OPINION ON THE DRAFT ACTS AMENDING THE NATIONAL COUNCIL OF THE JUDICIARY, THE SUPREME COURT AND THE ORGANISATION OF ORDINARY COURTS PROPOSED BY THE PRESIDENT OF POLAND

Venice Commission Opinion By Richard Clayton QC

Introduction

By letter of 26 October 2017, the President of the Parliamentary Assembly of the Council of Europe (the PACE), following Resolution 2188 (2017),1 requested the Venice Commission to prepare an opinion on the compatibility with the Council of Europe’s standards on the rule of law of the two Draft Acts recently submitted to the Sejm by the President of the Republic, and amending the Act on the National Council of the Judiciary and the Act on the Supreme Court (CDL-REF(2017)053 and CDL-REF(2017)052 accordingly), as well as of the Act of 12 July 2017 on the Organisation of Ordinary Courts (hereinafter – the Act on Ordinary Courts, CDL-REF(2017)046). The President of the PACE requested the Venice Commission to prepare this opinion “at its earliest opportunity”.

Mr Barrett, Ms Bazy Malaurie, Mr Clayton, Mr Dimitrov and Mr Grabenwarter were invited to act as rapporteurs for this opinion.

In a letter of 16 October 2017 the Venice Commission proposed to the Polish authorities a date for a visit of the rapporteurs to Warsaw (16-17 November 2017). In reply, the Polish authorities confirmed their willingness to cooperate with the Venice Commission, but suggested to postpone the visit and the adoption of the opinion until after the December Plenary session. In the light of the urgency of the request, and of the possible imminent examination by Parliament of the two Draft Acts, such postponement was not possible. The Venice Commission regrets that it did not have the benefit of direct discussions with the Polish authorities, politicians, judges, NGOs and other stakeholders.

The present opinion was prepared on the basis of contributions by the rapporteurs and on the basis of the translation of the Act on Ordinary Courts (provided by the Polish authorities) and of the two Draft Acts (unofficial translations). In addition, the Venice Commission had at its disposal an unofficial translation of two explanatory Memorandums prepared by the administration of the President of Poland in support of the two Draft Acts (CDL-REF(2017)053add1 and CDL-REF(2017)052add1). Inaccuracies may occur in this opinion as a result of incorrect translations. Finally, on 5 and 7 December 2017 the Polish authorities submitted written comments on the draft opinion.

The present opinion was discussed at the Sub-Commission on the Judiciary on 7 December 2017 and adopted by the Venice Commission at its 113th Plenary Session (Venice, 8-9 December 2017).

A copy of the full opinion is here.  

11 December 2017