Details

Autor(en) / Beteiligte

• Mastracci, Matteo

Titel

JUDICIAL INDEPENDENCE: EUROPEAN STANDARDS, ECtHR CRITERIA AND THE RESHUFFLING PLAN OF THE JUDICIARY BODIES IN POLAND

Ist Teil von

• Journal of the Indian Law Institute, 2019-03, Vol.61 (1), p.118-143

Ort / Verlag

Indian Law Institute

Erscheinungsjahr

2019

Quelle

Alma/SFX Local Collection

Beschreibungen/Notizen

• Judicial independence is a cornerstone of the contemporary constitutional systems within the European legal orders, Poland, among many other European States, codified the principle at constitutional level through Article 173 of the Constitution of the Republic of Poland. Nonetheless, the concrete implementation of the theoretical framework remains a bone of contention between the national States and the main international actors. The latter faction, based on the acknowledgement that no single political model could ideally comply with the principle of the separation of powers and secure complete independence of the judiciary has developed impressive number of legal tools to diffuse European trend of interpretation which could be labelled as European standard or European corpus aiming at preserving the judiciary order from outward interferences by the legislative and executive powers. In Poland, after the extensive victory earned by Law and Justice (PIS) in the Parliamentary election of 2015, the executive propelled a series of interlock reforms with the aim of reshuffling the whole judicial asset of the country. In the first place, the way forward was marked by a compound diatribe concerning the Constitutional Tribunal, the essence of the dispute was about the mandate's legitimacy of three sitting judges after the Court's reinterpretation of the K 34/15 ruling that ended up on 2 December by the election of five new judges appointed ex novo by the ruling party. Afterwards, the attention shifted towards the rethinking of the National Council of Judiciary (KRS), a mixed judicial body guardian of the independence of the judiciary, asserting, firstly, the unconstitutionality of its statute and, subsequently, planning a new method of appointment for the judicial members previously elected by the judiciary itself. Ultimately, as a closing step, the spotlight turned in the direction of the Supreme Courts judges where the most spectacular sweep was the provision aimed at lowering the retirement age for the sitting judges on a scheme similar to the proposal made by the Hungarian government in 2011 where raised their voices respectively, the Hungarian Constitutional Court, the European Court of Justice and the European Court of Human Rights, where, and regretfully, the judicial independence standard played a minor role on the courts' reasoning.