The Polish Minister of Justice may not simply transfer judges to higher or lower positions without giving reasons. This is the ruling of the European Court of Justice in a case concerning the independence of the judiciary in Poland.
And the European Court ruled, because a minister can now second a judge to a higher court at his own discretion and can also end this assignment just like that, the independence of the judiciary is no longer guaranteed. Also because the Minister of Justice is also the head of the Public Prosecution Office.
The Polish government said in its defense that it wanted to reform the legal system to tackle corruption for some time, but the court did not agree to this. The minister now does not have to explain why he was transferred to the judges, and the judge cannot appeal his demotion. According to the court, as a suspect, you are not sure whether you are being treated fairly, while this is one of the pillars of the rule of law.
The court now says Poland must establish rules for delegating judges to remove the risk of them being used “as a means of exercising political control over the content of court decisions”. The judge still has to approve the transfer, but according to the court, that’s not enough because that judge doesn’t know the underlying motive.
Polish law on EU law
Poland has been under fire in Europe for some time for reforms that endanger an independent judiciary. Poland’s ruling conservative party, PiS (Law and Justice) has been arguing with the European Commission about this for years. PiS does not want Europe to interfere in the Polish legal system.
The European Court of Justice has already imposed a penalty of 1 million a day on Poland for refusing to abolish a disciplinary chamber. This chamber, whose members are appointed by politicians, can dismiss or suspend judges and prosecutors and reprimand sentences the chamber does not like.
Early last month, the Polish Constitutional Court ruled that Polish law takes precedence over EU law if EU treaties and EU court decisions conflict with the Polish constitution. This goes against one of the EU’s most important principles that European law takes precedence over national law.
Hungary was not allowed to prosecute migrant aides
The European Court of Justice also ruled today that Hungary cannot prosecute individuals or organizations that assist migrants to apply for asylum. The European Commission brought the case because Hungary has already been reprimanded several times by the European Commission and the European Court for its asylum policy.
In 2018, Hungary passed a new law criminalizing aiding immigrants. If aid workers inform migrants of asylum procedures or help, for example, by providing food or clothing, they can be sentenced to a maximum of one year in prison. Europe’s highest court has now ruled that this measure is inconsistent with European asylum legislation.
The law became known as the “Stop Soros Act”. Hungarian Prime Minister Orban has accused Hungarian-American billionaire George Soros of encouraging mass immigration during the 2015 refugee crisis to undermine Europe. He will do so through the fund he has created, through which he supports initiatives that affect, among other things, the rule of law and freedom of the press as well as refugee protection. Soros rejects these allegations and has in the past accused Orban of creating a mafia state.
