Published: 1 Dec 2017 | By Laurent Pech

Rule of Law Backsliding in the EU

Article

Capturing the courts

President Trump, during his visit to Poland, said that Poland and the United States shared the same commitment to safeguarding values such as the rule of law. To the Polish ruling party, the right-wing Law and Justice Party, this appeared to be the right moment to mount a coordinated set of legislative attacks against its judiciary having previously successfully captured the Polish Constitutional Tribunal and key media outlets. Acting without any prior consultation and following what may be only described as a simulacrum of democratic law-making, the Polish ruling party was able to rush the adoption of four pieces of legislation in the name of ‘judicial reform’:

  1. the Law on the Supreme Court;
  2. the Law on the National Council for the Judiciary;
  3. the Law on the Ordinary Courts’ Organisation; and
  4. the Law on the National School of Judiciary.

Together, these laws allowed the Government to fire all judges of the Supreme Court and to replace the leadership of the lower courts, as well as to take over the system of judicial appointments. While the first two laws were unexpectedly vetoed on 24 July 2017 by the Polish President under massive pressure from street demonstrations, Kaczyński, Poland’s de facto ruler and chair of the Law and Justice Party, announced that he would not take no for an answer and vowed to introduce the laws again.

EHRAC is representing Anatoliy Denisov in a recent case against Ukraine at the ECtHR, concerning his dismissal from the position of president of Kyiv Administrative Court of Appeal. Whilst Mr. Denisov was on annual leave, unable to be informed of the date of the hearing that would consider his dismissal, the High Council of Justice (HCJ) dismissed him from the post of president of the court. Moreover, the Higher Administrative Court later dismissed his appeal. The dismissal of a president of a court by a predominantly Government-controlled body, such as the HCJ, is a prime example of a threat to the independence of the judiciary and consequent systemic undermining of a key component of the rule of law. In this respect, EHRAC argues before the ECtHR that such allowances provide the Government with decisive control over the president, who has substantial influence over, inter alia, which judges hear particular cases and how court decisions and legislation are implemented. This is particularly true for the removal and replacement of a president of an appellate administrative court which, by its very function, scrutinises the decisions of the Government. A hearing before the Grand Chamber took place on 18 October 2017.

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