The Venice Commission, an advisory body of the Council of Europe, has analysed the legal reforms being proposed by Polish justice minister Adam Bodnar, and has advised against Bodnar’s plans for a wholesale purge of judges appointed during the lifetime of the last Law and Justice (PiS) party government, and against his plans for a purge of the verdicts these judges have given.
Judicial reforms enacted by the then-PiS government drew criticism from the Council of Europe and the European Court of Justice (ECJ), and the reforms were also given as the reason for the European Commission blocking tens of billions of euros in funding.
On entering government in December 2024, one of the new Polish government’s central election pledges under Prime Minister Donald Tusk was to reverse the changes to the judicial system that the European Union deemed to have undermined the rule of law.
It was the government that had asked for the opinion of the Venice Commission, and although Bodnar claimed that body has backed the direction of travel the Tusk administration has proposed, the body’s overall conclusion included a number of concerns
On October 14, the Venice Commission commented on the government’s proposals to invalidate decisions on the promotion of judges made by the National Judicial Council (KRS), the body charged with the responsibility of making recommendations on judicial appointments, and to question judgments made with the participation of the KRS.
It said in its remarks that “returning to the rule of law cannot be allowed to lead to a breakdown in the legal system and must not in itself violate the principles of the rule of law”.
“It cannot be declared through a law that all the appointments made by the KRS in a particular timeframe are null and void… a wholesale invalidation of all the resolutions of the KRS does not fit into the rule of law concept, as it would among others fail the proportionality test”.
The Council of Europe advisory body also made clear that any automatic demotion of judges that undermined their status would effectively be “tantamount to taking a decision to remove a judge”, which in turn was contrary to the Polish Constitution that forbids such.
Significantly the Venice Commission declared that there were no judgments issued either by the ECJ or the European Court of Human Rights that could automatically invalidate a decision taken by the KRS and Poland’s courts and thereby deem that a judge no longer holds his office.
It has instead said that all decisions taken by the KRS have to be assumed to be binding until they are overturned by due legal process.
Bodnar put an upbeat spin on the Venice Commission’s deliberations, telling the Polish Press Agency: “This opinion is positive, with certain doubts and suggestions for modifications, which we will of course take into account during the legislative process and, to the extent possible, we will improve the legislation.”
He said the body had sought a “middle ground” between a comprehensive approach and the need to assess individual cases.
“This opinion will be helpful to us in terms of conducting further debate and preparing appropriate laws,” he added.
