Its Response to Poland Shows the EU’s Double Standard on Judicial Reform

By Vincent W.J. van Gerven Oei,
Its Response to Poland Shows the EU’s Double Standard on Judicial Reform

The European Union is apparently very close to triggering a so-called article 7 procedure against Poland, which would eventually revoke Poland’s voting rights in the EU. So far, this seems to be an empty threat, as Hungary’s Prime Minister Viktor Orbán already vowed to veto any such decision of the EU member states.

Nevertheless, the EU’s vehement response against Poland’s judicial reform, which would in principle bring the entire judicial system from the Constitutional Court down to the lower courts under influence of the government and parliament, both of which are controlled by the conservative Law and Justice Party (PiS), comes as something of a surprise, if you look at its policies outside the EU toward potential member states.

The EU’s seemingly principled position in this debate stands in stark contrast with its position toward justice reform in Albania. The core of the judicial reform in Albania is the reassessment of all prosecutors and judges by a number of vetting institutions, which are elected by Parliament, and which base their decisions on information provided by government institutions, including the High Inspectorate of the Declaration and Audit of Assets and Conflict of Interest (ILDKPKI), Ministry of Interior Affairs, and security services.

As Exit explained before, the main concern of the opposition and the judges’ organizations was precisely the potential capture of the entire process by the government. In other words, their worries are exactly the same as those now expressed by the EU toward Poland: the potential capture of the entire judicial system by the government in the hands of a delusional autocrat.

In fact, in its interim opinion from December 2015 on the constitutional amendments that enshrined the vetting into Albanian law, the Venice Commission stated:

100. The Venice Commission believes that a similar drastic remedy [reassessment of the entire judiciary] may be seen as appropriate in the Albanian context. However, it remains an exceptional measure. All subsequent recommendations in the present interim opinion are based on the assumption that the comprehensive vetting of the judiciary and of the prosecution service has wide political and public support within the country, that it is an extraordinary and a strictly temporary measure, and that this measure would not be advised to other countries where the problem of corruption within the judiciary did not reach that magnitude.

Although vetting may still have a “wide political and public support within the country,” we will see how that develops as the vetting actually starts to produce its long-awaited results. The reassessment procedure itself is not “strictly temporary” as it has no fixed time limit and can basically drag on for as long as the vetting institutions or the government would want it to. Also, it is certainly not “extraordinary.” In fact, the idea of “vetting” has been already imported in a wide variety of political contexts, and the Prime Minister himself now seems to intent on mobilizing “the people” to “vet” the administration.

In its interim opinion on the judicial reform package, the Venice Commission explicitly cited several relevant paragraphs from its opinion on the judicial reform in Ukraine, which has also been initiated by the EU, declaring at the end that the “qualification assessment […] should be regarded as wholly exceptional and be made subject to extremely stringent safeguards to protect those judges who are fit to occupy their positions.”

The Venice Commission, moreover, stated that just changing the law is not enough:

16 […] [T]he Venice Commission and the Directorate consider that effectively reforming the judiciary in Ukraine is not only a question of adopting legislative texts, but also depends on the political will and the practical implementation of the provisions to create a truly independent judiciary. This means that the links between the judiciary and political organs that have existed for many years need to be terminated and the patterns of behaviour in their relations and within the judiciary should change. A good law is certainly a good preliminary step in this respect but the political will and effective implementation of the amendments are necessary elements in order to prevent the reform from remaining a mere declaration.

If we look at the “risks and threats” of the judicial reform in Ukraine, these look a lot like those in Albania (and so does the position of the internationals). And if we look at its actual implementation, it seems that all kinds of things are already going wrong. For starters, “someone” may have “intentionally lowered the scores of one group [of judges] and increased those of another one.” Or just read the statement of the Ukrainian President Petro Poroshenko, followed by Josh Cohen’s recent article “Positive Change Is Not Happening in Ukraine’s Courts.” It reads as one gigantic future déjà-vu.

I cannot judge whether there is actually the “political will” to change “patterns of behaviour” in Ukraine, but the chances of such will existing in Albania are zero to none. The entire fact that the Prime Minister himself is setting up a parallel “people’s justice” system as part of his “direct co-governance with the people,” which will be “hell for anyone who is paid by the state and abuses common people,” should be more than enough red flags in and of itself.

It may be true that the judicial system in Albania, plagued as it appears to be by corruption, is in need of a thorough reevaluation. It may also very well be that the EU considers this one of the main priorities in view of opening accession negotiations. But then, if it indeed wishes to force a judicial reform onto the country, flies in “independent experts” to monitor the situation, and then remains silent in the face of the statements by the Prime Minister which are quite possibly worse than those of PiS leader Jarosław Kaczynski, that is a perversity that I find very difficult to accept.

 



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