Central Europe and Spain show the EU’s double standards in enforcing ‘democratic values’

Central Europe and Spain show the EU’s double standards in enforcing ‘democratic values’

On 20th December, the European Commission, for the first time ever, activated Article 7 of the Treaty on European Union citing “a clear risk of a serious breach of the rule of law in Poland”. The charge is that the Polish Government’s recent measures to reform the judiciary system could jeopardise judicial independence, and thus violate the EU’s common values as defined in Article 2.

Talking to the Telegraph, Guy Verhofstadt, head of the European Parliament’s Brexit working group, invited Prime Minister May to raise the issue on her visit to Poland as this is “an important first test of the UK’s pledge to defend European liberal democratic values”.

I do not support any particular Central European government. I am not particularly familiar with the Polish judicial system. I believe, however, that it is important to examine the meaning of “democratic values” in the context of the often tense relationship between Central Europe and Brussels.

The EU’s grievance against Poland has been given ample coverage but, characteristically, little attention has been paid to what Poland had to say. The Polish Prime Minister, Mateusz Morawieczki, wrote:

“No democratic nation can long accept having any branch of government independent of checks, balances, and public accountability. That is the judiciary’s status in today’s Poland. And this very peculiar flaw of governance, its origins, and its consequences have been rarely discussed or understood in Europe and America… In the 1989 Roundtable Talks between Poland’s Communists and the democratic opposition, then-president General Wojciech Jaruzelski – the man who ran Poland’s martial law government for the Soviets – was allowed to nominate an entirely new bench of Communist-era judges to staff the post-communist courts. These judges dominated our judiciary for the next quarter century. Some remain in place.

To this day, an elite council of 25, dominated by 15 judges on the appellate level or above, nominates all judges including their own successors. No trial judge or elected official participates. The president may accept or reject the nominees. The system lends itself to nepotism and corruption.”

In Central Europe, Mr. Morawieczki’s words ring uncomfortably true.

The end of nasty dictatorships such as apartheid in South Africa or Nazi rule in Europe is usually followed by some sort of settling the accounts. Full justice cannot be expected from such exercises but at least the major culprits are supposed to be held responsible for their acts and, as a minimum, removed from office to clear the way for a cleaner society. Even more important is to restore the notion of justice by giving a sense of good and bad. The major beneficiaries of and perpetrators of crime on behalf of such regimes need to be named and excluded from public life.

South Africa had the Truth and Reconciliation Commission. Nazi war crime perpetrators were tried and judged in Nuremberg. German and Austrian public life was denazified. At the end of Soviet colonial rule in Central Europe, however, no such exercise took place, except some “lustration” legislation in the Czech Republic excluding some official figures from public office.

In Poland and Hungary, the political “transition” meant a “compromise” between the new and old political forces, the latter including establishment figures of the Soviet-era system. The practical result of this deal was that the former flag bearers of the Soviet era, those who actively served, often in conflict with their own country’s interests, in the puppet governments under the occupying forces, were smoothly recycled into the new political order. This “peaceful compromise” was very much “encouraged” by Western powers on both sides of the Atlantic. Anne Applebaum gave a concise description in Foreign Affairs in 1994:

“Western, particularly American, diplomats in Central Europe went out of their way to encourage politicians whom they perceived as antinationalist and to discourage “decommunization” programs, which were often favored by politicians whom they perceived as nationalist. This was the case across the former Soviet bloc, even though decommunization projects, sometimes called “lustration,” usually did little more than forbid former high-ranking communist party officials from holding office under the new regime. While diplomatic efforts did not determine the political developments in Central Europe – they did not stop the Czechs or Germans from passing laws on lustration – they did have an impact. Right-wing and conservative politicians in Central Europe failed to receive the official approval, invitations, and fellowships given their left and center-left counterparts.”

She continued to say:

“In Central Europe the greatest danger to democracy and stability does not – and never did – come from the new or the old nationalist right. The danger comes from the old left, from the remnants of the communist parties, which remain better organized and better funded than any new right-wing party could ever be. Former communist parties hold political and economic monopolies that will take years to loosen; until they do, politics will not become “normal” in any Western sense in Central Europe or elsewhere in the former Warsaw Pact.“

In case the reader sees a contradiction in Western powers supporting former Soviet-era politicians against fresh faces, there is actually none. Most of those high-ranking officials, politicians and factory directors did not attribute importance to sovereignty and patriotism. After 1990, they simply switched allegiance from the East to the West. They were more pliant and conformed much better to the by then fashionable ideas of globalisation and a nationless new world than conservative politicians who wanted to build their newly independent countries into sovereign states.

Focusing on the judiciary, it may not be widely known that after German unification, West German legal professionals simply took over the majority of their East German colleagues’ places in public offices. “Typically, GDR [East German] lawyers make up no more than one-fifth of the new ministries’ professional staff, because relatively few have been found suitable.” Especially since “many GDR jurists were involved with the former regime in various ways, rendering them unsuitable to participate in the transition.”

A massive vetting process was implemented: “The alternative of immediately dismissing all GDR judges and starting with a clean slate in October 1990 was rejected because it was simply not feasible to take such a drastic step. At the same time, it was understood that all GDR judges would undergo investigation and screening. Those who were cleared could remain as judges for a probationary period of three to five years; those who were not cleared would be dismissed. The same process would be applied to prosecutors.” [Daniel J. Meador, Transition in the German Legal Order: East Back to West, 1990-91, 15 B.C. Int’l & Comp. L. Rev. 283 (1992)]

Hungary has over and over again provoked criticism for what the European Commission called undemocratic measures. One of these was the government’s intention in 2012 to lower the retirement age of judges from 70 to 65 years. The Commission attacked the measure and it was finally withdrawn.

Some of these judges may have an impeccable record, but quite a few of them are products of the old regime. No major figures of the whole 1945-1990 period of Communist rule have been held to account, not even those known to have taken part in atrocities. Judges who sent children fighting against the Russians in 1956 to the gallows on their 18th birthday are enjoying their well-deserved old age pension. The infamous Minister of the Interior, who led the bloody and inhuman retaliation against the freedom-fighters of 1956, when finally tried, was acquitted by the Court except for some minor matters.

The expression “democratic values” has acquired a tinge of Alice in Wonderland. The EU remaining largely silent at the sight of Spanish police brutality against civilians in Catalonia, or of the police in Hungary savagely attacking demonstrators in 2006 under the government of a Socialist prime minister, apparently conforms to preserving “democratic values”.  Central European countries taking steps to improve the balance of their judiciary are clearly violating the same “democratic values”.

The EU, so open to the culture of immigrants from other continents, evidently has not seen the need to try to understand the problems of its nearby Eastern members. Even more worrisome is that Brussels’ anguish over Polish “democratic values” hides a much deeper menace. The Visegrád Four’s firm resistance to the EU’s German-led migration policy is a major risk threatening the much-touted unity of the 27 member states. Shaken by Brexit, the EU must show strength, break up the Visegrád Four’s alliance, cow them into submission. In essence, this does not differ much from what Central Europe experienced under Soviet occupation.

Britain voted for Brexit to get back her sovereignty. Central Europe would like the same. The EU resists both. Here is the basis of a strong alliance, because strong and enduring alliances can only rest on shared interests.