2020-12-09 (#26792255.fws)

Fundacja Wolne Społeczeństwo
ul. Święty Marcin 29/8, 61-806 Poznań (Poland)
e-mail: (...)
fax.: +48 616661059

Recipients:

Mr Charles Michel
President of the European Council
European Council
Rue de la Loi / Wetstraat 175, B-1048 Bruxelles/Brussel/Brussels
Belgique/België/Belgium
fax.: +32 22816934

Mr Andreas Stein
Head of Unit
Unit A.1: Civil justice
Directorate A: Civil and commercial justice
Directorate-General Justice and Consumers
European Commission
e-mail: (...)

Ms Věra Jourová
Vice President of the European Commission for Values and Transparency
European Commission
Rue de la Loi / Wetstraat 200, B-1049 Brussels, Belgium
e-mail: (...)

Ref.: (EC) Ares(2020)6549434 – 10/11/2020; (EC) JUST.A.1/BS/cw 7328739

Demand for democratic rule of law in the EU

The Fundacja Wolne Społeczeństwo (FWS, Free Society Foundation) demands from the European Council (Council) and the European Commission (EC) a decisive support for securing rule of law within the European Union (EU) on democratic basis, by enacting in the EU member states proper democratic institutions for independent control over judiciary and judges, such as: juries, popular elections of judges, elected disciplinary bodies for judicature. FWS especially demands support for enacting of Articles 4(1) and 187(1)(2) of the Constitution of the Republic of Poland giving to the Nation (citizens) the right to choose fifteen judges for the National Council of the Judiciary.

FWS also demands that the Council and EC take immediate measures for the EU action against every execution of a death “penalty” in every country where an EU citizen had been sent to by a state decision against his or her will or where she or he had been sent to for an international “adoption”. In support of the UN experts’ call for clemency, the EU should take an immediate action to stop on the ground of mental illness the killing (execution) of Ms Lisa Montgomery scheduled for 12 January in the United States of America (USA).

Civil society for democratic rule of law

The quest for the rule of law in the EU, with the main battlefield in Poland and Hungary, shows the ineffectivity of the EU in supporting civil society. The EU did virtually nothing to support civil society in Poland, although there is no imaginable way of building rule of law in the EU without civil society. The UE and Poland need common standards for judiciary ensuring the democratic rule of law with democracy in the first place, accordingly to the values of the EU. Law and rule of law are in a democratic state only tools of democracy, and have no value on their own. Since law is not an optimal tool, it should always be subordinated to the democratic control and to the decisions taken by citizens supported by civil society organizations.

If the EU pressure on the Polish government in 2020 is exercised to create an effective incentive for building the rule of law in Poland, it can not be narrowed to the rule of law devoid of democratic control. Polish judiciary has been a domain of politicians all the time after 1989 because the peaceful negotiations for democratization, held with the Polish “communist” party, could not be feasible if the “communists” would face any real and fair court proceedings in Poland. Today’s “judiciary” in Poland is a political domain by design. There is no chance that people in Poland will massively support such a “judiciary”. On the contrary, every EU policy of defending current form of Polish “judiciary” will result in fuelling Polish opposition against the EU.

The money transfers from the EU into the hands of political parties in Poland after 2004 have eroded democracy and strengthened political parties in Poland because the great imbalance between state administration and political parties on the one hand and civil society on the other hand, a legacy of communist era, has been only deepened by the weight of the EU money. The members of the Council should be aware of the destruction of civil society in Poland and of the impossibility of building democratic rule of law without civil society.

Law is only an imperfect and rough projection of a right decision about a specific case. The Danish Code of Jutland (Jyske Lov) indicated in 1241 the inferiority of law to the “truth” established for a specific case. Law was to be used out of necessity in a society that was already too large to be able to search together for the “truth” in every case:

(…) no law is as good as the truth, but if one wonders what the truth is, then shall the law show the truth. (…)

A compromise solution for justice and truth-finding in a large society is jury in court proceedings based on law. Jury may decide about grave cases and may decide about recall of a judge from office. The role of jury in court proceedings is a great example for a distributed decision making in democracy. Jury is not only a court institution but is also a part of a system of government, since it may for a specific case even nullify the law (“jury nullification”) and thus may give elasticity to a static legal system of a state. No central government will by able to equal in knowledge and wisdom numerous juries working allover a democratic country.

The democratic decision must not be considered to be the exclusive decision of the politicians who gathered at some moment in time, by true or false promises, more support then their opponents in an election or in an acclamation. For a true democracy, the democratic will has to be expressed both in a broad scope as well as in local and individual scope. The true power of democracy may be revealed only by institutions which distribute decision making among citizens appropriately to their knowledge of specific or local affairs and of their devotion for a specific good.

Return the courts to the citizens from politicians

Poland is an example of the destructive influence of the evolution of the political scene into a system explained by the Cartel Party Theory: political parties representing state administration instead of electorate, and cooperating with each other and with the state administration against citizens.

The key outcome of the agreements ending the communist era in Poland was the politicized judiciary being the main obstacle for further democratization of Poland. That burden was to be removed in 1997 with the new Polish constitution. The constitution removed the entitlement of communist nominees to act as judges in Polish courts and established the rule of law in Poland by stating that “The organs of public authority shall function on the basis of, and within the limits of, the law”.

Unfortunately, the corrupting influence on democracy of the power relations within the political parties and within the state administration in Poland, resembling a cartel cooperation, exceeded at the time of enactment of the new constitution already the level of control over the state that civil society could ever achieve in Poland during a quarter of century after 1989 without receiving institutional support. The new constitution was therefore never fully implemented until at least 2021. The politicians allowed the communist nominees to act undisturbed as judges on the condition that they will provide court protection for political parties and state officials in criminal activities. Furthermore, the politicians did not bother to pass legal regulations for the procedure of appointing judges in Poland which was required by the new constitution. With the verdict of 29 November 2007 (ref. no. SK 43/06) the Constitutional Tribunal in Poland nullified the provisions of law being the legal basis for nominations of judges in Poland and stated that the entitlement of the National Council of the Judiciary to formulate the criteria of the assessment of the candidatures for the posts of judges violated the Polish constitution. The verdict has been fully ignored by Polish politicians. They continued illegal, political nominations of judges. Hundreds of political judges have been nominated in Poland since 2007 against the law and against the constitution. The illegal judges in Poland are working now in a relation to the politicians that has been identified by sociologists as a “dirty togetherness”, a relation of community in crime or immorality. Those illegal Polish judges are in a great number hostile to civil society, and they are the main hindrance for building civil society and democracy in Poland.

In democracy there is a need for legal responsibility of politicians. Therefore politicians must not be empowered to elect judges who will protect their electors. Popular election should be a part of the legitimization of the procedure resulting in appointing a judge. Articles 4(1) 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 EU’s support for child trafficking and abuse

One of the main goals of the EU was to establish a common market in a way that will not destroy the interests of the participants. Influential business groups in Europe receive therefore a great protection from the EU against the forces of the EU common market, even at the price of destruction of foreign businesses, as it was in the case of excessive support for agriculture in Europe, causing the destruction of African agriculture and subsequent influx of migrants to Europe. The relation of the EU to African states is a deep moral issue with complicated human rights aspects. The migrant workers and their families who were citizens of the EU as well as the child and family protection institutions in the EU member states did not receive any protection against the great forces of international business and criminality stemming from the EU common market. The EU relation to its own citizens in international family matters is not only a deep moral issue, but also an area of grave violation of the EU law and human rights. The EU plainly supports profitable child trafficking and abuse hidden behind professional state care and “adoptions”.

The EU’s support for child trafficking and abuse hidden behind state care and “adoptions” is not only an international criminal activity of the organization (EU), but also a breach of political commitment of the EU which was heralded by the EC before the EU enlargement encompassing Romania among other states. Banning cruel practices of international “adoption” was a prerequisite for Romania’s accession to the EU. Romania banned international adoption and the accession followed. Some time after the accession the EC with the USA forced Romania behind the scene to remove the ban. In this way the EC perpetrated a political betrayal of those supporters of the EU in the new member states who seriously took the offer of the “community of values” of the EU.

The activists of the FWS were among the betrayed supporters of the EU. Trying to protect children and families in international relations they met the legal system of the EU having little basis in the EU treaty law but being very convenient for child trafficking and abuse at the same time. The fundamental part of that system is the “Brussels IIa Regulation” that establishes jurisdiction in family matters for a child out of the child’s country of origin, but fails to provide legal definitions and strict boundaries of respective family matters and fails to ensure the legal oversight at the EU level in the area of adjective law for family matters.

On 10 May 2020 (26697791.fws), in continuation of previous correspondence, the FWS notified the EC about the criminals acting in family matters as “judges” in Germany, continuing previous correspondence. One of them, sitting in family court in Dresden (Amtsgericht), organized child abduction followed by an assault and battery perpetrated by the judges’s minion on the child’s mother. Earlier, on 27 January 2020 (#26335233.fws), the FWS notified the EC about the criminal cooperation between the EU politicians and the representatives of the USA, in child trafficking from the new member states of the EU to the USA. The FWS informed the EC also about the illegal child trafficking within the EU borders, of children under state-established custody.

On 10 November 2020 (EC, Ares(2020)6549434) the EC, Directorate-General for Justice and Consumers, refused to support the efforts of the FWS for the rule of law within the family court proceedings. Those efforts were based on the adjective law only, and concerned court protection of parental authority, rights or responsibilities and custody or care for a child in migrating worker’s family within the EU borders. Since the jurisdiction in the area has been established solely on the ground of the EU adjective law created by the EC for family matters, and since the said FWS’s efforts ware of formal-only nature, the EC’s refusal of the support should be considered to be an obvious and grave breach of the EC’s responsibility to protect the EU citizens against the unlawful actions of the member states empowered by the EU law. All the cases presented by the FWS brought strong evidence of systemic and purposeful violations of the legal norms of court proceedings in a member state. The merits of family nature of those cases were out of the scope of the FWS’s efforts.

The EC knowingly created the legal situation allowing child snatching covered by the EU law. The above mentioned German court presented a real banditry in family matters. An English court in Chelmsford organized adoption of a child of a Polish migrant family and referred the “Brussels IIa Regulation” as the legal basis for the adoption. The Court did not care that the Regulation excluded adoption from its scope. It might easily happen because the EC claims that “The European Commission has no general powers to intervene with the Member States.” (EC, Ares(2020)6549434). There was no assistance in the proceedings despite lacking mental capacity to make legal decisions on family side. The court stopped the civil society organization from participating in the proceedings.

The EC legal policy of avoiding protection of child and family within jurisdictions established by the EU law, and of promoting of the rule of law without democracy, as for Poland and Hungary, has no basis in the values of the EU and in the EU law. There is no ground for the concept that the EU treaty law creates legal basis for establishing jurisdiction and entitlement to create adjective law regulations in family matters, but does not establish at the same time legal basis for oversight of the implementation of those regulations. There is no place within the EU treaty law for legal empowerment without legal oversight and without independent democratic control.

There should also be no place in Europe for an international organization (EU) that claims to offer a “citizenship” and at the same time allows to traffic its “citizens” abroad for abuse or rape as it was with children “adopted” internationally from Poland to the USA in recent years.

The EC has a deep knowledge about the child trafficking between the new EU member states and the USA, had been previously opposing such criminal activity, and has great means to stop it now. The EC should return to their previous policy of blocking child trafficking. Allowing the abductions of the EU citizens to the USA under the guise of “adoption” created the obligation to react to the human rights violations in the USA. The return to the EC’s policy of blocking child trafficking should begin with fulfilling this obligation.

In order to protect the victims of child trafficking from the EU and to protect basic human values among nations, the EU should immediately protest against the planned killing (“execution”) of Ms Lisa Montgomery, and officially respond to the human rights expert calls (“UN experts call for clemency for Lisa Montgomery, as US reschedules planned execution”; https://news.un.org/en/story/2020/12/1079192) in her case:

(…) UN independent human rights experts expressed serious concern on Thursday, after the United States Government rescheduled the execution of Lisa Montgomery for 12 January, just days before new President Joe Biden, an opponent of the death penalty, is due to be sworn in. (…)

The EC should recognise their legal obligation to forcefully forbid state killing of a victim of crimes beyond comprehension:

(…) the victim of horrific life-long cruelty that began when she was 11, when she was subjected to multiple rapes, and later forced into prostitution, aged 15. (…) In 2004, shortly before Ms. Montgomery killed a pregnant woman, cut the baby from her stomach and pretended the child was her own, her former partner had threatened to take custody of her children. (…)

The virtue of humanity is to be upheld even against such a deed that allegedly committed Ms Lisa Montgomery.

Stop the vassalization within the EU

The Council’s dispute about the money transfers from the EU into the hands of political parties in Poland and Hungary should not be excused by the values of the “rule of law”, but should be seen as a struggle for political influences, even “vassalization”, in the new EU member states, which further destroys democracy in those states.

The politicians of Poland and Hungary may be steered by the money transfers from the EU. The EU money avoids the civil society needs by far and goes to the politicians. This is not a way to democracy. This is the way to the vassalization within the EU. The politicians paid with the EU money are now in the search for castles for themselves, as the Hungarian journalists inform:

(…) the son-in-law of the Prime Minister also contributed to the establishment of a joint stock company whose subsidiary acquired the Tura Castle. (…)

The new castle owners in the EU are evidently in a grave need for international political protectors. The Belgian handling of the “Brussels male sex party attended by anti-gay Hungarian MEP” of 27 December 2020, and the timing of the “event” in connection with the Council’s dispute about the EU money transfers, are an example of a source of political influence that may on demand easily distort democracy through the use of closed knowledge about politicians who exist politically only with the foreign support.

The Council should stop the vassalization within the EU. The rule of law may only be realized within the EU supported by civil societies in member countries, and not by political vassals. The EU needs truly democratic rule of law, and needs measures of legal and political responsibility of politicians. The criminal data presented or gathered for law enforcement or for state intelligence must not be misused for political competition or influencing. The EU money should build civil society institutions, and not be spent for castles for vassals.

Above all, the EU should remain the community of values. Humanity should be the core value of the EU. Therefore the FWS requests the EU intervention in the case of killing (execution) of Ms Lisa Montgomery. The EU may always represent humanity among nations.


Fundacja Wolne Społeczeństwo