Poland must reverse judicial changes, say experts

It comes after Poland’s ruling Law and Justice (PiS) party last year removed judges from the constitutional tribunal on the grounds that they were installed by the opposition Civic Platform party.

The PiS reforms also required a higher number of judges to take decisions, making it harder for the tribunal to vet new laws.

But the tribunal itself rejected the changes, creating a legal limbo in which the government does not recognise the validity of the country’s highest court.

The Venice Commission's draft opinion said the “constitutional crisis” meant that “not only is the rule of law in danger, but so is democracy and human rights”.

It said Polish MPs should “revoke” changes such as the removal of judges, which the tribunal itself had “declared unconstitutional”.

It said PiS reasoning on the need for pluralism of judges was wrong because “such a claim misunderstands the role of pluralism in a constitutional tribunal, which is not to represent political interests and parties”.

It also said the other changes could “slow down” the tribunal’s decisions and make it “less effective as a guardian of the constitution”.

It added that judicial checks and balances were “especially important in times of strong political majorities”, alluding to PiS' dominant position in parliament.

Non-binding

The European Commission had urged the Polish government to request the Venice panel's advice.

Polish PM Beata Szydlo told Polish TV on Saturday that her office was studying the draft text and that the Venice body will file its final conclusion on 12 March.

She noted that its findings would not be legally binding.

“Poland is a sovereign country and Polish authorities take decisions relating to its internal affairs in a sovereign manner, directed by the national interest on the basis of the constitution,” she said.

She said it was a “routine” matter for the Venice panel to scrutinise EU countries, noting that its previous work covered Hungary and France.

Polish president Andrzej Duda said he would not comment on leaks.

But he said that if the Venice body itself gave the document to Gazeta Wyborcza then it would cause him “grave concern”.

EU scrutiny

Civic Platform MPs said the Venice text meant the government should do a U-turn or face greater EU scrutiny.

“If the Polish government decides not to fall in line with the Venice Commission opinion, after having itself requested it, it will be a reason for the European Commission to continue its procedure,” Rafal Trzaskowski, a Civic Platform deputy, said, referring to an EU rule-of-law monitoring process on Poland launched earlier this year.

Andrzej Halicki, another Civic Platform MP, said: “This is one of the toughest Venice Commission opinions ever.”

Saturday’s leak came amid broader concerns on PiS governance.

The party has, in its first 100 days in power, extended control over state TV and radio broadcasters and given police extra snooping powers.

It is also planning to boost state control over Poland’s economy and to restrict foreign ownership of Polish firms.

Warsaw march

The developments saw tens of thousands of people take part in an anti-PiS rally in Warsaw on Saturday.

Mateusz Kijowski, the founder of the Committee for the Defence of Democracy, the NGO that organised the event, said: “We've come to make it clear that freedom and democracy are the most important values guarded by the constitution.”

The rally coincided with PiS-led allegations that Lech Walesa, the former leader of the anti-communist Solidarnosc movement, himself spied for communist authorities.

"We also want to show our solidarity with Lech Walesa, who symbolises the victorious struggle for freedom and democracy in Poland, Europe, and around the globe,” Kijowski said.

Grzegorz Schetyna, the head of the Civic Platform party, told the crowd: “We came here to defend a symbol of Polish history against hate.

“We are defending Poland against [PiS leader] Jaroslaw Kaczynski. We will not allow Poland to be taken over.”