European Watchdog Slams Poland for Backsliding on Rule-of-Law

  • Court overhaul undermines judicial independence, watchdog says
  • Polish government rejects assessment as extremely ‘one-sided’

An overhaul of Poland’s Constitutional Tribunal doesn’t meet the essential standards of balance of power by undermining judicial independence and the court’s ability to rule as final arbiter in constitutional issues, a European democracy watchdog said.

Efforts by Poland’s government to address the concerns haven’t gone far enough, according to the Venice Commission, the Council of Europe’s advisory body on human rights, democracy and rule of law. The opinion follows a July revamp of the tribunal by the ruling Law & Justice party. It may influence the outcome and consequences of an unprecedented probe that the European Union’s executive commission has started into whether Poland is adhering to the bloc’s values.

“Individually and cumulatively, according to the Venice Commission, the shortcomings show that instead of unblocking the precarious situation of the constitutional tribunal, the parliament and government continue to challenge its position as the final arbiter of constitutional issues and attribute this authority to themselves,” The commission said in the statement.

After winning 2015 elections on a pledge to stand up to Brussels and pursue more nationalistic policies, Law & Justice has strained relations with its EU and U.S. allies. A legislative push has drawn criticism for undermining the separation of powers and limiting the ability of the country’s Constitutional Tribunal to assess laws. Concern that Law & Justice is backsliding on democratic norms and eroding the independence of key Polish institutions also prompted S&P Global Ratings to cut the sovereign’s credit assessment this year.

The standoff could ultimately lead to Poland losing its vote on European laws and political decisions if all other 27 EU members agree to punish the Baltic Sea nation of 38 million people. That’s unlikely, however, because of support from Hungarian Prime Minister Viktor Orban, an ally of Law & Justice party leader Jaroslaw Kaczynski whose own government has also drawn reprimand from EU countries for undermining democracy. The row has no bearing on the billions of euros Poland gets as the biggest net recipient of the bloc’s budget.

‘Too Limited’

The Venice Commission said that while improvements made by Poland since an initial assessment, which include removing disciplinary procedures against judges from the president and reducing the majority of a vote needed to rule on legislation, were welcome, they were “too limited in scope.”

“Other provisions of the adopted act would considerably delay and obstruct the work of the tribunal, possibly make its work ineffective, as well as undermine its independence by exercising excessive legislative and executive control over its functioning,” the commission said.

It said postponing cases for up to six months at the request of four judges, allowing the prosecutor to block hearings by being absent, and suspending institutional cases could delay important rulings and politicize the functioning of the tribunal. It also criticized the government for, “without any constitutional or legal basis,” taking control of the tribunal’s judgments by refusing to publish its rulings.

‘Extremely One-Sided’

“The prime minister’s refusal to publish judgments had not even been communicated with an explanation to the Tribunal itself, which instead heard of the news in the media,” the commission said.

As part of its efforts to play down international criticism, Poland’s government didn’t send representatives to the plenary session of the watchdog in Venice. The European Commission’s assessments and actions concerning the country have been “extremely one-sided” and represent solely the views of the opposition and the Constitutional Tribunal, Foreign Minister Witold Waszczykowski told public broadcaster TVP 1 on Friday.

Waszczykowski personally invited the watchdog to look into the conflict over the tribunal, Poland’s highest court, last December after justices ruled his party’s initial overhaul of their panel unconstitutional. The confrontation triggered street protests that brought thousands of Poles into the streets.

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