European justice will decide this Wednesday: should community subsidies be conditional on respect for the rule of law? A verdict particularly awaited by certain magistrates in Poland, fighting for their independence for six years. Reporting.
A hearing first held behind closed doors without notifying the person concerned, then the announcement of the verdict which was returned to him by fax, against all odds. This is the astonishing process by which Piotr Gąciarek was sanctioned on November 24. Suddenly, this 47-year-old magistrate saw his salary cut by 40%, in addition to being relieved of his duties at the Warsaw District Court. So decided the disciplinary chamber of the Supreme Court, a body perceived, by many lawyers, as a tool of repression of the magistrates denouncing the attack on the separation of powers.
It is also the national-conservative majority of Law and Justice (PiS), the ruling party in Poland, which set it up four years ago. “I was presented with a fait accompli, even my lawyers could not be present to defend me, no one was aware of anything”, regrets the one who is leading the fight for the independence of the courts. The wrong of which he is accused? The refusal, in September, to sit alongside a judge appointed by the highly politicized Council for the Judiciary (KRS), the body responsible for appointing judges in Poland.
But Piotr Gąciarek does not regret his gesture, and he insists: this objection was in perfect compliance with European law. “This judge had no right to sit because he was appointed illegally. I wasn’t going to sit with someone who didn’t have the right to be there! “argues this bon vivant. Because neither the Court of Justice of the European Union (CJEU) nor the European Court of Human Rights considers the KRS to be legitimate. Under political control since 2017, more than 90% of its members now come from political appointments, and of the 10,000 judges in Poland, more than a thousand were appointed by the KRS.
Mr. Gąciarek’s suspension embodies the legal chaos in which the country has been plunged since the PiS came to power in 2015. Faced with the dismantling of the rule of law, ranging from the reining in of common law courts to the Supreme Court, there are many magistrates who enter into resistance in the name of compliance with the judgments of the CJEU. Even if it means paying the price for the disciplinary arsenal of the PiS. Adopted in January 2020, the “muzzle law”, to name only one, aims to sanction any magistrate engaging in “activities questioning the status of a judge, the legality of his appointment or the authority of a constitutional body”.
“I could be suspended at any time”
On October 7, the battle of the magistrates took an unprecedented turn. The Constitutional Court, subservient to power, then called into question the primacy of European law, the basis of Community construction. A judgment that would serve as a reason for Warsaw to no longer submit to the orders of European justice, according to some observers.
I wasn’t going to sit with someone who didn’t have the right to be there!
In the name of the precedence of European treaties, Agnieszka Niklas-Bibik did not hesitate, this fall, to challenge the legality of a judge from a political appointment. Result: this judge of the district court of Słupsk, in the north of Poland, was demoted and dismissed for thirty days by the president of her court, appointed by Zbigniew Ziobro, the Minister of Justice. Overnight, all of his files were taken away from him. A blow for the one who has put on the judge’s robe for 25 years. “If I had to do it again, however, I wouldn’t change anything, it is the duty of the judge to ensure that the court respects the law”, says this expert from the European jurisdiction, still under disciplinary proceedings. . “I could be suspended at any time, I am aware of that. The aim with this kind of suspension is to spread a “chilling effect” on other judges, preventing them from challenging the questionable status of certain magistrates in the future. »
Despite the calls to order from Brussels, Warsaw is stubborn in its overhaul of the judicial system, which obeys the “good change” wanted by Jarosław Kaczyński. At the end of the legislative elections in 2019, the strong man of the PiS had assured that he wanted to get rid of this “last barricade” that are the courts. There is an urgent need to “polish” the judicial system still imbued, according to him, with the communist heritage.
Nonsense, in the opinion of Krystian Markiewicz, judge and president of Iustitia, an association of judges critical of power. At 45, he is among the average age of judges in Poland: at the time of the democratic transition, the majority of them were teenagers, he says in his court office in Katowice, in the south of the country. . “Rather, we are dealing with a government that seeks to undermine checks and balances, that does not want to be accountable. The announced changes were supposed to make justice more efficient. But in reality, it is not so, the system only gets bogged down more. »
Verdict in sight
Nothing, or almost nothing, seems to bend the PiS for six years. Not even the daily fine of one million euros – still unpaid to this day – for the maintenance of the disciplinary regime, deemed contrary to European law by the CJEU. Even less the infringement procedure for “serious violation” of the democratic principles of the EU, initiated in 2017, which leads nowhere.
But after more than six years of deadlock, is the rule of law crisis in Poland about to cross a threshold? This Wednesday, February 16, the Court of Justice of the EU must rule on the legality of the mechanism of conditionality of the payment of subsidies to respect for the rule of law. Its activation could well deprive Poland of part of the funds for the next multi-annual budget (2021-2027) accompanied by the post-pandemic recovery plan of 750 billion euros. Never seen.
Hitting the wallet to obtain democratic guarantees: “blackmail”, Warsaw and Budapest are irritated. A prospect which, nevertheless, arouses the optimism of Krystian Markiewicz. “The EU finally seems to apply its own principles a little more, after years of avoiding confrontation with Poland,” he said. Icon of the independence of justice in Poland, Paweł Juszczyszyn, will also keep an eye on this expected verdict. This magistrate has been on the floor for two years for having challenged the politicization of the process of appointing judges. His salary having been cut by almost half, he must rely on external financial support. “I have a family and a credit to repay. Their intention was to force me out of the profession,” he says.
Paweł Juszczyszyn hopes for a return to normal. But he first wishes to warn Brussels about the bill proposed in early February by President Andrzej Duda. Brandished as a compromise to release EU funds, this legislative text would aim to liquidate the disciplinary chamber to better replace it with a “Chamber of professional responsibility”. However, not only would the functions be similar to the previous one, “but this is only a facade measure which would in no way solve the problem of the lack of independence of certain judges”, denounces Mr. Juszczyszyn.
“This is the last moment to act to save the rule of law in Poland”, abounds for her part Eliza Rutynowska, lawyer for the Obywatelskiego Rozwoju Forum, a Polish pro-democracy think tank. The EU must stand firm against Poland because, in its view, the future of the European project is also at stake. “It’s not too late, but we can’t afford to back down. Do we want to leave things to Member States that undermine its values of the Union within it? It is not a Polexit that the European Commission should fear, but rather the autocracy that is taking hold more in Poland. Other states might want to follow suit and thereby sabotage the European project from within.