Polish and Spanish justices: an impossible comparison

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The Slavic country has been eroding the division of powers for years, which has earned it several EU condemnations. They are reforms that affect all the organs of justice, far from the plan of the Government of Sánchez

Since the Executive of PSOE and United We can present the bill for the reform of the Organic Law of the Judicial Power – which allows the renewal of the 12 judges of the CGPJ by the fast track, that is, with the absolute majority of Congress giving a slam like this to the three-fifths consensus that was needed so far -, an intense debate has been generated about to what extent this proposal is similar to the different judicial reforms undertaken by the Polish Government. Warsaw has been disrupting its judicial system for years to legitimize the laws with which it is shaping the country, following the example of neighboring Hungary in its authoritarian drift. Both countries are increasingly moving away from the EU. European justice has condemned some of the judicial reforms of the Polish Executive in an attempt to stop the democratic degradation of the sixth economy of the EU.

“The thing about Spain is a specific modification. The division of powers is guaranteed with the proper functioning of the Constitutional Court and other judicial bodies. The Polish thing is a continuous assault on the independence of the judges, ”Adam Krzywon, professor of constitutional law at the University of Warsaw, assures by telephone. “I believe that the reform of the General Council of the Judiciary (CGPJ) is a bad decision, but it cannot be compared with the complete dismantling that the Polish justice has suffered and that no longer guarantees the division of powers.” The reforms that Poland has carried out in recent years not only affect the governing body of judges, but also the Constitutional Court, the disciplinary regime of magistrates and their retirement age.

The proposal of the Government of Pedro Sánchez, which has also received a reprimand from Brussels – and which according to the Community Executive may endanger judicial independence – has been the perfect excuse for the far-right Polish party Law and Justice (PiS), who has governed since 2015, put his long list of judicial reforms in the same bag with the new specific change in the Spanish justice system. And incidentally, he asks the EU to treat Spain the same as Poland.

Let me remind you that the Polish National Council of the Judiciary [el equivalente al Consejo General del Poder Judicial español] it is the main source of attacks against Poland. […] The European Commission and Germany create mechanisms to force obedience while the current Spanish model does not bother them at all, ”wrote the Secretary of State of the Ministry of Justice in Warsaw, Sebastian Kalet, on Twitter on Thursday.

The change proposed by the new reform of the PSOE and United We Can Government for the renewal of 12 of the 20 judges of the CGPJ, pending for almost two years, is that the approval of three fifths of Congress and the Senate is not needed. It is enough to have an absolute majority in a second round. This would end with the great consensus between different parties that until now were necessary to appoint the magistrates. It is the same that happens in Poland with its National Council of the Judiciary. In the Slavic country, the 15 magistrates who are part of the judicial body are elected by an absolute majority in the Parliament (Sejm) in the second round of voting. “This is the similarity in both countries. That with these reforms the Parliament finally dominates the judiciary ”, explains the Polish jurist Adam Krzywon.

Before the ultra-conservative Law and Justice (PiS) party came to power, it was the Polish judges themselves who appointed the 15 magistrates of the National Judicial Council. But in 2017, the PiS Government, invoking the principle of popular sovereignty, and as part of its plan to dismantle judicial independence, changed the rule to be able to control this highest body of the judiciary. Two years earlier, he also renewed five of the 15 members of the Constitutional Court and raised to a two-thirds majority the support that the Constitutional rulings should have. In this way it was ensured that it could legislate according to its ideals and that its norms were not so easily declared unconstitutional. “The Constitutional Court has remained like a doll ruled by politicians,” criticizes Krywon.

In 2018, the Executive approved a law to reduce the retirement age of Supreme Court judges (from 70 to 65 years) with the aim of appointing magistrates more related to the Government. This rule was finally rejected by the European Court of Justice. The highest judicial instance of the EU also suspended in April this year in a precautionary manner the rule to change the disciplinary regime of judges. “Another law that has served as a repressive and sanctioning instrument for judges, violating and questioning their independence when the sentences were not favorable to the Government”, explains Jakub Urbanik, professor of Roman Law at the University of Warsaw.

This gradual erosion of justice in Poland, which has followed the example of Orbán’s authoritarian Hungary, has set a precedent within the EU. “The Luxembourg Court is laying down jurisprudence on the erosion of the rule of law in an EU member country. This was something unthinkable a few years ago, but it serves as a warning to other States that dare to alter the division of powers ”, Adam Krzywon ditch.

According to the magistrate Joaquim Bosch, of the organization Judges for Democracy, the judicial reform of the Spanish Government “is far” from the situation that occurs in these countries. “In Spain we have not reached those levels, but the slap on the wrist from Brussels to Sánchez’s proposal and the previous blockade of the PP for the renewal of the CGPJ is notorious,” he says. The Council of Europe has been making recommendations to Spain for years regarding its judicial system, which tends to become increasingly politicized.

Spain is one of the few countries in the EU where the appointment of the 12 judges of the CGPJ remains in the hands of the Courts, without any direct participation of the judges – although the judicial associations send the Courts a list from which the elected ones come . In the first years of the transition, the magistrates themselves were the ones who elected their members in the CGPJ, but this changed with a 1985 law approved by the socialist government of Felipe González in order to renew some judges who were proceeding of the Franco dictatorship. “Since then, the system for the appointment of magistrates has been distorted”, ditch Bosch.

The Popular Party, which has been blocking the renewal of the General Council of the Judiciary in Spain for two years, is now attacking the Executive of Pedro Sánchez, calling the government’s judicial reform a “legal outrage”. Instead, in January this year, the PP voted against a European Parliament resolution to demand that Poland respect the independence of its judges by distancing itself even from its own group, the European People’s Party.

But it doesn’t stop there. On Thursday, Pablo Casado assured that with this measure Sánchez is putting at risk the European reconstruction fund for the pandemic that must be approved in Brussels. A squeaky claim, as it is not yet known how the EU will link the funds to compliance with the rule of law.

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