Stowarzyszenie Wolne Społeczeństwo (SWS, Free Society Association) appeals to the Government of the Netherlands to take the initiative of establishment of a common and uniform European standard of independent judiciary with guaranteed participation of citizens in judicial decisions and with independent civil monitoring of judiciary.
On 9 September 2021 the SWS called the government of the Federal Republic of Germany to respond to the petition for participation of the associations and self-help groups from the member states of the European Union (EU) in matters of child custody in court proceedings in the EU at the request of a parent. The petition resulted from the numerous failures of the realization of the rule of law revealed in Germany and Poland in family proceedings. The SWS hinted that:
(...) the German judiciary became a harmful propaganda example for judiciary organization in Poland despite the consensually acknowledged lack of respect for democracy and for independence from political parties within the German judiciary, and as such an example it constitutes a grave obstacle for establishing a democratic rule of law in Poland and in the European Union; (...)
As expected, on 18 October 2021 the Polish ministry of justice announced that if the Polish judiciary does not fulfil the norm of independence from politicians, then the German judiciary also should not be considered to be independent of politicians.
The Polish ministry equates political control with democratic control. At the same time, they are acting in a breach of constitution in the procedure of nomination of judges in Poland. Articles 4(2) and 187(1)(2) of the Constitution of the Republic of Poland provide for the popular election of fifteen judges for the National Council of the Judiciary, which is the body that chooses the judges appointed by the president of the Republic. Additionally, the pool of candidatures presented to that body might be narrowed to the candidatures previously selected in another popular election.
Judicature in democracy may not escape democratic control of its daily quality. In Poland the postulated National Council of the Judiciary composed of at least fifteen members chosen in popular election could take the role of an independent disciplinary body for judicature.
The political struggle within the EU about power over judiciary may destroy the political and legal foundations of the EU because it is the fact that not only in Poland among the member states of the EU a real independence of judiciary from politics has not been achieved. The argument about equality of the member states will therefore be convincing.
On the other hand, a common and uniform European standard of independent judiciary may create a basis for the revival of the EU with important role of European civil society.
The Government of the Netherlands seems to value democracy and the rule of law in a greater extent than the governments of Germany and Poland. The SWS appreciates the declarations of the will to stop the EU financial support for Poland in consequence of the refusal to respect the rule of law. The firm governmental support for a common and uniform European standard of independent judiciary with guaranteed participation of citizens may be the key to the new EU.