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On Thursday, Advocate General Michal Bobek has issued an opinion in the seven cases pending before the Regional Court of Warsaw regarding the legal provisions which allow the Polish Minister of Justice to second judges to higher courts and dismiss them at will.

According to Mr Bobek, the provisions are incompatible with the EU Treaty as they “may infringe the requirement of independence of the national judiciary”.

Following the contested reform of the Polish justice system consequently pushed through since 2015 by the ruling right-wing coalition, the Minister of Justice (who at the same time serves as the Prosecutor General) was given a number of additional, albeit controversial, competencies.

Among other things, the Minister has the power to appoint and dismiss Presidents and Deputy Presidents of courts, or single-handedly decide to delegate judges from one court to another and dismiss them at will.  Moreover, he is not required to justify his arbitrary decisions.

“EU law precludes the Polish practice of secondment of judges to higher courts that may be terminated at any moment at the discretion of the Minister of Justice, who is simultaneously the General Prosecutor” – reads the Advocate General’s statement.

His opinion follows a request for the CJEU’s preliminary ruling and legal guidance issued by the Regional Court of Warsaw.

Anna Bator-Ciesielska, the judge presiding over various adjudicating panels in the seven cases pending before the Warsaw court had issued the preliminary questions back in 2019. In all the panels she was accompanied by judges delegated by the Minister of Justice Zbigniew Ziobro from lower-level courts. Appointing judges to sit in such panels in order to then decide cases initiated by the prosecution (also controlled by the Minister of Justice) is the ruling camp’s common practice.

“A judge is single-handedly delegated to the court at the sole discretion of the Justice Minister. The criteria guiding the secondment decisions are unknown, and the law does not provide for judicial review of such decisions. The minister himself may remove a judge from his delegation at any time” – Ms Bator-Ciesielska wrote to the CJEU, asking the EU court to explain how the practice relates to the EU requirement of an independent judiciary.

-The ministry of justice can "reward" judges with secondments. On the other hand, it can also force them to “obey” its will by threatening to remove them from their delegations - the judge added.

“The national rules at issue do not offer safeguards sufficient to inspire in the individuals, especially those subject to criminal proceedings, reasonable confidence that the judges sitting on the panel are not subject to external pressure and political influence, and have no vested interest in the outcome of the case” – concludes the Advocate General.

The opinion of the Advocate General is usually followed by and consistent with the rulings issued by the CJEU.

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