GENEVA (25 June 2018) – A UN human rights expert has criticised Poland’s efforts to reform the judiciary, saying the Government is planning a clear-out of senior judges to be replaced by magistrates recommended by a council of mostly political appointees of the current ruling majority.
“I am very worried about the far-reaching adverse effects that the reform of the judiciary is having – and will have – on the independence of Polish courts and tribunals,” said Diego García-Sayán, the Special Rapporteur on the independence of judges and lawyers, told the Human Rights Council.
“I appreciate the willingness of the Polish Government to listen to the concerns that I – along with several other international and regional institutions – have raised in relation to its judicial reform. Nevertheless, the amendments introduced by the governing majority are of a cosmetic nature, at best, and absolutely insufficient to address the serious concerns I expressed in my report,” added Diego García-Sayán, who visited Poland from 23 to 27 October 2017.
“Approximately 40 percent of Supreme Court judges, including the court’s president, could be forced to retire after 3 July 2018, before the end of their legal terms. This constitutes a serious blow to the principle of judicial independence, and a flagrant breach of the principle of irremovability of judges.”
The judges who leave the bench as a result of the lowering of the retirement age will be replaced by new judges appointed by the President of the Republic upon recommendation of the newly constituted National Council of the Judiciary, which will be largely dominated by the political appointees of the current ruling majority.
García-Sayán said the President will be able to determine almost completely the composition of two new chambers of the Supreme Court: the Extraordinary Control and Public Affairs Chamber and the Disciplinary Chamber.
The Extraordinary Chamber will have the power to review any final judgment issued by Polish courts in the last 20 years and will also be entrusted with the examination of politically sensitive cases (electoral disputes, validation of elections and referendums etc.). The Disciplinary Chamber will have jurisdiction over disciplinary cases of judges sitting in “ordinary chambers”.
“The amendments to the Act on the National Council of the Judiciary do not address any of the concerns I expressed in my report,” said the UN expert. He said the application of the Act resulted in the arbitrary dismissal of the 15 judge-members of the Council and in the creation of a ‘new’ National Council of the Judiciary dominated by political appointees.
“In my report on national judicial councils, I made it clear that judge members of the council should be elected by their peers following methods guaranteeing the widest representation of the judiciary at all levels,” García-Sayán said.
“I wish to reiterate once again that any reform of the judiciary should aim at strengthening the independence and impartiality of the judiciary, not at bringing the judicial system under the control of the executive and legislative branches.
“The reform should be the result of an open, fair and transparent process, and should be carried out in accordance with existing norms and standards relating to the independence of the judiciary, the separation of powers and the rule of law.”
Mr. Diego García-Sayán took up his functions as UN Special Rapporteur on the independence of judges and lawyers in December 2016. Mr. García-Sayán was formerly a judge of the Inter-American Court of Human Rights for two consecutive terms. During his tenure, he was elected Vice-President of the Court (2008-2009) and President of the Court for two consecutive terms (2009-2013). He has long-standing experience working on human rights issues in a variety of settings, including for the United Nations and the Organization of American States. Among others, he was: Representative of the UN Secretary-General for the Peace Agreements at El Salvador and for the subsequent verification of the agreements reporting directly to the Security Council; member and Chairperson of the UN Working Group on Enforced or Involuntary Disappearances during several years; member of the Redesign Panel on the United Nations System of Administration of Justice, appointed by the UN Secretary-General in 2006; Head of the Electoral Mission of the Organisation of American States (OAs) in Guatemala during the general elections (2007). Learn more.
Read the Independent Expert’s statement to the Human Rights Council.
The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.
UN Human Rights, country page – Poland
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