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Legal chaos in Poland deepens, posing major challenge for EU


WARSAW – Legal chaos has deepened dramatically in Poland, with the government and the country’s high court judges clashing over who administers justice — a rift that some experts say is an assault on the young democracy and could lead to a break from the European Union.

The right-wing populist governing party has tried to take control of Poland's court system ever since it won power in 2015, steadily eroding the courts' independence from politics.

The party took two major steps Thursday toward assuming full sway over the legal system: passing legislation that allows the government to fire judges whose rulings it does not like and expressing open defiance of a Supreme Court resolution that condemned some judges' appointments as illegitimate.

The European Union expressed its deep concerns Friday as Poland's government continues to defy the laws and standards that it agreed to uphold when it joined in 2004.

Some European legal scholars warn that the developments threaten the entire EU legal system. National courts in the 28 EU member countries recognize the decisions of courts in the other nations on everything from European arrest warrants, child custody issues and commercial law.

But as Poland's court system becomes increasingly politicized, there are fears that Polish judges will no longer operate as objective arbitrators and will face pressure to issue rulings to the government's liking.

In a resolution, 60 members of the Supreme Court, which largely has managed to maintain independence from the government, said judges are illegitimate if appointed by a judiciary council that the ruling party has politicized.

The justice minister, Zbigniew Ziobro, said the high court's action was “a gross violation of the law, and its so-called resolution has no legal effects.” It's a sentiment that legal experts don't share.

Several courts canceled some hearings Friday because of uncertainty over whether some judges had the authority to make rulings. Other judges said it's their duty to keep working.

In Warsaw, the Supreme Court had nine hearings canceled because the presiding judge had been appointed in the contested way and she said any ruling handed down could be questioned.

The Supreme Court says the judiciary council is illegitimate because its members are directly appointed by the government, violating judicial independence. The EU's top court, the European Court of Justice, has warned that the new judicial body could have that effect.

Also Thursday, the lower house of Parliament passed legislation allowing politicians to fire judges who rule against the government, even if they adhere to EU law.

Critics call it a “muzzle law,” and it has been condemned by the EU, the United Nations and the Council of Europe, the continent's largest human rights body. Amnesty International has said the law would end the separation of powers in Poland.

Polish constitutional expert Bogna Baczynska said the EU legal framework ensures that citizens in all member states are guaranteed equal rights and a breach by a member country breaks the common foundation.

She believes Poland will see its EU funding reduced because the “EU will not keep sponsoring a member that is destroying its foundations, its roots.”

She said that judges are being put under “terrible, hostile pressure.”

Laurent Pech, a professor of European law at Middlesex University in London, tweeted that “Poland is no longer a democratic regime” and that a "process of de facto exit from EU legal order has begun.”

Pech told reporters in Warsaw last week that doubts about judges' independence also will negatively affect foreign investment in Poland.

“No one will invest in a country where essentially the rulings of the Court of Justice regarding the judicial branch are simply openly ignored,” Pech added.

The legislation goes next to President Andrzej Duda, who is expected to sign it. He argued that the justice system is deeply flawed and needs reform. He also asserted that the EU does not have the right to dictate to Poland how to run its justice system.

"We will not be told, in foreign languages, what kind of system we should have in Poland and how Poland’s affairs should be taken care of,” Duda said.

The government argued early in its tenure that it needed to purge judges who were part of a privileged “caste,” including holdovers from the communist era.

Critics say very few judges are still working who began under communist rule, which ended 30 years ago. Lately, the government has said it seeks to end “anarchy” in the system, which opponents say has been triggered by the government itself.

A retired chief justice of Poland's Constitutional Court, Andrzej Rzeplinski, also thinks the government's interference with the courts and its hostility to European input signals the country is headed for a departure from the EU.

Since the ruling party took power in 2015, “we live in a constantly fueled conflict,” Rzeplinski told the Onet.pl news portal. “The next stage will be to take Poland out of the EU."