Dear colleagues, I am very proud to join you in this conference and to be in such great and distinguished company tonight. I don’t think (m)any of us can imagine what it really means to be a judge in Poland in a hostile environment. What it means to be exposed to harassment from a government that in fact should protect its judiciary. The stress must be unbearable for all of you from time to time. And the impact of this witch-hunt on your private and family lives must be terrible. 

I have been asked to speak a few words tonight about the meaning of solidarity amongst judges in Europe. I will of course happily comply with your request. One year ago the unprecedented March of 1000 Robes took place in the streets of Warsaw. Judges from 24 countries joined the March, supporting Polish judges, lawyers and the entire Polish society. Many of you now present joined the Silent March last year. And from now on 11 January celebrates Judges’ Solidarity Day.

I have wondered why the solidarity expressed in the Silent March last year was so important. In social sciences solidarity always serves a purpose. Solidarity creates an awareness of shared interests and sympathies. Solidarity builds social cohesion when there is a need for. It reminds us of the unity that is needed in times of crisis. Whether it is during wars, famines or natural disasters. 

Judicial independence has never been self-evident. What we now see in many democratic nations is that the judiciary falls into somewhat of a paradox. Judges serve as a crucial check on the executive and legislative branches. But at the same time judges must rely, to an extent, on the respect of those branches to retain their independence. This really is not a new discovery. Judges are - as Alexander Hamilton wrote in 1788 – ‘the least dangerous branch of government’. 

The crisis in Poland emphasizes both the importance and the fragility of the judicial branch. Since WW2, more than ever before, judicial independence in Western-Europe is in serious danger. Populism has had great corrupting effect on international society in the last decade. It poses a serious threat to democracy and the judiciary. Not only in Poland and Hungary but also in my country, the Netherlands. 

It is only now that the people at large all over the world slowly begin to see the evil of deliberate disinformation, the war on truth, the danger of fact-free opinions, the abuse of power, lawlessness and cynicism. President Trump may be leaving office soon, but the impact of 'trumpism' is still very much part of this world. The storming of the Capitol in Washington may not be the end of the Trump-era, it may just as well be the start of a civil war. 

Therefore, from an ethical standpoint the Silent March served not only for supporting our Polish colleagues. More importantly it served to protect shared European values. It unites European judges in the struggle for the protection of the rule of law and the basic principles of democracy that are a cornerstone of the Union. As the EU is a value society it is our great duty to uphold the principles of democracy and the freedom of citizens and societies.

If judicial independence is threatened, or attacked, judges have a constitutional duty to defend their position fearlessly. These responsibilities have been explicitly affirmed by the Strasbourg Court of Human Rights in its case law, and by the Consultative Council of European Judges of the Council of Europe. Especially in the European Union the protection of these values should not be limited to national boundaries. 

In hindsight the Silent March in Warsaw was no coincidence. And it is also safe to say that the March was inevitable in the light of modern European history. The March was the culmination of a deeply felt concern of judges in Europe about the rapid and dangerous decline of the rule of law in Europe that needs a strong signal to the EU institutions. This clear and present danger justified judges to take part in a public protest, even when it needed the very unusual step to travel abroad, armed with their robes. 

Dear friends, let us look forward now. Poland’s story is also our story. It is not only a cautionary tale But also a tale of hope. While the Law and Justice party in Poland has undermined the integrity of the justice system in Poland, advocates of an independent judiciary have refused to back down. The ruling party faces opponents from within Poland’s borders and from without. The backlash that the party has received shows that the third branch still has plenty of supporters in Poland and throughout Europe. 

It is crucial that we now maintain this positive momentum, and that we secure the solidarity we European judges just found. Therefore, I very much hope that today will be the start of a long-term cooperation between judges all over Europe. I thank you very much for your time and kind attention. 

Prof. dr. Marc de Werd – senior justice at the Court of Appeal of Amsterdam in the Netherlands – member of the Consultative Council of European Judges CCEJ/CCJE 

Bron: European Courts blogspot