Disciplinary Proceedings as an Instrument for Breaking the Rule of Law in Poland. Disciplinary Proceedings as an Instrument for Breaking the Rule of Law in Poland. [ Ссылка ] #Hungary #Orban #EU #Commissioner #Jourova
The concept of the rule of law is certainly not new. The concept has a strong presence in legal theory,Footnote5 in traditions and branches of political theoryFootnote6 and in sociology.Footnote7 Of course, the rule of law cannot be studied without taking historical and cultural contingencies into account.Footnote8 In Poland there are still strong demands for settling scores from the past. Many of these grievances involve real or alleged wrongs which are condemned today, and rightly so, but which often had legal authorization at the time or transgressed no existing positive laws when they were committed. Among the potential casualties of now applying the law to these past grievances are what are often said to be central elements of the rule of law such as: independent and impartial courts.Footnote9
In what follows we deal with the rule of law as a practical ideal. Needless to say, this maxim is not meant to be taken literally. Rather, the decisions made by legal actors—legislators, judges, and other officials—should be governed by certain ideals and standards.Footnote10 We share an opinion that the rule of law means “law plus standards”. From one point of view, narrowly conceived, the “classical” rule of law is a set of negative safeguards against an abuse of power. Officials are restricted by constitutional constraints, procedural rules, and institutional arrangements. Furthermore, such a conception is clearly supported by specific historical achievements and widely recognized principles of justice.Footnote11 A simple comparison between the elimination of the rule of law in communist times and the acceptance of only basic principles based on a positivist concept is not appropriate. Furthermore, a positivist conceptionFootnote12 is clearly unacceptable. The communist system collapsed over 30 years ago. There are no additional problems than those that existed in the 1990s, while completely new ones also appeared with a specific cultural background.
The rule of law will be operationalized by pointing to various institutional and extra-institutional aspects, taking into account the separation of powers. In recent years a new element has appeared in the discussion on the rule of law, the separation of powersFootnote13 and the role of independent judges. Judicial authority is exercised by courts and tribunals. Courts and tribunals would not be able to adjudicate without judges.Footnote14 An independent court is a court that is structurally, organizationally and functionally separate from other public authorities. Furthermore, a sovereign court is a court in which impartial judges adjudicate .Footnote15 A new paradigm of the court assumes the existence of a court equipped with jurisdictional authority as a guarantor for exercising the right to have access to a court, which is only possible before the court whose independence is guaranteed, irrespective of whether European law is or could be applied in a given case. It is consistent with the construct of the right to access a court constituting not only the right in itself but also a protective measure with respect to other subjective rights.Footnote16 The evolution of the CJEU’s opinions and the said approach adopted in the CJEU’s judgment of 27.02.2018 in the case C – 64/16 Associação Sindical dos Juízes PortuguesesFootnote17 assume the creation of a multi-layered notion of the court. The judgment of the Court delivered in this case was as groundbreaking as it was surprising, even if the outcome itself was predictable.Footnote18 The political objectives of the Court’s decision are clear: the CJEU wanted to clarify that the organization of the national judiciaries is not exclusively a matter for each of the Member States separately, but that Member States are under an obligation, contained in primary EU law and supervised by the Court of Justice, to ensure that their courts and judges are independent ‘in the fields covered by EU law’.Footnote19 Independence is a “constitutional” value and should be verified at the EU and national level.Footnote
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