The injustice done to Poland, a denial of democracy

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Patrick Edery is CEO of Partenaire Europe, a consultancy firm originating from Central Europe.

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For nearly two years, Poland has become, within the European Union, the symbol of absolute evil. Particularly outrageous and warlike elements of language are used against her: the most striking example to date was the threat to engage, against her, Article 7 of the EU Treaty, qualified as a “nuclear weapon”. This Wednesday, December 20, 2017, the European Commission finally decided to carry out this threat because of "a clear risk of a serious breach of the rule of law in Poland". But then why this

Have Polish elected officials been arrested or protests re-apprehended with disproportionate force? No, it took place in Spain.

decision a few days before Christmas, and when a new Polish Prime Minister had just been appointed?

Have Polish elected officials been arrested or protests re-apprehended with disproportionate force? No, it took place in Spain. Perhaps then because a journalist, who accused the wife of a Prime Minister by name of having an account in Panama to harbor bribes there, was assassinated in the explosion of her vehicle? No, it happened in Malta, transformed into a “mafia island”, according to the words of the sons of the victim. Have far-right ministers been appointed to royal portfolios? It happened in Austria. Perhaps Poland has decided to put in place an energy policy which risks jeopardizing the security of all of central Europe, and which is in breach of the legislation defined by Brussels? No longer, it's Germany. Maybe it hasn't met the Maastricht criteria for years and in 2018 will break its loan record, the biggest in the EU? No, this time it's us.

For the first time in its history, the European Commission has triggered Article 7. Also, in view of the proven actions of other members, the Polish "risk" of infringement must be particularly serious.

The 5 commandments from Brussels to Warsaw

According to the Commission: “As a result of judicial reforms in Poland, the country's judiciary is now under the political control of the ruling majority.” In the recommendation it adopted on Wednesday, the Commission sets out a series of 5 measures that the Polish authorities must take to allay its concerns. Note that the Commission speaks of risks and concerns. There would therefore be no factual finding on the part of the Commission of breach of the rule of law? Let's continue, the Polish authorities are invited by Brussels to:

First measure: "Amend the law on the Supreme Court, so as not to reduce the retirement age of the judges currently in office, to remove the discretionary power available to the president as to the extension of the mandate of the judges of the Supreme Court and to abolish the extraordinary appeal procedure, which provides for the possibility of challenging final judgments rendered several years earlier”.

The Supreme Court is the equivalent of the Court of Cassation in France. The new Polish law provides that judges over the age of 65 will be automatically retired. This implies that judges born in the 50s and who were magistrates under the communist regime and in particular during the state of siege will be targeted. This law also allows citizens who consider themselves victims of an unfair trial, exceptionally for the past 20 years, to request a review. The objective displayed here is twofold: to decommunize the last Polish power which had not been so when the wall came down, and to renew a judicial power considered as nepotistic.

Second measurement : “Amend the law on the National Judicial Council, so as not to terminate the mandate of the judge members and to ensure that the new system of appointment continues to guarantee the election of the judge members by their peers.”

Until now, out of the 25 member judges of the National Council of the Judiciary, 15 were appointed by other magistrates, without any control by the citizens. From now on, these 15 magistrates will be appointed by the deputies. Each parliamentary group cannot propose more than 9 judges, and each group must be able to appoint at least one. And the list of these 15 judges will have to receive 3/5 of the votes of the National Assembly.

Isn't it more democratic that the “judges of judges”, instead of co-opting each other (appointed among themselves), are appointed by the elected representatives of the people? Admittedly, judges are experts, but isn't leaving this decision-making to them a tipping point towards technocracy?

Third measure "Amend or repeal the law on the organization of common law courts, in particular to remove the new pension scheme applicable to judges, including the discretionary power available to the Minister of Justice with regard to extending the mandate of judges and to appoint and dismiss the presidents of the courts.”

These are purely administrative measures. The law reform provides for cases to be assigned to judges by lot, so court presidents essentially become 'administrative directors'.

Fourth measure: “Restore the independence and legitimacy of the Constitutional Tribunal, ensuring that its judges, president and vice-president are legally elected and that all its judgments are published and fully implemented; The highest Polish legal authorities.”

The European Commission and the Polish opposition have together contested the validity of the election of certain judges of the Constitutional Court (French equivalent of the Constitutional Council) and, by extension, the validity of the election of its President and Vice-President . However, the Commission and the opposition are made up of senior civil servants and politicians and not magistrates. In addition to the Constitutional Court, the equivalents of our Courts of Cassation (Supreme Court) and of the Council of State in Poland have, through their judgments, validated the legality of these elections. However, the “Polish Court of Cassation”, the Supreme Court, cannot be accused of leanings towards the party in power in Poland. In addition to the fact that a large part of the reforms concern its magistrates, it regularly opposes, through press releases, the party in power in Poland. Its president even participated in and spoke at at least one demonstration organized by the opposition.

Fifth measure: “Refrain from actions and public statements that could further undermine the legitimacy of the judiciary.”

Here the Commission imposes as a condition, in order to suspend proceedings, that persons legally and legitimately elected in a member country do not address all the subjects of their choice in the way they see fit. In other words, a Polish elected official, if he considers that the judiciary is corrupt, does not have the right to say so, if he wants his country not to be sanctioned by the EU.

Everyone will judge in his soul and conscience these 5 measures. And to do this, it would be good to have in mind some

Mr. Timmermans, 1st Vice-President of the Commission, in charge of the "Polish file" within the Commission is appointed and not elected

facts.

Mr. Timmermans a political commissar?

The first is that Mr. Timmermans, 1st Vice-President of the Commission, in charge of the "Polish file" within the Commission is appointed and not elected. Admittedly, he is a former social-liberal deputy, but his party only represents 5,7% of voters in the Netherlands.

Since the PiS came to power in Poland, Mr. Timmermans has repeated almost word for word the arguments of the liberal political parties that oppose the government in place in Warsaw. We should also remember that Mr. Timmermans' "Polish guarantee" is the President of the European Council, a liberal, Mr. Tusk. The latter is the founder of the main political opposition party to the government in Poland. Moreover, he is still old enough to return to business in his country. If Mr. Timmermans gets his way and disqualifies the ruling party in Warsaw, Mr. Tusk would be the primary beneficiary of this change. It must be clearly understood that Mr. Timmermans, who has been condemning the Polish government for two years without trial, only has the power of investigation.

For the last 3 centuries Poland has survived the empires and dictatorships that wanted to submit it. It will surely be the same with this new liberal technocracy. Can we say the same?

Why martyr Poland?

Even beyond the question of the merits of this action, why is Brussels threatening Poland with a procedure that everyone knows is doomed to failure? In fact, to go through with this procedure requires the unanimity of the States and Hungary has already announced that it would oppose it. Why not take Warsaw to the Court of Justice of the European Union (CJEU)? It does not require the consent of the Member States but on the other hand makes legal and not political decisions. Does this mean that the violation has not been established? That there is only a "risk"? Admittedly, the Commission referred the case to the CJEU, but for sic: "discrimination based on sex due to the introduction of a different retirement age for female judges (60 years old) and male judges (65 years old )”.

For the good of Europe, Poland must not submit.

Many liberal party leaders accuse Poland of all Europe's ills, but has the PiS been in power for 20 years? Isn't this "Polish" affair an illustration of the increasingly worrying evolution of Europe? Some, like the President of the French Republic, propose to refound the EU But to replace it with what? No one really knows. Symbolically its foundations had already been shaken by the degrading treatment imposed on the Greek people against their will. We will not talk about the acronym designating the protesting Latin countries: PIGS (pigs in English). Is it now a question of doing the same with Poland, the living incarnation of this Christian cement? All that remains is to transform the EU into a blanket of lead replacing the foundations, walls and roof. Ultimately what is the goal? Create a new European above ground, without ties, without limits in his rights? To weaken states and deprive us of our identities?

For the last 3 centuries Poland has survived the empires and dictatorships that wanted to submit it. It will surely be the same with this new liberal technocracy. Can we say the same?