Politicization of the Judiciary in Poland

Dear Representative Royce, Representative Engel, Senator Corker, and Senator Menendez:

We write on behalf of the New York City Bar Association to convey our concerns about the impending final step in the politicization of the Polish judiciary.[1] On July 3, 2018, when a new law passed in December 2017 goes into final effect, more than 40 percent of the Polish Supreme Court will be required by law to seek the President of Poland’s permission to continue to serve on the Court. The law provides the President of Poland with the discretionary authority to terminate all Supreme Court judges age 65 and over, even those whose terms are not completed, an act which by itself violates the Polish constitution.

Although we continue to appreciate the State Department’s previous statements supporting judicial independence and separation of powers in Poland, we believe it is imperative that the U.S. government clearly denounce the Polish government’s plan to place its country’s judiciary under legislative and executive control through this final legislative stroke. At the time of our previous letter raising these concerns in September 2017, the U.S. government had sufficient time to work with its allies in Warsaw to protect the integrity of the Polish judiciary.[2] However, time is now of the essence, and we urge you to take renewed action to support judicial independence and the rule of law in Poland.

As you are aware, in December 2017 the Polish government passed an amended version of the Law on the Supreme Court, which requires members of the Polish Supreme Court to affirmatively ask the President of Poland for permission to remain on the Court after they reach the age of 65.[3] When this law goes into effect on July 3, 2018, it will force 30 of the Court’s 70 justices to issue such requests to the president’s office. Those justices who do not make a request will be automatically terminated from the Court. Those justices that do make such requests can have their request to remain denied by the President of Poland at his discretion—indeed, no reason for a denial need be given. Moreover, the law also authorizes the Polish government to expand the Supreme Court by 50 seats, to 120 judges. By expanding the Court and simultaneously forcing the resignation of up to 30 judges, the Polish government will provide itself with the ability to pack the Court with judges who are allies of the governing political party. There can be no doubt that this statutory scheme has the singular goal of politicizing the Supreme Court.

The Polish government’s elimination of judicial independence does not stop at the Supreme Court. The July 3 deadline will also bring about the establishment of the “extraordinary appeal” body—a quasi-judicial entity that will have the power to rehear cases that have been adjudicated by common or martial law courts within the past twenty years. The body will be empowered to reconsider matters pertaining to the facts and law of cases taken up for review and will have the authority to issue new and unreviewable decisions. The body will include so-called “lay judges”—individuals appointed by the Polish Senate who need not have any legal training. The existence of a body containing political appointees, and politically-approved judges, that can reverse decisions that have been in place already for decades will severely undermine judicial certainty and the rule of law in Poland.

The politicized manipulation of the Supreme Court’s composition and the establishment of the “extraordinary appeal” body will violate widely accepted international standards on judicial independence. The pending changes will threaten fair trial rights under the International Covenant on Civil and Political Rights, including the right to be heard by an independent and impartial tribunal, the right to equal treatment under the law, and general due process rights that are also enshrined in the Universal Declaration of Human Rights.[4] If these efforts to manipulate the Polish judiciary go into effect on July 3, Poland will be in direct violation of internationally accepted legal norms that it is obligated to respect. Indeed, the European Commission has already identified the pending changes as a threat to the “values” of the Treaty on the European Union and in December 2017, the Commission took the unprecedented step of triggering a disciplinary hearing against Poland under Article 7 of the Treaty.[5] For the first time in the EU’s history, a member state has been identified as a threat to the rule of law in Europe.

We urge you, as congressional leaders, to take steps to ensure that the U.S. government clearly communicates to the Polish President, Prime Minister, and Law and Justice Party leaders its disapproval of the pending politicization of the Polish judiciary. To that end, we ask that you adopt congressional resolutions prior to July 3 calling upon the government of Poland to repeal the laws in question, or, at the very minimum, exempt current members of the Supreme Court from the retirement requirement. If formal resolutions cannot be passed in this short time frame, we encourage you, as congressional leaders, to send a letter to your Polish counterparts directly raising these concerns. We also urge you to highlight and convey disapproval of these developments in statements on the House and Senate floors.

As we have previously noted on several occasions, congressional leadership has always played a crucial role in the formulation and exercise of U.S. foreign policy, including policies that seek to promote respect for the rule of law abroad—indeed, for decades the executive branch has been subject to congressional directives that require the promotion of human rights to be a “principal goal” of U.S. foreign policy.[6] We hope that you will continue to play that role by demonstrating to the Polish government that the United States will not sit idle while the government of a key ally undermines judicial independence and the rule of law.

Respectfully,

Roger Juan Maldonado
President

Anil Kalhan
Chair, International Human Rights Committee

cc:

Hon. Chris Smith
Co-Chair, Congressional Caucus on Poland
U.S. House of Representatives
2373 Rayburn House Office Building
Washington, DC 20515

Hon. Dan Lipinski
Co-Chair, Congressional Caucus on Poland
U.S. House of Representatives
2346 Rayburn House Office Building
Washington, DC 20515

Hon. Marcy Kaptur
Co-Chair, Congressional Caucus on Poland
U.S. House of Representatives
2186 Rayburn House Office Building
Washington, DC 20515

Hon. Tim Murphy
Co-Chair, Congressional Caucus on Poland
U.S. House of Representatives
322 Cannon House Office Building
Washington, DC 20515

Ms. Sarah Becker
Poland Desk Officer
Office of Central European Affairs
Department of State
2201 C Street NW
HST Room 4230
Washington DC 20520

Mr. Frans Timmermans
First Vice President
European Commission
Rue de la Loi/Wetstraat 200
1049 Brussels
Belgium