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Poland’s Leader Finds an Ally in Trump, Even as He Brings Courts to Heel

WARSAW — When President Trump visited Warsaw in the summer of 2017, the Polish government was busy setting up a transformation of the nation’s judicial system in ways that critics found deeply troubling and undemocratic.

Opponents of the overhauls hoped that Mr. Trump would use his visit to urge the government to change course. He did not. Instead, greeted by cheering throngs — many bused in from rural villages where the governing party’s support runs deepest — he warned of the dangers of “radical Islamic terrorism” and “the creep of government bureaucracy.”

“It seems to me it was a green light to push ahead with the radical reforms,” said Adam Bodnar, the Polish ombudsman, a state entity that protects civil liberties.

Now, as President Andrzej Duda sets off for his first official visit to the White House on Tuesday, the project to reshape the courts is nearly complete after a purge of the Supreme Court through the forced retirements of one-third of the justices.

American diplomats have remained largely silent, even as a deep chorus of critics of the government, at home and abroad, have condemned the changes as an attempt to undermine the independence of the judiciary.

The American silence is all the more notable in contrast to escalating steps toward sanctions by Brussels, which has become so concerned about Poland’s anti-democratic drift that it has moved to invoke Article 7 of the European Union treaty for a potential breach of obligations as a member of the bloc.

If the process goes to its conclusion, Poland could lose its voting rights in the European Union. The bloc has also threatened Poland with the loss of millions of euros of European Union subsidies.

The Polish government has argued that the changes are needed to rid the courts of any vestiges of the Communist era. But the effort has sown turmoil at home as thousands of protesters routinely fill the streets in outrage. What prevails is confusion.

A law forcing Supreme Court judges to retire at 65 — even if they are currently serving their six-year terms — is being challenged before the European Court of Justice; by the European Commission, the bloc’s executive arm; and in a case on behalf of the dismissed judges.

With Polish judges fighting to keep their jobs, it is unclear who is in charge of the court, which judges can sit on which cases, and whether their rulings will later be called into question.

The government’s changes have inspired resistance from the nation’s judges, who have all but boycotted their own posts.

Of about 10,000 qualified judges in the nation, only around 200 judges and other “applicants” have submitted their names to fill dozens of open positions on the Supreme Court. At least 99 cases have had to be postponed as there are simply not enough judges.

Poland’s top Supreme Court justice, Malgorzata Gersdorf, who was targeted by the new law, has refused to retire, and the person named by Mr. Duda as her replacement said he did not consider himself to be the head of the court.

Judges who have publicly condemned the new law have found themselves hauled before disciplinary chambers, denounced in the right-wing media and threatened by party supporters.

Despite the turmoil and the prospect of sanctions from Brussels, Poland’s political leaders have been undeterred.

Some leading members of the government have said that Poland would ignore any injunction from the European Court of Justice to stop the retirements.

Mr. Duda dismissed the bloc of nations as an “imaginary community.”

“When our affairs are resolved, we’ll deal with the European affairs,” he said last week during a meeting with voters in Lezajsk, a small town in southeastern Poland. “But for now, they should leave us in peace and let us fix Poland. Poles have the right to have their expectations toward Europe, especially the Europe that left us at the mercy of Russians in 1945.”

Since taking power in 2015, the right-wing Law and Justice party has made reshaping the courts the center of its nationalist agenda, and it has gradually accomplished many of its goals.

First, the government moved on the Constitutional Tribunal — which decides whether laws passed by Parliament violate the Constitution — forcing out its president, who had been critical of changes, along with several other judges and replacing them with loyalists.

Next, it exerted control over the lower courts by giving the justice minister, Zbigniew Ziobro, the right to dismiss judges. The country’s prosecutors were also placed under his control.

The party then gained control over the National Judiciary Council, which selects judges, before it took its final step: purging and recasting the Supreme Court.

The government also created a new disciplinary chamber that critics fear could be used to punish wayward judges and a new panel that will have oversight over elections.

“The Supreme Court is Poland’s guarantee of freedom that will now become totally politicized,” said Judge Krystian Markiewicz, the head of the Polish judges’ association, Iustitia.

“The two chambers that have been created will serve as tools of oppression,” he said. “The first chamber will decide about the validity of elections. The second will have the power to take disciplinary action against judges, prosecutors and lawyers, which will include immediate suspension or dismissal.”

The European Network of Councils of the Judiciary, which represents the judiciaries of European Union member states, announced on Monday that Poland had been suspended as a member, finding that the country’s judiciary could no longer be deemed independent from political influence.

American diplomats have been mostly mute on the issue.

The departing ambassador to Poland, Paul W. Jones, wrote a memo to embassy employees and his successor, saying said it was best to tread lightly on rule of law issues, according to two people who read it.

The new ambassador, Georgette Mosbacher, made no mention of the issue at a welcoming reception for Polish lawmakers last week.

The United States Embassy in Warsaw declined to comment on the memo.

“The United States regularly reaffirms that a strong and healthy democracy in Poland is a vital component of U.S.-Polish relations,” the embassy said in a statement. “Regarding judicial reforms, the United States stands by the principles of separation of powers and judicial independence.”

In what is perhaps a greater threat to the Polish government than any action taken by Brussels, the business community has started to take notice.

In a recent report, the credit rating agency Moody’s warned that “policy unpredictability” is a relevant concern since “judicial reform could potentially erode the rule of law and dampen economic sentiment.”

One of Poland’s most respected business newspapers, Dziennik Gazeta Prawna, reported that the nation’s largest law firms were advising foreign companies not to take any legal actions in Poland.

In a survey among 50 lawyers from major law firms, 82 percent of those interviewed said their clients were nervous about the court system, with around 40 percent preferring legal disputes to be resolved by foreign courts.

“How can any foreign company think that it’s a good idea to invest in a country where there is no legal certainty and continuity?” Judge Markiewicz said. “If there is no certainty of the law, no rulings can ever be deemed final. There’ll be no trust in law any more.”

The Ministry of Justice, responding to written questions, said the paper’s study was flawed.

“As far as the ministry is aware, there is no statistical data involving a representative group of foreign investors that would confirm that they are concerned about investing in Poland,” it said.

The ministry also said that it was too soon to form any judgment on the work of the Supreme Court because the overhaul was not yet complete.

For now, it is the nation’s judges who have been the ones leading the resistance to the changes — often at great professional risk.

Judge Bartlomiej Przymusinski, 41, is one of those facing disciplinary action after publicly criticizing the overhauls, calling the process of nominating new judges to the Supreme Court a “beauty pageant.”

He said that if the government ignored any ruling from the European Court of Justice, it would be a “disaster” with profound consequences, likening it to Britain’s decision to leave the bloc, a move commonly known as Brexit.

“Defying an E.C.J. ruling would be tantamount to Poland’s legal Polexit, which could lead to Poland’s rulings not being recognized in the E.U.,” he said.

Prime Minister Mateusz Morawiecki dismissed those concerns, recently telling reporters that other nations, including France, Germany and Italy, had challenged rulings by the European court without causing such a stir.

“This isn’t the court of the final judgment, it’s a European court,” he said. “There are 52 pending cases about defying the rulings of the European Court of Justice. And nobody there is making a big deal out of this — unlike the clamor the opposition is trying to drum up here.”

Judge Przymusinski, the spokesman of the judges’ association, said that the resistance of the judges themselves had proved to be a challenge for the government, and he predicted increasingly punitive measures.

“This government has called into life a massive punitive machinery that exists only to keep unruly judges in check,” he said. “That’s what we have been saying all along — and we have just been proven right as we now face disciplinary actions for saying just that.”

Source: NYT > World

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