(CN) --- In yet another blow to its beleaguered court system, Poland was told on Thursday that its long-standing practice of allowing the justice minister to move judges between courts to hear cases is a “very troubling” legal regime.
Advocate General Michal Bobek, a Czech magistrate at the Luxembourg-based European Court of Justice, issued a scathing legal opinion that said the practice erodes the independence of the judiciary and breaches EU laws safeguarding the separation of powers.
While Bobek's opinion dissects a small part of a 2001 Polish law on the organization of the country's courts, its stinging tone can be seen as a fresh reprisal by Europe's top jurists against Poland's right-wing nationalist government run by the Law and Justice party.
European Union institutions are fiercely contesting that political party's efforts to weaken Poland's courts through a number of judicial changes it enacted since seizing power in 2015. The European Court of Justice, the EU's top court, has issued a series of rulings against those judicial changes.
On the matter before him Thursday, Bobek examined a 2001 law that gives the justice minister, who now also serves as Poland's chief prosecutor, the power to move judges between courts to hear cases. This labor practice is known as secondment and it is usually associated not with lifetime judges but with companies that temporarily move workers around to beef up production or fill vacancies.
In 2019, after seconded judges from lower courts ended up on panels to hear seven criminal cases before the regional appeals court in Warsaw, a presiding judge on the Warsaw court turned to the EU court for a ruling on whether Poland's system of secondment within the judiciary is legal.
The seconded judges were appointed by Justice Minister Zbigniew Ziobro, a Catholic-nationalist politician who left the Law and Justice party to form a smaller party, United Poland, which is now in a coalition with the Law and Justice party. Besides serving as justice minister, he has also assumed the position of general prosecutor, Poland's chief law enforcer.
Ziobro has led efforts to overhaul Poland's courts and he rejects the EU courts' rulings, arguing that Poland's constitution overrides EU law, a position the EU's jurists say is false and goes against the union's founding treaties. Ziobro is problematic for the progressive political establishment in the EU on other grounds too: He vehemently opposes same-sex marriage and has taken steps to withdraw Poland from the Istanbul Convention, a treaty meant to fight domestic abuse and protect women's rights.
Bobek called into question Ziobro's role as both the justice minister and top prosecutor, a “double hat” status that makes his ability to move judges between courts under secondment rules even more problematic.
“Indeed, within the national constitutional setup currently in place, the minister for justice also holds the office of the (public) general prosecutor,” Bobek said. “This seems to me to be one of the most --- if not the most --- disturbing feature of the national legal framework.”
The power to shuttle judges between court ought to be handled by judicial self-governing body, Bobek wrote, and giving Ziobro those powers is troubling.
“This produces an ‘unholy’ alliance between two institutional bodies which, normally, should function separately,” Bobek wrote. “As regards, in particular, the issue of secondment of judges, in effect it allows the hierarchical superior of one party to criminal proceedings (the prosecutor) to compose (part of) the panel which will hear the cases brought by his or her subordinate prosecutors.”
Bobek said Poland's system of moving judges between courts gives rise “to a rather worrisome network of connections between the seconded judges, the prosecutors and (one member of) the government,” referring to Ziobro.
An additional concern for Bobek is that some of the seconded judges also serve as disciplinary agents within Poland's own justice system with the power to punish judges and court officials.
Bobek said all of this creates “an unhealthy confusion of roles between judges, ordinary prosecutors and disciplinary agents.”
Making the situation worse, he said the justice minister is not bound by any criteria in selecting judges he wants to move between courts, does not have to explain his reasons for seconding judges and that their appointments have no time limits.
“The seconded judges are, in many respects, not subject to the ordinary rules, but to a rather special --- and very troubling --- legal regime,” Bobek said.
Bobek worried that judges who are seconded may feel under pressure to please the justice minister and “rule in favor of the prosecutor or, more generally, in favor of the minister for justice/general prosecutor.”
He wondered if such judges “may be tempted by the possibility of being rewarded with a secondment to a higher court, with possibly improved career prospects and a higher salary.”
“In turn, seconded judges may be discouraged from acting independently, in order to avoid the risk that their secondment may be terminated by the minister for justice/general prosecutor,” Bobek wrote.
Bobek rejected arguments put forward by Poland that the system of secondment was in place long before the Law and Justice government took over.
“I fail to see how the fact that a system of secondment of judges was introduced long before the current government took office could affect an examination of whether or not that system complies with EU law,” he said.
Sebastian Kaleta, a Polish deputy justice minister, dismissed Bobek's opinion as a political attack.
On Twitter, Kaleta called it a “bizarre opinion” that is part of an “operation against Poland” that “is political, not legal.” He said EU laws, based on the bloc's treaties, do not tell member states how they can organize their judiciaries.
“This is about extortion and blackmail,” Kaleta said.
Bobek's opinion is not binding on the Court of Justice, but the court's final ruling often reflect the views of its advocates general.
Courthouse News reporter Cain Burdeau is based in the European Union.
Follow @cainburdeau
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