused a government financial regulator of soliciting a bribe.

Since seizing control in 2015, the Law and Justice controlled-Polish government has become a pariah in European political circles, in no small part because it has challenged the notion that being a member of the EU also requires Poland to put EU rules and laws above Polish ones.

The European Commission, the EU's executive branch, accuses Poland of breaching the EU's democratic principles and it is challenging the Law and Justice party's efforts to overhaul the judiciary in Poland. Since taking power, the ruling party has tried to force Supreme Court judges into early retirement, set up new controversial disciplinary chambers for judges and lawyers and given the justice ministry more control over judicial appointments.

Thursday's rebuke from Bobek was the latest in a string of what seem to be ever more harsh words from the EU's high court in Luxembourg over Poland's judicial overhaul.

Bobek's nonbinding opinion took aim at Justice Minister Zbigniew Ziobro's effort to get Giertych punished for public comments he made in 2017 on behalf of a client who he said was at risk of being charged with a criminal offense.

Ziobro, who controversially acts as both the justice minister and the country's top prosecutor, accused Giertych of making unlawful threats and of professional misconduct by uttering his comments.

To punish him, Ziobro dragged Giertych before the disciplinary chamber of the Warsaw bar association and has continued to pursue the case against Giertych, despite the bar association's decision on three occasions to not initiate disciplinary proceedings against him. Upon appeals, a disciplinary court twice sent the case against Giertych back to the bar association's disciplinary chamber.

Upon receiving Giertych's case for a third time, the disciplinary court asked the EU court for legal guidance on how to proceed.

At its heart, the disciplinary court is asking the EU court whether it should reject the case entirely against Giertych and not even issue a ruling because the matter could end up before a contested higher disciplinary chamber at the Supreme Court that the Court of Justice has already deemed not sufficiently independent of the executive branch and therefore illegal. The Supreme Court disciplinary chamber was set up as part of the Law and Justice party's judicial reforms.

In his legal opinion, Bobek reaffirmed the primacy of EU law over Polish law, but he said that nonetheless the disciplinary court was obligated to issue a ruling even though its decision might be appealed to the illegal Supreme Court chamber.

At the end of his contorted legal reasoning, Bobek wrote that his conclusion “might not be ideal for dealing with what essentially are pathological situations” in Poland.

He added that it appears the “normal rules of legal engagement and fair play” are breaking down in Poland. But he said the power of the EU's high court is limited in “settling institutional stand-offs in such a specific context” and that it is the role of other institutions, such as the European Commission and European Council, and not the court, to force Poland to abide by the EU court's rulings and do away with the illegal disciplinary chamber at the Supreme Court.

Bobek's opinion serves only as legal advice to the judges of the Court of Justice and is not binding. But the court's rulings often reflect the opinions of its advocates general.

Courthouse News reporter Cain Burdeau is based in the European Union.

Follow @cainburdeau

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