The Rule of Law Crisis in Poland: A New Chapter (original) (raw)

Poland's Rule of Law Crisis: Some Thoughts

Hague Journal on the Rule of Law 11, 407-410, 2019

This year, Poland celebrates the 30th anniversary of the fall of the Communist regime. This represented a crucial victory for democracy over totalitarianism and was one of the most momentous events in Polish history. Unfortunately, however, recent political developments have put a damper on the celebration. With its sustained and unprecedented assault on the separation of powers and the independence of the judiciary, the current Polish government, which took office in November 2015, has forced people to reconsider their conviction that democracy and the rule of law are now so firmly entrenched that their impairment or subversion is beyond the capacity of any government, no matter how autocratic. As a result of these developments, Poland, once a paradigm of a successful transition to democracy, has become a pariah.

The rule of law in Poland – crisis or a new reality?

Academia Letters, 2021

Following the victory in the presidential and parliamentary elections in 2015 right-wing PiS party has launched a large-scale controversial reform of the judicial system which brought significant changes concerning functions and compositions of the Constitutional Tribunal, the Supreme Court, and the National Council of Judiciary. Introduced changes call into question the independence of the Polish judiciary, both under national and EU law. The article summarizes the main reforms introduced by the ruling party and makes an attempt to answer the question of whether those changes mark only a temporary backslide or constitute a new reality of illiberal democracies within the European Union. The reform began with the Constitutional Tribunal when President Duda, despite the legal obligation to do so, refused to take oaths of new judges elected at the last sitting of the outgoing Sejm (the Lower Chamber of the Parliament). The new Sejm adopted resolutions invalidating the nominations of the previous legislature and elected new judges. Consequently, three judges were appointed for the vacancies already occupied by the judges elected in October. The above-mentioned controversies, together with further amendments on the functioning of the Tribunal, have been found unconstitutional by the Constitutional Tribunal. However, Prime Minister Szydło refused to publish Constitutional Tribunal's judgments in the Official Journal calling them the opinion of some judges. Thus, pursuant to Article 190 of the Constitution, the judgments have not come into force. The UNHRC Special Rapporteur stated that this constitutes a flagrant breach of the principles of judicial independence and the separation of powers[1]. Despite the constitutional obligation, on several occasions, Prime Minister arbitrarily decided on the publication of judgments. The adverse phenomena of peculiar "last instance" in the person of Prime Minister who decides when and whether at all a given judgment will come into force can be observed. The above constitutes a serious inference of the executive branch in judicial independence. Such interference happend once

Country Report: The Rule of Law in Poland

www.democracy-reporting.org, 2020

Since 2015, a rule of law crisis has been intensifying in Poland. The ruling party has sought and partially succeeded to capture the most important judicial bodies through laws that contradict constitutional and European standards. The covid-19 pandemic has also had an impact on the rule of law, specifically in the unconstitutional decisions taken surrounding the presidential election originally planned for May 2020. These developments have been severely criticised both at the national and international level. While proceedings against Poland before the Court of Justice of the European Union are increasing, political procedures are stuck in political deadlock. Meanwhile, Polish society is deeply divided; while the attack on the judiciary has led to mass protests, the government still enjoys high public support. This report traces the development of rule of law backsliding in the country, explains the national and international responses and lays out possible ways ahead.

Who's next?: On the Future of the Rule of Law in Poland, and why President Duda will not save it

2017

With the latest draft laws about the judiciary, the Law and Justice party (PiS) has crossed yet another line. President Duda's announcement of a veto appears on first sight to present an obstacle to PiS' march towards completely unrestricted, unitary state power. In this post, I will examine first what effects the PiS drafts will have on the independence of the judiciary by the hands of PiS and then, whether or not President Duda's so-called veto holds what it seems to promise.

Challenges to the Rule of Law in the European Union: the distressing case of Poland

Revista do Instituto Brasileiro de Direitos Humanos, 2018

The article analyzes the developments of the rule of law in Poland over last three years and discusses the current and possible future reaction of the European Union to a worrisome situation in one of its member states. It focuses on several questions. What are the reforms in Poland? Can the legal system defend itself against changes which are inconsistent with the Constitution? If not, why it retreated and ceased to be self-sufficient in this regard? What mechanisms of securing EU principles can be activated? How are they interrelated? To what extent have they already been used? Are they sufficient? These and other questions are raised in the light of the current situation in Poland. In its major part, the paper characterizes the action taken, and especially the legislative measures adopted by the ruling parliamentary majority. These measures lead to the de facto change of the system, incompatible with the current Constitution and the principle of the rule of law. The second part analyzes the instruments available within EU law in the context of Poland's membership in this supranational organization. (The paper is an advanced copy of an article published in No. 17/18 (2017/2018) of the Revista do Instituto Brasileiro de Direitos Humanos / Journal of the Brazilian Institute of Human Rights)

The Clash of Powers in Poland's Rule of Law Crisis: Tools of Attack and Self-Defense

Hague Journal on the Rule of Law, 2020

Many people must be wondering how it is possible that Poland, not so long ago hailed for its exemplary transition from a communist dictatorship to a liberal democracy , could have so swiftly descended into authoritarianism via a crisis in the rule of law. The majority of commentators point to the size and ferocity of the attack on those mechanisms meant to safeguard the rule of law, whereas few focus on the weakness of their defence. This article attempts to redress that imbalance. The crucial facts of the Polish crisis are first presented, and the nature of both the attacks on the rule of law in Poland and the measures taken in its defence are then presented. In describing their defence, this article not only draws on Nicholas Barber's concept of the self-defence of institutions, but attempts to improve upon it in the light of the Polish crisis. Further in the article, I argue that one of the reasons for the success of the assault on the rule of law is the formalistic legal mindset that is prevalent among Polish lawyers. This mindset is characterized by a reductionism of the interpreta-tive premises to be applied when deciding constitutional cases. This reductionism is conspicuous in the application of bright-line rules with no consideration of general constitutional principles. I argue that the development of a robust, non-formalistic methodology of legal decision-making is a prerequisite for a successful defence of the rule of law.

Dismantling the rule of law in Poland_Letowska.pdf

The current dismantling of the rule of law in Poland or (in a baroque manner): Convulsions in the rule of law that were not noticed and not prevented in time by lawyers, by scholars or by judges, and which caused a breakdown in the democratic order in Poland

Disciplinary Proceedings as an Instrument for Breaking the Rule of Law in Poland

Hague Journal on the Rule of Law

This article advances the thesis that disciplinary proceedings may constitute a tool for breaking the rule of law in Poland. In 2017, as part of a package of legal changes to the judiciary, a disciplinary system was created in Poland to ensure that judges were subservient to the political will of the authorities. From the beginning, new disciplinary officers appointed by the Minister of Justice (the Prosecutor General) have targeted judges who disagree with unconstitutional changes to the judiciary. Disciplinary proceedings are by no means repressions that affect judges who demand that other authorities respect the rule of law in Poland. The article discusses, on a step by step basis, the practical mechanisms taken by the political authorities to break the rule of law in Poland. Particular attention is paid to the measures which have been taken concerning the judiciary. The article discusses the judgment of the CJEU on 19 November 2019 in combined cases C-585/18, C-624/18, and C-625...