The Polish government have dismantled the rule of law, so far in small steps. With the new law, the Polish government has lost “the last legal state of shame,” says the lawyer, Anne Sanders.
Warsaw: protests against the reform of the judiciary
The Polish government takes over with a new act, the control of the Supreme court of the country. The Opposition fears that the courts can no longer work in the future independently. The lawyer Anne Sanders explains why Poland has embarked on a dangerous path, and why the EU can only watch.
DW: If you are looking as a lawyer in Poland: Is the country still in a state of law?
Anne Sanders: well, It’s not in a good way. The Polish government of the PiS bites since the beginning of their term of office are always more small piece of the rule of law. But with this last step, she lost the last legal state of shame.
How, exactly, the rule of law is undermined?
It started in 2015, as the PiS had won the election, with measures to be taken against the constitutional court. The PiS was strong to the fact that only her agreeable judges were appointed to the constitutional judges. But also the procedural law of the constitutional court has reformed the party. The procedural law governs the manner of how the court works. Here were louder, small Changes that make the processes more cumbersome and, in practice, result in the court’s working poor.
Can you give an example?
Anne Sanders works as an expert for the Council of Europe
The method should only be possible in the order of their receipt. You might think that the procedure take place in an orderly and quickly. But it does lead to that urgent and critical cases remain for long, because the court is busy with old cases. Another example is the high quorums, that is, a court may only meet with a very large majority of the decisions. Also the first sounds so bad. Want to explain a majority of the judges, a decision by the government to be unconstitutional, then a few judges, not enough on the other side, so that such a decision is made.
A few days ago, passed a law relates to the National judiciary or the Judicial Council, which also appoints the judges for the Supreme court. What is the effect of the PiS there?
This Council of the judiciary is protected by the Polish Constitution should guarantee the independence of the judges. So far, the Council was a kind of judicial self-government, the elected judges, which of the colleagues you represent. The new law should, in the future, the Parliament will determine who sits as a judge in the Council. This means that the Counsellor is in the future, full of judges who are sympathetic to the PiS. Thus, the party can determine who is in Poland to judge. Not only that, but The law empowers the PiS also, to dismiss all the judges sitting so far in the Council.
The Supreme court in Poland: Decide here soon the government?
The Argument of the PiS, the appointment of judges was not yet democratic. Finally, it is the elected party and should be able to have a say. This is a legitimate counter-argument?
This is an Argument that the PiS. The National Council of justice is provided for in the Polish Constitution. He has the task to protect the independence of the judiciary. This may mean that a judicial decision is against the decision of the majority in Parliament. The PiS takes the judges the independence and installed party-goers, the consequences of their policy. It can’t be. A judge must not be the case for a certain policy. A judge must have the freedom to be able to unpopular decisions.
How are judges appointed in Germany?
At the Federal level, judges are appointed by a judicial selection Committee. Consisting of members of Parliament and agricultural Ministers, to choose the judges who are then appointed by the Minister of justice. Now you will say – rightly – that the government and the Parliament have so much more influence. This is actually true. In this respect, it is not surprising if the Polish government argues, they do have a Reform, so it is with you, just like in Germany.
What is the difference between the Polish and German judiciary then?
The System in Germany is a long-established, in which Checks and Balances have formed, so that the judges can work independently. In addition, in Germany there is something, what you might call a culture of independence. In Germany, no politician would say that judge as a party-goers to make their judgments in the sense of the majority; at least, such cases are not known.
A key point of a further new law in Poland is that the judiciary can determine the Minister, which is the Supreme court judge continues in office. There’s no such thing in Germany really. Nevertheless, the developments in Poland, should be available in Germany, too self-critical. Our System is based in many cases on the grown structures, which could be easily destroyed. We should ask ourselves how we and our independent judiciary and to protect.
Minister of justice Zbigniew Ziobro, determined not only who will judge, but who may no longer be
The Opposition fears that the PiS, she sits first in the National judicial Council, which sets judges with the threat of disciplinary proceedings, under pressure and tractable power. The Paranoia, or a legitimate fear?
I don’t think at all for Paranoia. The action of the PiS has increased. At first it was small steps, by which the rule of law was undermined. Now there is a new law that allows it to remove a judge from office. Therefore, I think it is very likely that things are even worse. I can well imagine that the party will influence the ongoing processes. I was at 20. May in Poland on a meeting of Polish lawyers, and since have told me of the Polish judge in a personal conversation, that they fear, that the choice of audit and party funding procedures could be affected.
Do you think the Supreme court could, filled with PiS-loyal judges, the next parliamentary elections to influence for the benefit of the PiS?
As I said, the Polish judge, with whom I have talked hold, is conceivable. It is from the point of view of the PiS determined nicely, it should give in the election irregularities that need to be checked, if it has to do with courts, which are weighted in the party. These are, of course, conjecture, but it makes clear the importance of independent judges for the entire state apparatus.
Poland is a member of the EU. Can the Union anything at all against the erosion of the Polish law firm
Little. There are the so-called article 7 procedure, with the aid of a member state in the event of violations of certain rights can be deprived. The deprivation of voting rights, for example, requires the unanimity of all EU member States on the question of whether Poland violated the constitutional values of the EU. Poland, however, would be likely to be supported by Hungary. At this point, it is clear that the EU is based on big ideas, but we have to enforce our fundamental values, only a very blunt swords in Hand.
Anne Sanders assistant Professor at the faculty of Law and political Sciences of the University of Bonn. She has worked as a research assistant at the Federal constitutional court and is always as an expert for questions of judicial independence for the Council of Europe. Since two years she is engaged in the development of the judiciary in Poland.
The conversation Julia Vergin.