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Poland and Hungary Defy Europe's Liberal Script

by Judy Dempsey

№ 19/2020 from Nov 20, 2020

Judy Dempsey

 

The European Union must defend a set of values anchored on the rule of law and an independent judiciary. If not, it's credibility will be in shatters. And so will Europe's adherence to the liberal script.

Poland and Hungary Defy Europe's Liberal Script

Poland and Hungary Defy Europe's Liberal Script
Image Credit: Twitter

During a virtual summit of European leaders on November 19,  Poland and Hungary made it clear it would block support for the bloc's seven-year budget and a recovery package that in total amounts to €1.8 trillion.

 

The total EU package is crucial for getting European countries back on their feet when the pandemic has run its course.  And just as important for defending the bloc's values, the disbursal of the funds is linked to holding the rule of law.

 

Jarosław Kaczyński, leader of Poland's governing Law and Justice Party (PiS) and Prime Minister Viktor Orbán leader of Hungary's governing Fidesz, hate the idea of this conditionality. Both nationalist/populist leaders are determined to continue their policy of accumulating powers at the expense of the rule of law.

 

For several years, Orbán has used the funds in ways that have created a system of cronyism in addition to restricting non-governmental organizations, the independence of the media and placing Fidesz supporters into key academic positions.


In Poland, cronyism has not yet taken root to the same extent. Instead, PiS has been hammering away at the integrity and independence of the judiciary. For PiS, judges get in the way of protecting the constitution and preventing the government from pushing through legislation suited to their own ideology and agenda.

 

Judges have been intimidated or replaced. The Supreme Court's Disciplinary Chamber is now taking revenge on judges that are doing everything possible to defend the rule of law.

 

One such judge is Igor Tuleya.

 

On the day EU leaders virtually met on November 19, Tuleya faced the prospect of a jail sentence all because he has been defending the independence of his profession.

 

Tuleya, who is a Warsaw district court judge, has been under immense pressure from the government since 2017. Then, because he believed in transparency, he allowed the media access to a court ruling that was assessing the legality of a parliamentary vote on the budget called without the opposition.

 

PiS, determined to weaken if not destroy the independence of the courts used the Supreme Court's Disciplinary Chamber to silence this critic of the government's policies and then use criminal proceedings against him. For that to happen it would mean lifting Tuleya's immunity.

 

Last July the Disciplinary Chamber upheld his immunity. The prosecution appealed. The Chamber met on November 19. The pro-government judges lifted his immunity. Tuleya could now face a three-year sentence.

 

This is despite the fact that the Court of Justice of the European Union (CJEU) on November 19, 2019 ruled that the Disciplinary Court could not be considered independent "where the objective circumstances in which that court was formed…made lead to that court not being seen to be independent or impartial with the consequence of prejudicing the rust which justice in a democratic society must inspire in subject of the law." PiS rejected the ruling.

The Association of European Administrative Judges tweeted: "the Disciplinary Chamber of #Polish Supreme Court has decided to remove immunity of Judge #Tuleya. The specific context of this proceeding shows that this is a new approach to silence #Polish judges and is a move to have "freezing effect" on all #Polish judges."

 

This was Tuleya's  reaction to the court's.  "I can appeal to Europe…you allowed the rule of law to be destroyed in Poland," he told Reuters.

 

The ball is now in the EU's court.

 

Kaczyński and Orbán claim that by linking adherence to the rule of law with disbursement of the recovery package is discriminatory. Orbán, as ever, is using the conspiracy theory that the philanthropist and financier, Hungarian-born George Soros is leading the campaign to rein in Warsaw and Budapest. The EU and the European Parliament should not blink.

 

If Kaczyński and Orbán do decide to veto the package, EU member states can find creative ways around their vetos.

The EU, for example could possibly resort to "enhanced cooperation" among member states that support the financial package. Such enhanced cooperation, at least in security and defense, is already enshrined in the Lisbon Treaty.

 

The EU can also resort to an emergency budget. In short, with political will, the EU can finally take a stand over an issue that is fundamental to the bloc's integrity and credibility.

 

To bow to blackmail from Poland and Hungary would give other countries, such as Bulgaria, Romania and Slovenia, a green light to run rough-shod over the rule of law. Were the EU to go down that path, it would be walking away from one of the fundamental aspects of the liberal script.

 

The author is Nonresident Senior Fellow, Carnegie Europe
and Editor in chief of Strategic Europe