(CN) — The European Union's top court was urged Thursday by one of its magistrates to make Poland's far-right government knock down what he called an illegal system for punishing judges.
The legal opinion by Advocate General Evgeni Tanchev tees up a likely ruling by the European Court of Justice in the coming months against Poland's 2017 law that established new disciplinary chambers for judges. A year ago, the high court ordered Poland to freeze the disciplinary system, but Poland's ruling far-right Law and Justice party narrowly interpreted that ruling and has kept the chambers open. Critics say the chambers are reminiscent of repressive Soviet-style tribunals.
Tanchev's opinion was issued on the same day that Supreme Court Judge Wlodzimierz Wrobel, a high-profile critic of the government's judicial overhaul, was brought before a new disciplinary chamber at the Supreme Court. He faces criminal prosecution over what his supporters say are absurd charges related to an appeal Wrobel handled where a man was held in prison for a month even after his conviction was overturned. Wrobel is accused of not ordering prison officials to release the man, but Wrobel says Supreme Court staff were responsible for doing that.
Europe's high court has already issued several rulings against the Law and Justice government over its judicial overhaul, which critics see as a dangerous campaign to centralize power in the hands of an authoritarian regime by purging judges it doesn't like.
The government says its overhaul is designed to make the judiciary more fair and efficient. In 2015, when the Law and Justice party seized power and became the first post-communist government with a clear majority, it made overhauling Poland’s justice system a priority. It argued that it wanted to fix a flawed system ruled by a caste of corrupt judges left over from the communist era.
Tanchev's opinion is not binding on the high court and serves as legal guidance. Still, it seems likely the high court will agree with Tanchev and definitively rule that the new disciplinary system must be closed because it is in breach of EU law. The high court is hearing a case brought by the European Commission against Poland. The commission, the EU's executive branch, is waging a multipronged legal battle against what it sees as a dangerous backsliding on democratic values under the Law and Justice party's rule.
In his legal reasoning, Tanchev agreed with all of the commission's objections. He said the disciplinary system cannot be seen as fair and independent because its members are appointed by the parliament and government.
Tanchev said a disciplinary regime for judges is, of course, necessary to hold judges “accountable for serious forms of misconduct,” but such regimes cannot “undermine judicial independence.”
The advocate general found Poland can unlawfully punish judges for rulings they make. For instance, the commission says judges can faced punishment for seeking opinions from the European Court of Justice. In one case, a judge in Warsaw's district court, Igor Tuleya, was suspended by the Supreme Court's disciplinary chamber, and he refused to appear before it because the Court of Justice had ruled it illegitimate.
“This makes it possible to use the disciplinary regime as a means to exercise political control over ordinary court judges contrary to the principle of judicial independence,” Tanchev wrote in reference to Poland's disciplinary regime for lower court judges.
He said Poland's disciplinary system has a “chilling effect” on judges and that the changes allow “political pressure” to weigh on judges “for the content of their decisions.”
“There are numerous reports issued by international bodies highlighting the detrimental impact of the new disciplinary regime and in particular the risks presented by the broadly worded definition of disciplinary offenses in Polish law on judicial independence,” he said.
In its defense, Poland argues that it has not brought disciplinary proceedings against judges based on the content of their judicial decisions.
Tanchev debunked that argument, calling it irrelevant that the investigations of judges “did not lead to disciplinary charges against the judges ... as such measures are liable to exert pressure on judges.”
“The mere possibility that disciplinary proceedings or measures could be taken against judges on account of the content of their judicial decisions undoubtedly creates a ‘chilling effect’ not only on those judges, but also on other judges in the future, which is incompatible with judicial independence,” Tanchev said.
Poland also says it is no different from other EU nations, such as Spain, that allow the parliament and government to appoint judges.
In April after the EU court found no problem with how a recent law gives prime ministers in Malta more power to appoint judges, the Polish ministry of justice accused the court of “double standards.”
“In this judgment the European Court of Justice admitted that politicians can decide on the selection of judges — and more importantly — it is in line with EU law,” the Polish justice ministry said in a statement about the Malta ruling. “It highlights the hypocrisy of EU institutions towards Poland... The judgment of the European Court of Justice is more proof that the EU applies double standards.”
Sebastian Kaleta, a Polish deputy justice minister, said the EU's legal maneuvers “have no legal basis and constitute only the background for a political attack on Poland.”
On Thursday, another Polish deputy justice minister, Michal Wojcik, said on Twitter that Tanchev's opinion showed that Poland is treated differently when it comes to determining how it wants to run its courts.
“Other countries are allowed and Poles are not allowed to make their own decisions,” he said.
Poland's deeply conservative nationalist government, which is broadly popular in the Roman Catholic stronghold, is the crosshairs of EU institutions on many fronts. Besides its attack on the judiciary, Poland's leaders are under fire for fomenting extreme nationalism, supporting a near-total ban on abortions, discriminating against gays and lesbians with many towns declaring themselves “LGBT-free zones,” and expounding Islamophobic rhetoric while also leading opposition against the EU taking in more asylum seekers.
Courthouse News reporter Cain Burdeau is based in the European Union.
Follow @cainburdeau
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