Will Poland relent in rule-of-law dispute?

The Polish government is apparently planning to give in to demands by the European Court of Justice regarding a dispute over the rule of law. Jarosław Kaczyński, the leader of the governing Law and Justice party in Poland, announced that a change would be made to the controversial Disciplinary Chamber for judges, in response to  a Court of Justice of the European Union ruling. Critics say it puts subjects the independence of Polish judges to the will of the governing party, the PiS, and compromises the separation between the judiciary and the executive power. Under a recently adopted law, the government can nominate judges and replace them, dock their pay or force them to retire early.

In Poland, judges enjoy immunity, but the disciplinary chamber can bring proceedings against them for questioning government decisions. Judges can also be fired for questioning the legitimacy of new judicial appointees or for speaking out against legislation aimed at the judiciary.

As a reaction, the European Commission and EU member states have put pressure on Poland to change the legislation. In early 2020, the European Court of Justice handed down an interim decision, deploring the lack of independence of the judiciary. The court asked for the disciplinary chamber to suspend its activities while it decided on its ruling regarding the so-called “muzzle law”.

Under article 47 of the Charter of Fundamental Rights of the European Union, each person has a right to being heard by an impartial and independent tribunal. The rule of law is also a founding principle of the European Union. Poland was therefore given until 16 August to disband the disciplinary chamber, which was created in 2017, because of a lack of independence and impartiality, which is in violation of EU laws.

However, Poland’s Constitutional Court rejected the order of the European judges as unconstitutional.Poland has tried to defend its system on multiple occasions, but so far unsuccessfully. According to Jaroslaw Kaczynski, head of the PiS party, the Disciplinary Chamber will not be completely disbanded. Rather, the head of the Supreme Court of Poland had decided it would be frozen and will not receive new cases.

This situation would remain until a better system can be put in place later this year. Kaczynski said that the chamber would still function in the interim. He added that he did not recognize the ruling by the Europe Court of Justice as it went beyond the jurisdiction of the Court under the EU Treaties.Author: Hélorie Duval