“Modern European democracies cannot function without truly independent judiciaries. Poland’s authorities should take further steps to restore full independence of the judiciary and act to resolve discord and deadlock that continue to affect the functioning and the credibility of some of the judicial institutions. Judges and prosecutors must be shielded from undue pressure,” Dunja Mijatović, the Council of Europe Commissioner for Human Rights, said a few days ago at the close of a five-day visit to Poland dealing with the topics of independence of the judiciary and the prosecution service.

The voice of the Council of Europe also reflects the opinion of the European Commission. The EU’s executive body on 19 February warned that it would take action against the Warsaw government if it continued harassing Polish judges that consult with the European Court of Justice (ECJ). The EC was addressing a letter from Poland’s biggest judges association, Iustitia, which asked it to act in defense of judicial freedom.

“Every Polish judge is also a European judge, so no one should interfere with the right of a judge to pose questions to the European Court of Justice,” said Frans Timmermans, First Vice-President of the European Commission and the EU official responsible for the judiciary and the rule of law.

What comes next?

Last December, the ECJ ruled that Poland must immediately suspend judicial reforms – until a final court ruling – that imposed an earlier retirement age – 65 instead of 70 – for justices on the Constitutional Tribunal. The law allowed them to stay on past that age only if they gained presidential approval. The measure would have forced 40 percent of the court's judges, including the chief justice, into early retirement.

Poland’s governing Law and Justice (PiS) party has been in conflict with the EC over its judicial reforms since the beginning of 2016. Last year, however, was a turning point for the EU-Poland relations. Last July, the ECJ responded to a query from an Irish court on the independence of the Polish judicial system by saying foreign courts have to assess whether suspects face the risk of an unfair trial if they are extradited to Poland. This was unprecedented between the justice systems of two EU countries.

The rule of law situation first escalated in December 2017, when the EC launched the so-called Article 7 procedure against Poland over changes to the judicial system.

Lately, given the charged political situation ahead of the EP elections across Europe, the rule of law issue – primarily related to Poland and Hungary – has become an important campaign topic.

Still, sanction procedures against both Poland and Hungary over democracy and judicial independence are held back in the Council of Ministers due to procedural issues, the reluctance of Romania, which currently holds the Council’s rotating presidency, and the lack of political consensus.

The EC therefore is especially keen to seek legal guidance - and legitimation - from the Luxembourg court when it comes to Poland.

On Tuesday the ECJ held its latest, seven-hour-long hearing relating to three pending cases on the rule of law and judiciary situation in the country. The attorney general of the ECJ will present an opinion on the 23 May, followed by the final court ruling. Sources speaking to Liberties present at the Luxembourg hearing said that, based on the questions asked, the pro-EU law arguments may resonate with the judges.

Polish Ombudsman: fight for judicial independence is far from over

Poland’s ombudsman for human rights, Dr Adam Bodnar, on Wednesday at a press conference in the European Parliament warned that the fight for the independence of the Polish judiciary is far from over. “You cannot be a loyal member of the EU without having an independent judiciary. The mutual cooperation of justice systems, courts, prosecutors’ offices depends a lot on the rule of law standards and depends a lot on the effectiveness and smooth, independent operation of the judiciary.”

Bodnar also noted that the ECJ decision from last year suspending the retirement of Polish Constitutional Court judges was “heavily celebrated in Poland and would not have happened without the support of the Polish civil society, hence it enjoyed strong support from citizens and non-political actors”. Bodnar also welcomed the report of the European Stability Initiative (ESI), presented on Wednesday in Brussels, focusing primarily on the disciplinary measures against Polish judges.

One of the authors of the ESI report, Piotr Buras, warned that a Polish judge given a case today that is either politically sensitive or involves interests of prominent party or government figures is not protected against external interventions or pressure.

According to the ESI report, the Polish minister of justice may under current rules threaten, pressure or punish judges, noting that “new disciplinary measures make all too easy” for the government to exert influence over the judiciary.

Therefore, the report calls on the European Commission to immediately launch another infringement procedure with the aim to restore the independence of the courts. The infringement should focus on the new disciplinary regime of judges to restore their independence at work.

Buras argues that the timing is far from ideal with the EP election campaign in full swing. Still, according to him, the freeze on firing Constitutional Court judges shows that despite the debated effectiveness of the currently available legal instruments to protect rule of law, the EU and its citizens have more than just hope that their fundamental rights are preserved.