From the President. By July Your Excellency,

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1 From the President Hon. Andrzej Duda President of the Republic of Poland Chancellery of the President of the Republic of Poland ul. Wiejska Warszawa By July 2017 Your Excellency, Adopted Legislation - Threats Against the Independence of the Judiciary The Law Society is the professional body representing more than 180,000 solicitors in England and Wales. Its concerns include upholding the independence of the legal profession, the rule of law and human rights throughout the world. The Law Society is alarmed about the recent adoption of legislation in Poland that threatens the independence of the judiciary and undermines the rule of law and the separation of powers. It regards the adoption by the legislative authorities in Poland of certain amendments to the Act on the National Council of the Judiciary, as well as the Law on Common Courts Organisation, as a worrying development which will undermine fundamental principles concerning the separation of power between the executive, legislative, and the judiciary. We are seriously concerned that these changes will have a detrimental impact on the operation of the rule of law in Poland. We understand that the Act on the National Council of the Judiciary provides inter alia for the expiry of the term of office of a significant number of current members of the National Council of the Judiciary. Such members are now being appointed by other judges, but would in the future be appointed by the Sejm (the lower house of the Polish Parliament). The Law Society understands that the amendments to the Law on Common Courts Organisation change procedures regarding the appointment and possibility to recall Presidents of Courts during their term of office and attribute authority to take some of these measures to the Minister of Justice. Furthermore, we have been informed that a new Act on the Supreme Court was also adopted by the Sejm. The draft Act apparently provides for the retirement of all judges of the Supreme Court upon entry into force of the Act, with the exception of judges designated by the Minister of Justice. The Law Society considers these developments to be of great concern, especially in light of a previous legislative development, the new Act on the Constitutional Tribunal of 22 July The Venice Commission of the Council of Europe published an Opinion (see below), stating that various provisions of that Act would "undermine its independence [of the Constitutional Court] by exercising excessive legislative and executive control over its functioning". Moreover, in their report of 9 May 2017 on "The functioning of democratic institutions in Poland", the rapporteurs of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) of the Parliamentary Assembly of the Council of Europe described the legislative developments in Poland. They stated that some of these legislative

2 developments were "in contradiction with the country s rule of law obligations" and "undermine[s] the principle of legal certainty in the country". The OSCE/ODIHR Office for Democratic Institutions and Human Rights also published a report on 5 May "Final Opinion on Draft Amendments to the Act on the National Council of the Judiciary and Certain other Acts of Poland" - in which it provided recommendations for amendments to the draft legislation and stated that certain draft articles would violate rights established in the European Convention on Human Rights. It seems apparent that the adopted amendments to the Act on the National Council of the Judiciary and the Law on Common Courts Organisation, as well as the new Act on the Supreme Court would similarly lead to possible interference by the legislative and executive powers into the functioning of the judiciary. Moreover, the adoption of a series of Acts that all negatively affect the independence of the judiciary, in its institutional structure and possibly its decision-making, suggests a systematic policy of the Polish Government to restrict such independence. In this way, Poland gradually alienates itself from the community of democratic nations. Not only is this a worrying development for members of the judiciary and of the legal profession more widely, but for all Polish citizens who rely on access to justice and independent courts and tribunals. The Law Society very much welcomes your decision not to sign the Act on the National Council of the Judiciary and the Act on the Supreme Court. However, we understand that you have now signed the Law on Common Courts Organisation. We trust that Your Excellency fully appreciates the regressive nature of that Law and the other legislative developments referred to above, and their negative effect on the country as a whole, as well as its international standing. We are aware that the European Commission has today published a Rule of Law Recommendation which confirms the Commission s opinion that these reforms amplify the systematic threat to the rule of law in Poland. The Commission has committed itself to trigger Article 7(1) of the Treaty of the European Union if any measure is taken to dismiss or force the retirement of Supreme Court judges. This could lead to the suspension of Poland s voting rights within the EU. Poland has adopted a number of international standards regarding the independence of the judiciary which are binding on Poland as international obligations. Other standards, whilst not binding, are indicative of the provisions which are necessary in any democratic country to ensure that the rule of law and the separation of powers are respected. I annex to this letter a brief overview of these obligations and standards together with some criticisms already made by the Venice Commission and its President concerning previous amendments to the governing rules of the Constitutional Court. In light of these international standards and binding obligations on the Polish state, the Law Society respectfully urges Your Excellency and the relevant authorities, as applicable: 1. to exercise the President's veto right not to sign the Law on Common Courts Organisation and take all measures necessary to prevent its entry into force; 2. to take all necessary measures to reverse any adopted amendments that have already entered into force and that would negatively affect the independence of the judiciary and the rule of law; 3. to ensure that any revision of the amendments and the relevant Acts are in line with the international obligations and standards set out in the Annex to this letter; and 4. to take no further actions, of whatever nature, that would undermine directly or indirectly the independence of the judiciary and the rule of law in Poland.

3 The Law Society will continue to monitor the situation and support the independence of the legal profession and its members in Poland. Yours sincerely, Joe Egan President Direct Line: +44 (0) Enc cc. Mr. Frans Timmermans Vice-President European Commission Rue de la Loi / Wetstraat 200, 1049 Brussels, Belgium frans-timmermans-contact@ec.europa.eu Mr. Yves Cruchten Parti Ouvrier Socialiste Luxembourgeois Chambre des Députés, 23, rue du Marché-aux-Herbes LU Luxembourg ycruchten@chd.lu Mr. Thierry Mariani Les Républicains Assemblée nationale, Palais Bourbon FR Paris cedex 07 SP, France tmariani@assemblee-nationale.fr OSCE Office for Democratic Institutions and Human Rights Ulica Miodowa 10 PL Warsaw Fax Mr. Arthur Graham OSCE Rule of Law and Human Rights Department Spanskih boraca 1, New Belgrade, Serbia arthur.graham@osce.org Ms. Tina Gewis OSCE Rule of Law Unit, Ul. Miodowa 10, Warsaw, Poland tina.gewis@odihr.pl Mr. Steven Fisher Foreign & Commonwealth Office, Kind Charles Street, London SW1A 2AH United Kingdom Steven.Fisher@fco.gov.uk

4 Annex The following are international standards regarding the independence of the judiciary that are applicable to Poland: International Covenant on Civil and Political Rights, ratified by Poland on 18 March 1977 Article 14.1: "All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law " United Nations Basic Principles on the Independence of the Judiciary "1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. 2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. 10. Any method of judicial selection shall safeguard against judicial appointments for improper motives. 18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. 20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings". European Convention on Human Rights, ratified by Poland on 19 January 1993 Article 6.1: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". Council of Europe, Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency, and Role of Judges "Principle I - General principles on the independence of judges 1. All necessary measures should be taken to respect, protect and promote the independence of judges 2.b. The executive and legislative powers should ensure that judges are independent and that steps are not taken which could endanger the independence of judges.

5 c. All decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of the government and the administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules (emphasis added). However, where the constitutional or legal provisions and traditions allow judges to be appointed by the government, there should be guarantees to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions will not be influenced by any reasons other than those related to the objective criteria mentioned above (emphasis added). These guarantees could be, for example, one or more of the following: i. a special independent and competent body to give the government advice which it follows in practice; or ii. the right for an individual to appeal against a decision to an independent authority; or iii. the authority which makes the decision safeguards against undue or improper influences. d. In the decision-making process, judges should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such manner. 3. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office. Principle V - Judicial responsibilities 3. Judges should in particular have the following responsibilities: a. to act independently in all cases and free from any outside influence; Principle VI - Failure to carry out responsibilities and disciplinary offences 2. Appointed judges may not be permanently removed from office without valid reasons until mandatory retirement Such reasons, which should be defined in precise terms by the law, could apply in countries where the judge is elected for a certain period, or may relate to incapacity to perform judicial functions, commission of criminal offences or serious infringements of disciplinary rules. 3. Where measures under paragraphs 1 and 2 of this article need to be taken, states should consider setting up, by law, a special competent body which has as its task to apply any disciplinary sanctions and measures, where they are not dealt with by a court, and whose decisions shall be controlled by a superior judicial organ, or which is a superior judicial organ itself. The law should provide for appropriate procedures to ensure that judges in question are given at least all the due process requirements of the Convention, for instance that the case should be heard within a reasonable time and that they should have a right to answer any charges."

6 Council of Europe, European Commission for Democracy Through Law (Venice Commission), Opinion 860/2016, 14 October 2016, Poland - Opinion on the Act on the Constitutional Tribunal "10. The Rule of law implies several fundamental principles. Some of them are particularly relevant in the context of the present opinion. First and foremost, legislation and actions of the executive must conform to the Constitution. Public authorities must operate with a legal basis, and must respect both procedural and substantive law, as interpreted by the courts. Their decisions must be duly motivated. Their action, including their exercise of law-making power, should be effectively reviewable for its constitutionality and legality by an independent and impartial judiciary. 'Independent' means free from external pressure and not subject to political influence or manipulation, in particular by the executive branch, including as concerns appointments and promotions, which must not be based on political or personal considerations. Judicial activities may not be supervised by the executive or other public bodies. 12. These principles are also reflected in the Polish Constitution. Its Article 2 provides that 'The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.' Its Article 8.1 provides that 'The Constitution shall be the supreme law of the Republic of Poland'. Article 10 enshrines the principle of the separation of powers and its paragraph 2 explicitly provides ' the judicial power shall be vested in courts and tribunals' This opinion examines whether the new Act on the Constitutional Tribunal of 22 July 2016 follows the Commission s Opinion CDL-AD(2016)001, adopted on 11 March The core of that Opinion was the issue whether the legislation on the Tribunal is detrimental to the proper functioning of the Constitutional Tribunal, which is essential for the separation of powers in a democratic State, and whether its provisions sufficiently guarantee the independence of the Tribunal, consistent with the rule of law numerous other provisions of the adopted Act would considerably delay and obstruct the work of the Tribunal and make its work ineffective, as well as undermine its independence by exercising excessive legislative and executive control over its functioning Individually and cumulatively, these shortcomings show that instead of unblocking the precarious situation of the Constitutional Tribunal, the Parliament and Government continue to challenge the Tribunal s position as the final arbiter of constitutional issues and attribute this authority to themselves". Council of Europe, President of the Venice Commission, 16 January 2017 "I am worried about the worsening situation within the Constitutional Tribunal of Poland. Following the attempts to influence the work of the Tribunal by means of legislative amendments, which were criticised by the Venice Commission, practical steps are now taken with the apparent aim to ensure that the Tribunal acts in accordance with the will of the current political majority: The new President of the Tribunal was elected on the basis of a questionable procedure; The new President delegated her powers to another judge who was elected on a legal basis that had been found unconstitutional by the Tribunal; The Vice-President of the Tribunal was sent on a vacation he had not asked for; The election of three sitting judges is challenged seven years after the election.

7 Hitherto the Constitutional Tribunal played a crucial role to ensure respect for human rights, the rule of law and democratic principles in Poland. It is alarming that it is systematically made impossible for the Tribunal to carry out this role assigned to it by the Polish Constitution"