Legal confusion deepens in Poland in new challenge for EU

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People holding a Poland and European Union flags take part in a protest outside Poland’s parliament building as lawmakers voted to approve the much-criticized legislation that allows politicians to fire judges who criticize their decisions, in Warsaw, Poland, Thursday, Jan. 23, 2020. Poland’s lawmakers gave their final approval Thursday to legislation that will allow politicians to fire judges who criticize their decisions, a change that European legal experts warn will undermine judicial independence. (AP Photo/Czarek Sokolowski)

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WARSAW, Poland (AP) — Legal confusion has deepened dramatically in Poland, with the government and the country’s high court judges on a collision course over who gets to administer justice.

The populist governing party has tried to take control of Poland’s court system over the last four years, steadily eroding the independence of the judicial branch.

On Thursday, it took two more heavy steps toward assuming full sway over the legal system: pushing through legislation that allows the government to fire judges whose rulings it does not like, and expressing open defiance of a Supreme Court resolution.

In the resolution, 60 members of the Supreme Court, which has managed to maintain a large degree of independence from the government thanks to the European Union court, said that judges appointed by a judiciary councilthat the ruling party has politicized were illegitimate.

The government, in turn, called the Supreme Court’s resolution illegitimate. Justice Minister Zbigniew Ziobro said the high court carried out “a gross violation of the law, and its so-called resolution has no legal effects.”

Several courts across the country canceled hearings on Friday due to uncertainty over whether the presiding judges had the authority to make rulings.

In Warsaw, the Supreme Court had nine hearings canceled because the presiding judge had been appointed in the contested way.

The judge, Malgorzata Manowska, said that any ruling her panels would have handed down could be questioned, causing “very negative consequences” to the parties involved.

The Supreme Court says the judiciary council is illegitimate because its members are directly appointed by the government, a violation of judicial Independence. And by defying the Supreme Court, the Polish government is also defying the top EU court.

In November, the European Court of Justice said the new judicial body, called the National Council of the Judiciary, could undermine judicial independence in Poland. However, it also left it to Polish courts to make the final decision on the government’s judicial changes.

In response to the Supreme Court resolution, two panels of judges in Katowice and in Warsaw, canceled their sessions Friday, saying the resolution referred to some of them. A judge in Kalisz, in central Poland, also suspended her session, saying she needs to get acquainted with the resolution.

The legislation passed by the lower house of parliament Thursday allows politicians to fire judges who rule against the government, including by speaking out against the new appointments.

The bill, which critics called a “muzzle law,” has been condemned by the EU, the United Nations and the Council of Europe, the continent’s largest human rights body. Amnesty International has said it would end the separation of powers in the young democracy.

Under the legislation, the government could also fire judges whose rulings adhere to EU legal principles if it does not like them.

Meanwhile, the European Union on Friday expressed its deep concerns at developments in Poland, as the populist government there continues to defy the laws and standards that it agreed to uphold when it joined as a member in 2004.

Some European legal scholars warn that the developments pose a threat to the entire European Union legal system.

Laurent Pech, a professor of European law at Middlesex University, London, wrote on Twitter that “Poland is no longer a democratic regime” governed by rule of law and that a “process of de facto exit from EU legal order has begun.”

As matters stand now, national courts in the 28 EU member states recognize the judgments of courts in other states on a range of matters, including European arrest warrants, child custody issues and commercial law.

But as Poland’s court system becomes increasingly politicized, there are fears that Polish judges will no longer operate as objective arbitrators of the law, and will come under pressure to issue rulings to the government’s liking.

During a meeting with reporters in Warsaw last week, Pech said that any doubts about judges’ independence will also negatively affect foreign investment in Poland.

“No one will invest in a country where essentially the rulings of the Court of Justice regarding the judicial branch are simply openly ignored,” Pech added.

The bill goes next to President Andrzej Duda, who supports it and is expected to sign it into law. He had argued, along with the government, that the justice system is deeply flawed and needs reform. He also argued that the EU does not have the right to dictate to Poland how to run its justice system.

“We will not be told, in foreign languages, what kind of system we should have in Poland and how Poland’s affairs should be taken care of,” Duda said.

The government argued early in its tenure that it needed to purge judges who were part of a privileged “caste,” including holdovers from the communist era.

Critics point out that there are very few judges still working today who began under communist rule, which ended 30 years ago. Lately the government has said it seeks to end “anarchy” in the system — an anarchy that opponents say has been triggered by the government itself.

A retired chief justice of Poland’s Constitutional Court, Andrzej Rzeplinski, also thinks the government’s interference with the judiciary and its hostility to input from elsewhere in Europe signals the country is headed for a departure from the EU.

Since the ruling party took power in 2015 “we live in constantly fueled conflict,” Rzeplinski told the Onet.pl news portal.

“The next stage will be to take Poland out of the EU,” Rzeplinski said.

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