The rule of law in Poland in 2020
In August, a report called “A DIAGNOSIS OF THE DETERIORATION OF THE RULE OF LAW FROM A COMPARATIVE PERSPECTIVE” was published by Marek Tatała, Eliza Rutynowka and Patryk Wachowiec under the oversight of liberal organisations Civil Development Forum (Poland based Forum Obywatelskiego Rozwoju), 4Liberty.eu and RuleOfLaw.pl in cooperation with the Friedrich Naumann Foundation for Freedom. This report is focusing on the current and latest developments in Poland regarding democracy, constitutionalism and the rule of law since 2015.
The report starts with the summary that the presidential elections in Poland in 2020 won by Andrzej Duda, the candidate of the ruling Law and Justice (Prawo i Sprawiedliwość, PiS) party, indicate that the further deterioration of the rule of law in Poland can be expected.
According to the report, PiS has succeeded in changing constitutional reality in Poland and that the weaknesses of the justice system which existed before the 2015 parliamentary elections facilitated PiS’s attack on various judicial institutions, and were used by the ruling party as justifications for their ‘reforms‘. Because PiS’s policies did not represent a true response to the real problems existing in the courts and the prosecution service, and in fact, have worsened the situation.
For example, the National Council of the Judiciary, where only 32% of whose members had been elected by politicians in the past, has come to be dominated by the ruling majority’s nominees. Since the changes introduced by PiS, 92% of the members of the NCJ are now political appointees. Another example is that the ruling majority has taken full control over the prosecution service by changing the entire system. Instead of reforming it, PiS and their partners have transferred almost all power over the prosecution into the hands of Zbigniew Ziobro, the Minister of Justice and the Prosecutor General.
The report states that the topic of the rule of law in the European Union frequently arises in public debate, usually as a result of developments in two member states: Hungary and Poland. The governments of these two countries have for years been fierce opponents of linking the EU budget with the rule of law, as it was negotiated during the five-day EU summit which ended on 21 July 2020.
In Poland, several problems such as lack of effective procedures and transparency, the incoherent language of court’ decisions and the deficiencies in organisational culture among judges have existed in the judiciary for many years. According to writers, this development led to growing backlogs. It resulted in low public trust in courts where the majority of Polish people had negative opinions about courts before Law and Justice initiated their ‘reforms’. According to surveys, the length of proceedings remains the main problem in the judiciary, while public opinions about the courts in Poland have not improved despite the ‘reforms‘.
The report presents several examples of how the ruling PiS party has been motivating its judicial reforms on false and inaccurate grounds. For example, one of the PiS political statements was that the government should get rid of “communist judges”. However, concerning “de-Communisation” proposal, the average age of a judge is currently about 46, and there is no proof of any influence of Communism on the adjudication process. The remaining Supreme Court judges that served after 1990 have little or no influence on case law.
Regarding the Constitutional Tribunal, writers argue that the tribunal’s role has been marginalised since it was unconstitutionally captured by PiS and gradually converted into a rubber-stamping body. Following older principles, the Tribunal’s judges are elected by the lower house of the parliament (Sejm) for nine-year terms. To begin acting as such, all newly elected judges take an oath before the President of the Republic of Poland. However, this did not happen in 2015 as PiS related President Andrzej Duda refused to take oaths from judges of the Constitutional Tribunal who had been elected by the previous ruling party. An act that led to a deep constitutional crisis and was the first of many violations of the Polish Constitution committed by Law and Justice.
The quality of the process for selecting candidates has also deteriorated. Even in the past, non-governmental organisations and experts criticised the late submission of candidates, the lack of public hearings, and the insufficient verification of candidates’ competences and views by parliament. The situation worsened after 2015, and there has been almost no parliamentary debate about Law and Justice’s nominees to the Tribunal with each debate coming to a symbolic early end when the opposition begins asking the candidates questions about the CT’s lack of independence.
The Constitutional Tribunal has also been used instrumentally by PiS, as writers put it, not to review the constitutionality of legal acts, but to support amendments passed by the ruling party or to fight other state- and constitutionally-established bodies (such as the Supreme Court) and EU institutions. For example, the Constitutional Tribunal deemed the resolution of the three combined chambers of the Supreme Court to be incompatible with the Constitution of the Republic of Poland and the EU-treaties. Creating a situation in which a body masquerading as a court has the final say on whether domestic legislation is in line with EU law.
Similar actions have taken place concerning the Supreme Court, concerning the new National Council of the Judiciary dominated by the nominees of the ruling majority. Also, a special Disciplinary Chamber (DC) was created and filled as an appellate court in disciplinary cases against judges, prosecutors and other legal practitioners. Many people associated in the past with the Minister of Justice/Prosecutor General Zbigniew Ziobro and Law and Justice, including five former prosecutors, have been appointed to sit on the Disciplinary Chamber.
Finally, the report also presents results from different surveys concerning the rule of law. For example, The Rule of Law Index by the World Justice Project is one of many examples of indices where Poland’s position has fallen, from 12th place in 2016 to 15th in 2019.
According to writers, the worst types of violations have taken place in Poland, such as attacks on the independence of the judiciary and the weakening of the separation of powers in the state. The highest decline was related to improper government influences on the judiciary and the growing concentration of government powers. At the same time, deteriorations in transparency and the freedoms of assembly and association have also been observed.
For more information about this report, click on the following link.