 Thank you very much for the invitation, I'm very happy to be here and I want to do two things. I want first of all to give a very short introduction to the Venice Commission before this very eminent audience. The Venice Commission does not have a very high profile in Ireland or in the UK. It has more of a profile as you move east in Europe, but I would like to explain its role because it puts the opinion perhaps in context and then I'd like to do a short introduction to the opinions that came from the Venice Commission in relation to Poland and put that slightly in the context of other rule of law issues happening in Europe at the same time. So the Venice Commission, formerly called the European Commission for Democracy True Law, was established in 1990 and it's part of the wave of new institutions which were established after the fall of the Berlin Wall and the further introduction of democracy in Eastern Europe. So it's of the same lineage perhaps as the OSCE and bodies of that period. And the Venice Commission is an independent body associated with the Council of Europe, the funding and the secretariat and so on are organised through the Council of Europe, but it is not an integral agency of the Council of Europe, it is independent of it and it has 61 or possibly 62 members, all the Council of Europe members, many countries in North Africa, South and Central America, Saudi unexpected countries like South Korea and Israel, Palestine and so on are there as well. The most recent country to join was Canada, which was a great addition and the role of the Venice Commission is to provide legal opinions and separately have to provide legal research and reports at the request of member states. So its original aim was to answer queries raised by governments. It also provides legal opinions at the request of some international bodies, predominantly Council of Europe bodies such as the Parliamentary Assembly of the Council of Europe and associated bodies such as the Congress of Local and Region Self-Government. Also on occasion it provides legal opinions at the request of the European Commission, that is rare and it depends on the particular relationship that's happening with the country involved. That happens I think with the consent of the government usually when that happens. The Venice Commission, most of the work happens through Strasbourg where the headquarters is, it is called the Venice Commission because it's plenary meetings happen in Venice and it should be meeting next week but it's not for reasons that are very topical that I don't need to go into and it just to give a sort of a photograph of its work in 2018 which is the last year that I have figures for, it produced 35 separate opinions including six amicus curia briefs predominantly for constitutional courts in various countries. It also occasionally provides amicus curia briefs for the Court of Human Rights in Strasbourg, there have been I think five or six examples of that in recent years. It operates as the Finola and you will remember the President of the Venice Commission is a very learned man called Gianni Bacchizio and he describes the Venice Commission as being a constitutional fire brigade because it can act remarkably quickly to produce legal opinions at short notice. So in this particular case the opinion in relation to Poland, the request from the chairman of the upper house in Poland was just at the end of December, the beginning of January and the opinion was published on I think the 16th of January so there was a lot of intensive work during that period. So the areas of work that the Venice Commission works in is constitutional law, separation of powers, constitutional justice which is subtly different from constitutional law, democratic institutions and electoral law and it has very various allied bodies to deal with elections and it has various subcommissions dealing with particular areas of work. So that is general background to the work and then the involvement in the reforms in Poland, there was the earliest involvement of the Venice Commission in the cycle of reform was the earlier phases of reform involving the constitutional tribunal. There were changes introduced by the current Polish government which undermined the credibility of the constitutional tribunal and there was a lot of dispute about that which was 2014-15 perhaps and I think the result of that was to sort of undermine the role of the constitutional tribunal within the constitution structure of Poland as the arbitrator of major constitutional and possibly rule of law disputes. So the role of the Venice Commission as I said is to focus on a particular request, there is a request focused on a constitution reform or a particular draft law. So after the earlier opinions about the constitution tribunal the Venice Commission had no direct involvement for some years because the matter was moved to a different forum. It came back to the Venice Commission again in 2017 because there were amendments at stage to the law on the Council of Judiciary and also the law on the Supreme Court and there were extremely difficult and controversial laws and the opinion from the Venice Commission that I was involved in at that time took the view and advised that the scheme of amendments were not consistent with rule of law for three separate reasons. The first reason was that the new scheme for the Council of the Judiciary had the effect of politicising the Polish system for appointing judges. The second one was that the amendments gave the Minister for Justice who in Poland is also the chief prosecutor. The amendments gave the Minister too much power in relation to the judiciary and in particular in relation to court presidents who are a very important part of the design of the judicial system in Poland. And thirdly there was a negative view taken in relation to the design of two new chambers within the Supreme Court. The amendments created two new chambers, the disciplinary chamber and the extraordinary remedies I think chamber and these chambers were given significantly extra powers than the other chambers and it effectively created super chambers within the existing Supreme Court undermining the role of the or undermining the constitutional design of the Supreme Court itself. Now the difficulties expressed with the amendments from 2017 I think were proved to be validly subsequently because after those amendments took effect the authorities in Poland particularly the Minister for Justice dismissed a large number of court presidents. I think over 100 court presidents were disciplined or dismissed and that established the fact that the drift was that the executive had further control over the over the running of the judicial system. After that change took place the focus of the international involvement in the reforms in Poland shifted from the Council of Europe bodies such as the Venice Commission and went distinctly to Brussels and Luxembourg and there were various streams of litigation in Luxembourg that you'll be aware of. The first one I think started with the Salomar case from Ireland which focused on the fact that the relationship between courts across Europe was now within across the European Union was based on the concept of mutual recognition at least in relation to criminal matters so that was the first stream of litigation to go to Luxembourg. Finally there were infringement actions brought by the Commission against Luxembourg because of the 2017 changes and thirdly there were further preliminary references from the courts of Poland to Luxembourg in litigation commenced by individual judges within Poland and that last stream of jurisprudence culminated in decisions from last November that one of the two new chambers set up after the 2017 changes was not to be considered to be an independent tribunal for the purpose of providing effective remedies for the purpose of EU law and this issue as I said went to Luxembourg it then quite legitimately went back from Luxembourg to the courts in Poland and when it went back to Poland the courts in Poland decided that they applied the criteria given to them by Luxembourg and decided that yes the disciplinary chamber was not an independent tribunal. This created I think a sort of a real crisis in judicial legitimacy within Poland because you have the possibility for some courts not recognizing the independence of other courts and a clash of legitimacy between these two streams of courts which understandably could not be allowed to continue so it did require a statutory intervention by the authorities. The statutory intervention took the form not in a bill or a draft law from the ministry but rather in I understand a private member's bill which came from some government MPs and was introduced to the lower house in December under what is effectively an accelerated procedure because bills that do not come from the ministry are treated differently from government bills so that bill was passed by the lower house in December and it then went to the upper house and the request to the Venice Commission came from the upper house as I said just at the end of the year so the Venice Commission issued an urgent opinion on the 16th of January and that opinion very briefly came to the view that the proposed amendments which were before the Senate were contrary to the rule of law for six separate reasons. The first reason given is essentially a sort of a process reason because the way the bill was presented through private members meant that the expected opportunities for consultation and discussion and debate did not take place. Secondly the amendments in the bill contained a disproportionate limitation on the freedom of speech of judges. Now I think it's understood in all our systems that judges are constrained in their involvement in political matters and making statements and that is based on either legal provisions or convention or the way that has done may vary but I think it's now recognized across our different systems that judges have an entitlement to comment on matters which are relevant to their areas of work so judges have a right to engage in discussion about judicial reform perhaps not the budget but perhaps not other matters of political discourse but ones which are directly judicial. So the third reason given was that the ban on evaluating whether another court is independent or not is in conflict with EU law and because EU law is part of the rule of law applicable in Poland then it is contrary to the legal system and the constitution system that that parliament had to comply with and also was in conflict with ECHR norms on access to justice. This is a complex issue because it is not unreasonable to imagine provisions whereby a decision on the independence of another court might be dealt with in a particular way. The idea that every court of every jurisdiction and level within a legal system would be able to challenge the foundation of a different court is broader broad so it is possible to imagine restrictions on how that assessment happens but the EU angle I think made it difficult to apply such restrictions in this case because the effect of remedy was a requirement of EU law. Another element of the law which was inconsistent with the rule of law was new disciplinary sanctions were introduced and those disciplinary sanctions were written in a very broad and over general way and were difficult for judges to understand what they were expected to comply with. Next there was a stronger power given to the minister particularly in relation to court presidents even stronger than the powers that already existed and finally a more sort of a more distant issue there was a question in relation to the election of the first president of the Supreme Court and the the electorate was redesigned in a way which meant that if matters fell out in a particular way the electorate for that for the for the first electing that judge would be designed in a way which was more which was less representative of the judicial body. So that was where matters stood in the middle of January and I understand the law did come into effect and I look forward to hearing from the ombudsman about how matters have developed there since then. Thanks very much. Ladies and gentlemen I have written that the whole speech by but my speech is so detailed that I figure out that if I go into details we would be lost basically with everything what I was going to to say. So let me try to use my time in order to explain you some of the most important aspects of the things you observe in in Poland. I would like to say free thank you first of all I would like to thank the International Institute for International and European Affairs for this great invitation second I would like to thank Mr. Ambassador who is here with us the previous Ambassador of Ireland to Poland for his support also to my institution thank you very much for for this and I would like also to thank judges Irish judges who were represented in Warsaw by Judge Macmanaman during the March of 1000 Gones but as I understand you are representing the whole judiciary of Ireland and giving this personal support to to our to our cause. It is really important because I think it is one of those moments when we have a feeling that it is not only our case it is the case for whole Europe and for the whole European Union. As you know well we have this ongoing rule of law crisis which started in 2015 with the basically political subordination of the constitutional court. So as a result of different legislative and practical changes the constitutional court still operates but it became a little bit like the facade institution which is more legitimizing some legislative acts adopted by the ruling majority than just making like a proper judicial review of a legislation and all those changes concerning rule of law affected not only constitutional court but also prosecutor's office, public media, civil service, secret services and judiciary basically was in fact the last guardian defending rights and freedoms in in Poland and this attack on judiciary happened in a moment when it was already obvious to everybody that we do not have any independent judicial review any longer. So if the parliament adopts any legislation you will not be able to verify this legislation by virtue of a of motion to the constitutional court and this attack on the judicial independence was quite let's say complex and you can divide it into different stages and it's not time to explain it in detail but I would like just to give you some general ideas about this. I think that the major issue is what were the reasons presented for the for these changes concerning judiciary. So basically the major reason that has been presented by the government was first of all they need to make a reform of judiciary and in fact if you look into how Polish judiciary works it's quite ineffective especially in big cities so the general public understood this argument yes everybody would agree yes we have to reform judiciary. Second there was a second argument that has been presented is the need to bring more accountability of judges towards sovereign towards voters and in order to do this we need to bring more discipline measures to them to the judiciary but in fact what were the real reasons behind those changes were not like were not those that were presented publicly because those real reasons and I think right now after a couple of years it is not even you know difficult to to identify those reasons were in fact something like a political subordination of judiciary and to make a judiciary very similar to the one as operates in in Hungary. So the judiciary which is not treated as a separate third power third branch of power but as a judiciary which has a kind of a subordinated role to the political actors and the third point I think which is important to mention is how this change happened it happened via a set of different legislative measures that were on surface quite that looked as being complied as being in compliance with with some standards but if you look deeply you could see some kind of a manipulation in those arguments so I will just give you one for example when the reform of the national council of judiciary has been implemented the major arguments that has been presented was we have to make a system as it is in Spain because in Spain it is the parliament which selects the members of the national council of judiciary so we must have the same system as in Spain because it brings more legitimacy to real people and the problem is that our constitution is different than Spanish constitution and that you cannot basically make that kind of a copy paste so making those changes via step by step legislative measures and by using or by abusing comparative argument and by diluting arguments of opponents was more or less like the alchemy that was behind changes that have been implemented and of course there was a European union reaction to this in the early years of those changes European Union started European Commission started rule of law procedure under article seven but at certain point this procedure went nowhere because of the opposition of Hungary second there were there was a reaction started by your judge donnelly in the Selmer case so that to what extent Poland may stay may still be part of the European arrest warrant procedure in a situation when judiciary is subordinated to executive power and we know we know well Selmer judgment issued by the court of justice that it basically didn't it didn't prevent Poland from continuation of of judicial reforms the third reaction were infringement actions started by the commission and the fourth were preliminary questions asked by Polish courts to which the court of justice had to answer it creates a complex bunch of legal proceedings pending at the at the Luxembourg court and some of them have have resulted in important important judgments but the most important judgment out of those ones the most recent one was the judgment of 19 November 2019 which created a ground for let's say evaluation how the National Council of Judiciary and how disciplinary chamber of the Supreme Court operates that's not mine and this judgment in a proper EU country should be just implemented so the state should sit down the government should sit down and consider how this judgment should be implemented how we should make a legislative reform of the National Council of Judiciary and those special bodies of the of the Supreme Court special chambers of the Supreme Court but interestingly government didn't do it at all quite otherwise the government has proposed the mazal law which was going to let's say keep the status quo and also to let's say create some guarantees for the election of the new president of the Supreme Court one of the ideas also behind the mazal law was to silence any judges that are protesting so right now under this mazal law as Sir Barret presented we have number of provisions under which judges who are voicing out their concern but also who are using the union law acting in their independent capacity they could be targeted they could be subject of disciplinary sanctions and what we also observe is that there are there is a certain number of judges which is having this actual disciplinary cases and those cases concern either their statements made publicly or sometimes some of those sanctions concern their adjudication so so the content of decisions they are doing especially those ones which are somehow challenging the status quo of existing existing judges so as it was said the mazal law despite international concern despite opinion of the Venice commission despite letters by the European Union has been signed by Mr President Andrzej Duda so we are right now in the stage when the mazal law is binding law but we are also in the stage when there are other proceedings either pending or we are waiting maybe for the start of some proceedings so let me let me summarize what is what is happening now so right now we wait for the hearing of the Court of Justice of the European Union whether the interim measure should be used with respect to the operation of the disciplinary chamber of the Supreme Court disciplinary chamber which is not recognized as a fully independent court but rather as an institution which is serving the governmental interests the hearing will take place on 9th March second we wait whether the commission will start another set of proceedings another infringement action concerning this mazal law the commission has not notified its intention to start these proceedings but it but days go weeks go and we do not we do not see this action yet by the by the commission but was also what happened is that one of the judges who is quite a brave one the judge who decided to kind of individually individually apply the judgment of the Court of Justice of 19th November and who decided to seek for the verification of the status of the National Council of Judiciary has been recently suspended as a judge by the decision of the disciplinary chamber of the Supreme Court and I think it is the one of the very first if not the first case in the modern history of the European Union when the judge is suspended for in fact application of the EU of the EU law also what happened recently in fact on Thursday is that Norway Norwegian Court Administration has decided to suspend the cooperation with the Polish Ministry of Justice and basically decided not to give any additional funds as of now to the Ministry of Justice for the let's say bringing better efficiency of the Polish judiciary so they said as long as you do not have a rule of law situation will not participate in the European Economic Agreement cooperation in this regard also interestingly in meantime the government opened the pressure by civil society and in enforcement of one of the judgments has finally published so-called lists of support to the National Council of Judiciary and basically those lists of support show that there was a lot of pressure by the Ministry of Justice to put proper candidates to the National Council of Judiciary and quite interestingly there is even a proof that one of the judges who has been appointed member of the National Council of Judiciary didn't have a sufficient support when he was appointed so in theory it would mean that National Council of Judiciary is working illegally because the whole procedure was made in a in a way contrary to law because one of the candidates has been elected without proper support but the problem is that there is nobody to to to find it there is one there are institutions that may find it which are courts but if courts start to challenge the National Council of Judiciary then they have disciplinary cases on their back the most recent information is the start of the criminal action concerning one of the most important judges in Poland Judge Tuleja who is the member who is one of those symbolic judges protesting against those reforms but interestingly the case the criminal case which started with the request to lift his immunity and the decision on lifting the immunity is going to be made by the disciplinary chamber of the Supreme Court this case has started in the in the context of one of the decisions he has made a couple of years ago a decision which is highly which which concerned the the basic let's say interests of the of the ruling party we also wait now right now for the date of 30th April this year which is the end of the term of the first president of the Supreme Court and sometimes if you listen to politicians they don't even they don't even hide that their intention is to basically make this process of selection of the new president of the Supreme Court in a way as to guarantee that the new first president new chief justice is a person who is more or less kind of loyal to the ruling party although these are not politicians who are making the selection these are the judges for the Supreme Court who are selecting five candidates and it is up to the president to select the president out of those five candidates but it seems to me that there is like a whole whole pressure that among those five candidates there is one who could be kind of electable by the by mr president I think it is important as of now to to give like a very strong message what we could do what how we can think about this whole situation in my opinion the the first point is to understand that we are having like the growing legal schism in Poland you have judges who are behaving in accordance with a constitution but you are also judges who are let's say accepting all those new changes and it already transfers into different methods of adjudication of of cases so it is sometimes quite important issue you know whether certain judge should be excluded or not whether this judge has been appointed by the previous national council of judiciary or the new council of judiciary how do you interpret the consequence of the EU law in this regard these are basically questions which are asked by every judge and every lawyer in a country right now and and there is no clear solution as long as we'll not go this or the other way this I mean democratic way or the other way which could be interpreted as rather being far away from democratic standards second I think it should be important that this rule of law issue in Poland should be central to the european union discourse it is not just polish problem it is not the situation that you may say oh Poland is far away we can ignore Poland we can ignore Hungary because it would mean destruction of the EU legal system because it would mean that you will not be able to cooperate within the mutual recognition system you will not have a mutual trust to judicial systems in adjudication of cases you will have to consider whether you can recognize judgment whether you can enjoy benefits of the european arrest warrant system what to do with different kind of family cases with transborder investments a lot of different problems that are based on the mutual recognition if you have one element of the system which is sick you cannot rely because the trust is broken so I think that it should be central to the european union to understand that it is the only the european union which may help to stop this situation to happen and I think what is also missing is the as a strategy is the cooperation with other institutions sometimes I have a feeling that there is a different discourse at the EU level at different international institutions like for example Greco which is the corruption which is the the body evaluating rule of law and corruption issues has recently sent a letter to the ministry of justice there will be a hearing of Greco on Poland in the middle of march but it doesn't seem to me that there is like a lot of cooperation and synergy between different international institutions and the third point I think it is still important to show solidarity to Polish judges it is not only the march of 1000 gons it is like the continuous interest in what is going on because they are risking a lot they are risking expulsion from the profession they are risking criminal charges and and it seems to me that despite those legislative measures that are really harmful to them they are really trying as much as they can to to resist because they they understand that it is not about them it is about future of Poland and future of polish democracy so I would like to encourage you to show even more solidarity to polish judges thank you very much