NEWS FROM THE COURTS
On 28 and 29 June the hearings took place of the joint case relating to the independence of the judiciary and the state of the rule of law in Poland (C-204/21, C-615/20 C-671/20, C-181/21, C-269/21).
The AG’s opinions in these cases will be delivered on 15 December 2022.
On 16 June, the ECtHR rendered a decision in the Żurek v. Poland case.
“The applicant in this case, a judge, was also spokesperson for the National Council of the Judiciary (NCJ), the constitutional body in Poland which safeguards the independence of courts and judges. In that capacity, he had been one of the main critics of the changes to the judiciary initiated by the legislative and executive branches of the new Government which came to power in 2015. The case concerned his removal from the NCJ. He alleged in particular that he had been denied access to a tribunal and that there had been no procedure, judicial or otherwise, to contest the premature termination of his mandate. He further submitted that his dismissal as spokesperson for the regional court, combined with the authorities’ decisions to audit his financial declarations and to inspect his judicial work, had been intended to punish him for expressing criticism of the Government’s legislative changes and to warn other judges off of doing the same. The Court held that there had been a violation of Article 6 § 1 (right to a fair trial) and a violation of Article 10 (freedom of expression) of the Convention in the present case. Following the same reasoning as in the case Grzęda v. Poland, it found that the lack of judicial review of the decision to remove the applicant from the NCJ had breached his right of access to a court. The Court also found that the accumulation of measures taken against the applicant – including his dismissal as spokesperson of a regional court, the audit of his financial declarations and the inspection of his judicial work – had been aimed at intimidating him because of the views that he had expressed in defence of the rule of law and judicial independence. In finding these violations, the Court emphasised the overall context of successive judicial reforms, which had resulted in the weakening of judicial independence and what has widely been described as the rule-of-law crisis in Poland.”
Later in June, the ECtHR issued another significant judgement on a Spanish case regarding the rights of judges: M.D. et al. v. Spain. “[T]he European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned the compiling of files by the police in Catalonia on judges who had expressed certain views on that region’s independence from Spain. Material from the files, including photographs, had been subsequently leaked to the press. The Court found in particular that the mere existence of the police reports, which had not been compiled in accordance with any law, had contravened the Convention. As for the investigation into the leak, the Court found it to have been inadequate owing to the failure to interview a person crucial to the investigation, the Senior Chief of Police of Barcelona.”
The Strasbourg Court also found in Haščák v. Slovakia that Slovakia had violated Article 8 (right to respect for private and family life), in a case concerning a “Gorilla operation” carried out in 2005 and 2006 by the Slovak Intelligence Service and the intelligence material obtained by it. The Court found deficiencies in the applicable rules and procedures of the surveillance operation, and the lack of external oversight.
In the case of Grosam v. the Czech Republic, the ECtHR decided that the latter was in violation of Article 6(1), as the Czech Supreme Administrative Court – sitting as a disciplinary court for enforcement officers – had issued a fine in disciplinary proceedings despite it not being an “independent and impartial tribunal” due to the lack of transparency and independence.
Despite widespread internal and external criticism, the European Commission has approved on 1 June a plan for Poland to unlock the roughly 36 billion Euros from the EU recovery fund. To access the money, Poland should meet certain conditions (“milestones”) aiming to guarantee an independent judiciary within the Member State. This includes dismantling a controversial disciplinary body for judges by the end of June, which the CJEU had declared illegal in July 2021 (the Court later imposed a daily €1 million fine when Poland failed to suspend the system). Furthermore, Poland should ensure that judges suspended by the chamber have their cases reviewed. These are the conditions for the first disbursement. An additional third milestone for the end of 2023 should guarantee a completion of the review proceedings, with a view to the reinstatement of the dismissed judges. (See Politico, EU Observer, and Euractiv).
Commission President Ursula von der Leyen defended the plan in Warsaw on 2 June, in spite of unprecedented dissent by five prominent commissioners. (See Politico and Euractiv; see the leaked five dissenting letters on Twitter)
MEPs disapproved the plan and expressed their “grave concerns”. They called on the Council to only approve the recovery plan once Poland has implemented the recent CJEU judgement, including the reinstatement of dismissed judges. (EU Observer, Euractiv)
Von der Leyen responded to the criticism by pledging not to disburse funds before Poland delivers on the first two of three conditions: abolishing the disciplinary chamber for judges and reforming the disciplinary regime. She reiterated that the third milestone – the reinstatement of dismissed judges – should be done by the end of 2023. The MEPs thought this was not enough. (EU Observer). Some MEPs even considered drawing up a motion of censure, which eventually failed support (See Euractiv, Euractiv)
Meanwhile, the Polish people seems to be split on the matter, as a third of the Poles believes that the money should not be granted until the Polish government fulfils the conditions concerning judicial independence. (Euractiv).
There was also division within the ruling PiS party on the plan, as the agreement allegedly had not been agreed on within the ruling coalition. (Euractiv). Simultaneous other concerns were expressed, for instance regarding the LGBT-free zones in Poland. Justice Minister Zbigniew Ziobro argued that the EU was blackmailing the local governments to withdraw these zones by depriving them of funding for i.a. infrastructure if they maintained the status quo. (Euractiv)
On that matter, a Polish appeals court ruled on 28 June that these zones were illegal and must be scrapped in four municipalities. (Euractiv)
During the 23 May Council hearings regarding the Art 7 procedure in relation to Hungary, several concerns were expressed, i.a. on the perceived absence of a level playing field during the recent parliamentary elections, the recent state of emergency, the independence of the judiciary, and the effective access to the right of asylum. The Hungarian delegation denied all concerns. (Statewatch). On 21 June, the Unhack Democracy Conference emphasized the importantce of free and fair elections to ensure liberal democracy (EU Observer, including the recordings of the conference).
In the meantime, Hungary blocked the EU deal on minimum corporate tax rate. After Poland dropped its opposition, an agreement was expected. (EU Observer, Euractiv). Hungary allegedly uses this veto to exert pressure on the approval by the Commission of Hungary’s recovery plan (EU Observer), which is important to boost Hungary’s current problematic economic situation. (EU Observer)
Just before the start of the Czech presidency of the Council, the Member State suffered a dent, as a member of the Czech coalition resigned as deputy mayor of Prague and was taken into custody on suspicion of running an organized crime operation (involving bribery) from the Prague City Hall. (EU Observer)
During a hearing of the special inquiry committee in the EP, the Israeli NSO Group informed the MEPs that at least 5 EU Member States were using Pegasus spyware. It has been used against politicians in Poland, journalists in Hungary, and on EU level against several MEPs and commissioner Didier Reynders (EU justice). (Politico, EU Observer)
Further readings and media
Jaraczewski, Jakub: Just a Feint?: President Duda’s bill on the Polish Supreme Court and the Brussels-Warsaw deal on the rule of law, VerfBlog, 2022/6/01: https://verfassungsblog.de/just-a-feint/
Bornemann, Jonas: Green light or white flag? The European Commission’s endorsement of the Polish recovery plan and its implications for the rule of law crisis, European Law Blog, 2022/8/6: https://europeanlawblog.eu/2022/06/08/green-light-or-white-flag-the-european-commissions-endorsement-of-the-polish-recovery-plan-and-its-implications-for-the-rule-of-law-crisis/
LIBE–AFCO Joint Public Hearing on “Rule of law mechanisms in the EU 2022/6/20: https://www.europarl.europa.eu/news/en/press-room/20220620IPR33409/rule-of-law-in-the-eu-ways-to-better-protect-the-union-s-core-values
Pech, Laurent: Covering Up and Rewarding the Destruction of the Rule of Law One Milestone at a Time, VerfBlog, 2022/6/21: https://verfassungsblog.de/covering-up-and-rewarding-the-destruction-of-the-rule-of-law-one-milestone-at-a-time/
Morijn, J. (2022). The Law and Politics of Protecting Liberal Democracy. (Inaugural lectures University of Groningen). University of Groningen Press: https://pure.rug.nl/ws/portalfiles/portal/224636215/Oratie_John_Morijn.pdf
Dalkilic, Evin: Generation Action, VerfBlog, 2022/6/26: https://verfassungsblog.de/generation-action/