Report from Jeff Smith.
On 30 March 2022, a webinar from the International Association of Judges was called to discuss what has occurred in the two years since the judicial protest march of Polish judges and their European colleagues. Given that the presenters included those from Ukraine, the webinar was indeed sobering.
There has been a continued erosion of the rule of law in Poland and for judicial independence in particular. Notwithstanding decisions of the European human rights court, the government has continued to replace judges with political appointments, including on disciplinary and senior courts.
COVID-19 has been a pretext to take away further citizens’ rights and freedom with one speaker describing it as the destruction of the rule of law to remove the ability of citizens to access the courts. The Ombudsman in Poland has continually sought to have political appointments recuse themselves from decisions involving other judges. They have consistently refused. This is combined with legal impunity for politicians and government officials who violate the law.
One speaker drew a clear parallel between the way in which decisions about the Russian courts made by the European Court of Human Rights were not enforced there and how Poland adopted a similar approach.
IAJ President Mr. Matos and Eva Wendler for the Association of European Administrative Judges described the effect of COVID-19 and the Ukrainian war not only on the rule of law in Poland but the destabilisation of Central Europe. It is clear that the significant number of refugees moving from Ukraine to Poland is going to have a significant further impact in that area in due course.
In short, the speakers agreed that the judicial system in Poland was under considerable stress and was breaking down through the deliberate actions of the legislature. Another Polish speaker spoke of the control of the population as a whole with no foreign journalists and EU representatives allowed into the country.
There is a trend to adopt regulations to limit civil rights. The actions against the judiciary have a freezing effect and also lead to legal uncertainty and have brought the legal system into disrepute.
This must be seen in the context of recent events where Poland has now become the NATO country closest to the current war in Ukraine. There are significant issues in Poland and increasing stress on the EU and the relationship with Poland and the rest of the NATO countries. Poland’s role is now being a bulwark against Russian expansion.
In that regard, we had several members of the judicial institutions from Ukraine. In my observation, the Ukrainian judicial system had become reasonably well developed in a fairly short time. They operate a national judicial system with all decisions and actions centralised.
As the war has progressed, this has meant that areas have to be removed from jurisdiction and come under martial law. About 140 courts have been closed and 48 are in occupied areas. A number of judges have been mobilised or joined the territorial defence.
So far as I was able to tell from the discussion, they have managed to maintain judicial operation outside the occupied areas, and the national system consisting of 5,363 judges has largely continued to operate although courts, particularly in those areas within or close to occupied areas, have not been able to operate.
In summary, the erosion of rights that has occurred as a result of COVID-19 and the reduction of judicial independence has been reflected to a lesser extent in other countries, including those that would be surprising to us, such as the Netherlands and England. It has never been more important for the world judiciary to unite to protect the role of the judiciary and its independence.