Poland faces EU legal action over reforms undermining judicial independence

Poland’s conservative government is facing legal action by the European Union over controversial judicial reforms adopted in April 2018 - the new Polish Law on the Supreme Court (‘the Law on the Supreme Court’). The European Union Commission and the Court of Justice of the European Union argue that these reforms threaten independence of the judges and are in violation of EU law. The EU action is in support of civil society and judges in Poland who have been pushing back against the government’s attempts to weaken judicial independence.

On 17 July 2019, the European Commission announced that it was moving ahead with the ongoing infringement procedure it had launched in April 2019 against new disciplinary rules for Polish judges. On 3 April 2019, the Commission launched the infringement procedure on the grounds that the new disciplinary regime undermines the judicial independence of Polish judges and does not ensure the necessary guarantees to protect judges from political control, as required by the Court of Justice of the EU. The Polish authorities have two months to take the necessary measures to comply with the Commission’s reasoned opinion and if Poland does not take appropriate measures, the Commission may decide to refer the case to the EU Court of Justice.

Separately, on 24 June 2019, the EU Court of Justice ruled that the April 2018 law that forced scores of Supreme Court judges into retirement violates EU law. The judges were replaced by others loyal to Poland’s ruling Law and Justice Party. In its judgment the European Court of Justice found that “the application of the measure lowering the retirement age of the judges of the Supreme Court to the judges in post within that court is not justified by a legitimate objective and undermines the principle of the irremovability of judges, that principle being essential to their independence,” and is illegal.

Additionally, on 17 July 2019, the European Court of Human Rights (ECtHR) said in a press release (See Communication of Grzeda v. Poland - judicial reform) that it would look into whether the judicial reform violated the rights of a Polish judge who was dismissed from his post at the National Council of the Judiciary before the end of his four-year term (Grzęda v. Poland case). The Government was asked to submit observations.

National and international human rights organisations also called on Poland’s government to repeal the problematic judicial legislation and reinstate judicial independence.

In his 500 page annual report published on 17 June 2019, Adam Bodnar, Poland’s Ombudsman said that Poland’s crisis over the rule of law also poses a growing threat to human rights in the country.

Furthermore in July 2019, Amnesty International released a report titled "Poland: Free Courts, Free People," calling on Polish authorities to “immediately stop" cracking down on judges and prosecutors and reinstate judicial independence.

Human Rights Watch said:

“Now it’s up to Poland to repeal this law and ensure affected judges are immediately reinstated or compensated for being sacked unlawfully, and also take steps to act on wider recommendations of EU institutions and its own ombudsman.”

As part of the reform, the ruling conservative government of the Law and Justice party (PiS) placed the judiciary under political dependency of the country's legislative and executive branches. Furthermore, the EU Commission stated that the new disciplinary regime no longer guarantees that cases against judges are processed within a reasonable timeframe, allowing judges to be permanently under the threat of pending cases, and it also affects judges' right of defence.

CIVICUS Monitor previously reported about the growing concerns that weakening the independence of the courts will undermine human rights such as exercising the rights to freedom of expression and assembly.

Expression

In June 2019, after his critical statement denouncing reports of the ill-treatment of a suspect in police custody, Poland’s Ombudsman, Adam Bodnar faced serious personal attacks from state media and some politicians. He received serious threats and was subjected to hate speech, including through online smear campaigns. International and regional actors released statements in solidarity and support of the Office of the Polish Commissioner for Human Rights (RPO).

In a joint statement issued by the European Network of National Human Rights Institutions (ENNHRI), the European Network of Equality Bodies (Equinet), the International Ombudsman Institute, the Global Alliance of National Human Rights Institutions (GANHRI) and the UN Office of the High Commission for Human Rights for Europe (OHCHR Europe), the organisations condemned the attacks and called on Polish authorities to “act in line with their long-standing international commitments by applying their powers to protect the RPO [Polish Commissioner for Human Rights (RPO)] and its staff”.

In its annual report, Bodnar also criticised increasing political control of state media.

The ruling Law and Justice party (PiS) suggested that it would continue its policy towards the media, announcing its plans to “repolonise” the country’s media if it won the general elections in October. PiS has long suggested that it would try to bring foreign-owned media outlets under Polish control, raising concerns of undermining the press. Opposition politicians and journalists fear that a move to push out foreign owners would be an attempt to silence critical voices and follow the Hungarian model where critical media outlets have closed.

At the same time, in May 2019, the Polish government submitted a case to the Court of Justice of the European Union challenging the EU’s Copyright Directive passed in March 2019. Article 17 of the Directive makes platforms like YouTube, Facebook and Google responsible for copyrighted material uploaded by users. The Directive has been criticised for containing vague definitions and may lead to online platforms over-filtering content rather than leave themselves open to legal risks. The Polish government argued that the Copyright Directive “may result in adopting regulations that are analogous to preventive censorship, which is forbidden not only in the Polish constitution but also in the EU treaties.” 

Peaceful Assembly

LGBT pride parades proceed, defying threats, hate speech and banning attempts

In June and July 2019, a number of LGBT pride parades took place in different cities in Poland, amid a toxic atmosphere of threats and hate speech, as well as counter-protests and attempts to ban pride parades as “LGBT-free” zones were declared by local authorities in some cities.

According to activists, around 30 such declarations of “LGBT-free” zones have been made so far by local authorities. National party officials of the ruling right-wing Law and Justice party (PiS) have reportedly explicitly encouraged the “LGBT-free” declarations. The message has been echoed by government-friendly media outlets. In July 2019, a conservative weekly newspaper, Gazeta Polska, announced it would distribute “LGBT-free zone” stickers with its next issue. The decision has been condemned by the US Ambassador to Poland and the court ordered Gazeta Polska to halt the distribution of "LGBT-free zone" stickers included in the issue. The stickers show a black cross superimposed on a rainbow flag.

Nonetheless, LGBT persons and supporters for equal rights defied threats and took part in the Equality Marches held in different cities, in some places behind heavy police cordons.

On 8 June 2019, tens of thousands of people rallied in Warsaw demanding equal rights for LGBT people. The pride parade in Warsaw was reportedly the largest in Central and Eastern Europe and was joined by Warsaw’s mayor, Rafal Trzaskowski, for the first time as well as by foreign diplomats from Canada, the United States and other Western nations to show their support for basic human rights. Additionally, Poland saw two dozen smaller pride parades in other cities, where some were marred by violations of the freedoms to peaceful assembly and expression.

Some mayors have tried to ban pride parades, usually citing security concerns. For example, the pride parade in the south-eastern Polish city of Rzeszow was initially banned on grounds of security after dozens of applications to hold counter-demonstrations were submitted. However, the court overturned the city’s ban, ruling that “the mayor should have taken action to prevent violence rather than prohibiting the parade.” The march in Rzeszow was held on 22 June 2019 under heavy police protection. According to media reports, around 30 masked counter protesters threw eggs at the participants as they marched behind a police cordon.

On 20 July 2019, hundreds of LGBT people and supporters marched through the streets of the north-eastern Polish city of Bialystok as a number of counter protests were held against them. The march was marred by violence from gay rights opponents as they reportedly threw flash bombs, rocks and glass bottles at the marchers. The police arrested 25 people after the attacks.

The LGBT movement is currently threatened by the ruling conservative party and government that has portrayed it in recent months as posing a threat to families and children. Anti-LGBT rhetoric has been made a campaign issue by the PiS party ahead of October's general election. Jaroslaw Kaczynski, the leader of the PiS party, has described the LGBT community as a foreign import that threatens Poland’s national identity.