When the 28 heads of government across the European Union (EU) meet in Brussels next Friday, Brexit will be high on the agenda. But the EU28 will also have another vexing matter to deal with — one every bit as politically divisive as how to reach a deal with the United Kingdom’s decision to leave the EU in just over a year’s time.
In many ways, the European Commission and its negotiating team, backed by the unified stance of the EU27, has a modestly easy task of reaching a Brexit deal: The difficult task for the Commission and the EU27 is to try and figure out exactly what the government of UK Prime Minister Theresa May wants. If she knew that, the Brexit talks would be a piece of cake.
But there is every chance that as much effort and hot air will be exhausted by another EU27 configuration — everyone except Poland — on what to do with the government in Warsaw and its insistence on interfering with the independence of its judiciary.
Despite a series of warnings from the European Commission, Poland’s President Andrzej Duda signed into law in early December a bill that effectively forces the entire Supreme Court bench into retirement and subjected judicial appointments to the whims of the ruling Prawo i Sprawiedliwosc — the Justice and Law Party — or PiS.
For the EU, an independent judiciary is one of the requirements of membership, along with such niceties as a functioning democratic system, a free press, transparency and a commitment to free movement of labour and of goods and services. The PiS has been in power since 2015 and has made no secret of its intent to rein in a judiciary that it views as too liberal, its rulings too contrary to fundamental Roman Catholic beliefs and the PiS’ right-wing philosophy. More than 90 per cent of Poles are practising Roman Catholics.
The PiS too has adopted the position of similar nationalist movements in central and eastern Europe, namely in Hungary and in the Czech and Slovak republics. They were vocally opposed to the influx of Muslin refugees mostly from Syria and Iraq two years ago, and threw up both physical and legal barriers to the whole concept of free movement.
Ironically, however, it is migrant workers from these nations that have helped ferment anti-European sentiment in Britain leading up to the Brexit referendum, and opposition to “Polish plumbers” was voiced often in the pro-Brexit right-wing newspapers in the UK.
The PiS gladly accepts the economic freedoms the EU brings — but Brussels’ insistence on an independent judiciary is a separate matter altogether.
Following President Duda’s signing into law of the PiS judicial reforms, the EU issued a warning that it was prepared to sanction Poland, and was considering steps to prevent what it considers to be a step towards authoritarianism.
A lot has been written in recent months about Article 50 of the Lisbon Treaty, the clause that Prime Minister May activated on March 29 2017 to serve two years’ notice that the UK intends to leave the EU. But Article 2 of the same treaty is equally if not more significant, setting out the values upon which the EU was founded — and the central and fundamental tenet is the rule of law. Just before the summit in December that allowed the Brexit talks to proceed to the wider issues such as trade and a possible transition period, the EU Commission announced that it had decided to pursue disciplinary proceedings against Poland for threatening independent judicial authority. While there may be a debate about the exact meaning of the “rule of law”, there is a general agreement that it involves a transparent courts system free from governmental or political interference. Given that many Poles have taken to the streets to protest the PiS measures, it’s a set of principles that many behold and cherish in the former Soviet bloc satellite.
There’s another EU treaty that is relevant too — the Treaty of Amsterdam that was formulated in the late 1990s. Article 7 of it allows for four-fifths of the EU membership to suspend any nation’s membership is they deem there to be a serious breach of Article 2 values.
Certainly, when it comes to any vote on suspending Poland or sanctioning it, Hungary Prime Minister Viktor Orban will side with the PiS government, and so too likely the Czech and Slovak republics. That would leave the other 24 lined up against Poland, with the UK possibly lining up with Warsaw if it feels it can make a friend when the crunch times comes for Brexit. You scratch my back is as good a political philosophy as any when you’re desperate for any friends around the EU table.
Still, 23 to five means Warsaw diplomats would have a lot of ground to make up to avoid being sanctioned.
But this all isn’t just theoretical politics.
In a Dublin court on Monday, a High Court judge halted the extradition of a Polish man, Artur Celmer, who is sought in his homeland for drugs-trafficking offences. On the face of it, the extradition application seemed straightforward enough. In 2016, Polish judicial authorities made 243 applications under European Arrest Warrants (EAWs) to Irish authorities, and 264 were made the year before.
There are 122,000 Poles living in Ireland according to the 2016 census, and there were more than 2,400 application for court interpreter services made before Irish courts last year, the Irish Times reports.
But Justice Aileen Donnelly was swayed by arguments that Celmer faced extradition now to an EU state that did not necessarily provide the same oversights and independence as required under Article 2.
Instead of granting the extradition as a matter of course, she instead stayed the case and sought guidance from the European Court of Justice (ECJ) in Luxembourg. Celmer remains in jail for now, but no more extraditions between Ireland and Poland will go ahead until the ECJ rules on the issue — and a hearing in the matter will likely be expedited.
It’s not the first time the High Court in Ireland has accepted an argument that defendants might face an unfair trial or flawed judicial process in another state. During the three decades of political and sectarian strife in Northern Ireland that claimed 3,600 lives and injured another 36,000 more, Irish courts regularly refused to extradite terrorism suspects to Northern Ireland on the grounds that they faced possible torture or trials in juryless courts where impartiality could not be guaranteed.
The Irish court decision has brought fury in Warsaw — but come next week’s summit, the Polish media and the PiS might have a lot more to complain about.
