State of Play: Rule of Law in Poland

On Wednesday 22 March the European Parliament’s Civil Liberties Committee will question Commission First Vice-President Frans Timmermans about the respect of the rule of law in Poland. We asked Milosz Hodun from our member organization Projekt: Polska to update us on the latest state of play of the situation on the ground.

The Law and Justice Party (PiS) finished its battle against the Constitutional Tribunal in Poland. On 21 December 2016, the President of Poland appointed Julia Przyłębska (privately a wife of newly nominated by PiS Polish ambassador to Berlin) as the President of the Constitutional Tribunal. The legality of this appointment is very questionable. The documents received from a session of the General Assembly of Judges of the Constitutional Tribunal that nominated Przyłebska suggest that the General Assembly’s deliberations might have been held in violation of statutory law.

President Przyłębska immediately approved new rules approved by PiS, but declared unconstitutional by the Tribunal itself. First and foremost she allowed the three “anti-judges” (elected illegally by PiS) to assume their judicial duties. She also forced Vice-President of the Tribunal to go on compulsory leave. Now it’s only her who decides on the composition of the judicial panel, and unsurprisingly she chooses the PiS nominees and anti-judges. Because legality of their decisions could be questioned, some applicants have already withdrawn their cases from the Tribunal. Constitutional Tribunal in Poland is now officially only a sham court.

What is more, Poland’s Attorney General has asked the country’s top court to examine the appointment of three Constitutional Tribunal judges in 2010. Zbigniew Ziobro, who is also Poland’s Justice Minister, wants the Constitutional Tribunal to probe parliament’s approval of the selection of three judges in 2010 when the now-opposition Civic Platform (PO) party was in power.

But PiS is attacking the judiciary not only by destroying the Constitutional Court. PiS contested the mandate of the Supreme Court First President Małgorzata Gersdorf after she criticized the government for undermining the judiciary, deepening a rule-of-law dispute that has set the nation on a collision course with the European Union. Members of the ruling party made a request to the Constitutional Tribunal to dismiss Mrs. Gersdorf. The opposition and independent NGOs, e.g. Helsinki Foundation for Human Rights, protest against the attacks on the judiciary in Poland and stresses that this application to the Constitutional Court is revenge for Gersdorf’s recent critical statements on planned judicial reforms.

The latter ones are designed to reform the National Judiciary Council (KRS), a constitutional body that nominates judges, dividing it into two chambers and terminating the terms of its current members. At present members of the KRS (except the Justice Minister, and heads of the supreme court and central administrative court) are selected by an assembly of judges. Changing the rules of appointing the KRS members will politicize the KRS, putting a threat to courts and judges’ independence and to citizen’s right to court, according to judges.