Concerns about draft law restricting judicial independence
10 January 2020

Concerns about draft law restricting judicial independence

Poland

Lawyers for Lawyers is concerned about the possible adoption of the so-called ‘Gag-act’ in Poland, a draft law that would put judges at risk of disciplinary action for their interpretation and application of the law, including EU and international law.

On 20 December 2019, the Polish House of Representatives (Sejm) passed a draft law that would put judges at risk of disciplinary action for their interpretation and application of the law, including EU and international law. The draft law would also stipulate that judges would face disciplinary penalties for legitimate criticism of judicial reforms. Now the bill will have to pass through the Senate in order to become law. It will be voted upon next week.

Lawyers in Poland and abroad have grave concerns about the draft law and the consequences this law would have on the independent judiciary in Poland. A non-independent judiciary directly affects the ability of lawyers to do their work effectively. Lawyers for Lawyers, as an organization committed to supporting colleague lawyers who are at risk in connection to their professional activities, shares these concerns:  “A democratic society depends on judges and lawyers who are independent of the state. This separation of powers is a cornerstone of democracy and essential to the observance of human rights. We share the concerns that our colleagues in Poland have about the proposed draft law and support them in these challenging times”, Irma van den Berg – President of Lawyers for Lawyers.

Background information

Reforms that could potentially threaten the independence of the Polish judiciary started in October 2015.

On 19 November 2019, the Court of Justice of the European Union (CJEU) delivered a ruling in the case A.K. and others (C-585/18, C-624/18, C-625/18), on a preliminary question by the Supreme Court of Poland. The preliminary question asked whether the recently established Disciplinary and Extraordinary Chambers of the Supreme Court in Poland could be considered to be independent.

The CJEU ruled that a court cannot be considered independent  “where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law.”

On 5 December 2019 the Supreme court of Poland applied the ruling of the Court of Justice of the EU,  and held that the Supreme Court’s Disciplinary Chamber was not an independent court. Shortly hereafter, the Polish House of Representatives (Sejm) passed the ‘Gag-act’.

March in defense of the Rule of Law

On 11 January, judges and lawyers from at least 14 countries will march in Warsaw in defence of human rights and the rule of law in Poland. The Warsaw Bar Association encourages attorneys to attend the march.