2015–present Polish constitutional crisis

The 2015–present Polish constitutional crisis, also known as the Polish rule-of-law crisis, is a political conflict where the Polish government is accused of failing to adhere to European and Polish constitutional law. The conflict was precipitated by the 2015 Polish Constitutional Court crisis where the 2015 elections allowed the Law and Justice party (Prawo i Sprawiedliwość, PiS) to take control of both the presidency and parliament. With this government trifecta as a result of its participation in the United Right, PiS used its power to appoint judges to the Constitutional Tribunal in 2015. The government of Poland continued to expand its hold on the judiciary resulting in the 2017 Supreme Court crisis, and the 2019 Polish judicial disciplinary panel law. These events have allowed the legislature and executive of the Polish government to have de facto control over judges and their appointments.[1]

These moves have been condemned by the European Union which initiated an Article 7 process against Poland. The European Commission referred Poland to the European Court of Justice (ECJ), stating in 2017, "the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch."[2] In 2019 and 2020, the ECJ ruled against Poland in Commission v Poland, ordering it to suspend several laws which interfere with the independence of the judiciary, but these rulings have been largely ignored in Poland.[3] The crisis briefly jeopardised the EU coronavirus budget which allowed funds to be made available to EU member states on the condition of "rule of law", a clause which both the Polish government and Hungarian government threatened to veto in 2020.[4]

Since the changes to the judiciary, a number of protests have taken place as a result of either the changes themselves, rulings by the new judiciary, or other legislative action deemed to break European or international human rights legislation. This includes the Black Protest and 2020 Women's Strike against changes to women's rights, the Polish Sejm Crisis against restriction on press freedoms, and the 2020 LGBT protests in Poland against restrictions on LGBT people.[5] These rulings and legislative actions with the corresponding protest action have exacerbated the crisis in Poland.

Background

Constitutional Tribunal
Main article: Constitutional Tribunal (Poland)
List of TC judges by seniority in June 2015
NoJudge[lower-alpha 1]Nomination dateEnd of term
1Maria Gintowt-Jankowicz 6 November 20066 November 2015
2Wojciech Hermeliński 6 November 20066 November 2015
3Marek Kotlinowski 6 November 20066 November 2015
4Zbigniew Cieślak 2 December 20062 December 2015
5Teresa Liszcz 8 December 20068 December 2015
6Mirosław Granat 27 April 200727 April 2016
7Andrzej Rzepliński (President) 19 December 200719 December 2016
8Stanisław Biernat (Vice-President) 26 June 200826 June 2017
9Sławomira Wronkowska-Jaśkiewicz 6 May 20106 May 2019
10Stanisław Rymar 3 December 20103 December 2019
11Piotr Tuleja 3 December 20103 December 2019
12Marek Zubik 3 December 20103 December 2019
13Małgorzata Pyziak-Szafnicka 5 January 20115 January 2020
14Andrzej Wróbel 29 May 201129 May 2020
15Leon Kieres 23 July 201223 July 2021
  Nominated by PiS or its coalition partners (2006-2007)
  Nominated by PO or its coalition partners (2007-2015)

The Constitutional Tribunal (TC) of Poland was founded in 1982 by the government of the Polish People's Republic. It oversees the actions of government, including legislative action, to ensure compliance with the Constitution of Poland. Judges are elected to the court by the Sejm and approved by the President. The court is made up of 15 judges who serve single nine-year terms and which point they are replaced through agreement of the Sejm and President.[7] In 2015, before the crisis, the court was made up of ten justices nominated by the centre-right Civic Platform (PO) and five justices nominated by the right-wing nationalist Law and Justice Party (PiS).

Abortion law in Poland
Main article: Abortion in Poland

In Poland it was illegal to have an abortion except where the mother's life was at risk, the pregnancy was a result of rape or if the foetus had "severe and irreparable" impairment. The largely Christian conservative base of PiS follow the Catholic Church teaching on abortion. In 2017, a Pew Research Center poll showed 51% of Poles thought abortion should be illegal in all or most cases.[8]

2015 Polish presidential election
2015 Polish presidential election
Andrzej Duda, Law and Justice (PiS)
Bronisław Komorowski, endorsed by Civic Platform (PO)

In May 2015 Andrzej Duda was elected as President of Poland with a radical right-wing platform, defeating incumbent Bronisław Komorowski of the Civic Platform. Prior to the election, Komorowski was believed to be the favourite to win.[9] Duda promised to block the Constitutional Tribunal nominations of the Civic Platform-controlled Sejm until after the 2015 Polish parliamentary election.

First Duda term

2015 Constitutional Court crisis
Main article: 2015 Constitutional crisis (Poland)
The Constitutional Court in Warsaw
Protests against the appointment of new judges to the Constitutional Tribunal at rally organised by the Committee for the Defence of Democracy
Protestors for the changes to the Constitutional Tribunal at a Law and Justice rally

Between the election of Duda and the start of the 8th Sejm on 12 November 2015, 5 seats on the TC were due to expire. The 7th Sejm, controlled by PO and its allies completed its election process for replacement judges. However, Duda refused to swear in these nominees until after the sitting of the 8th Sejm.[10] Following the 2015 Polish parliamentary election in October 2015, PiS took control of the Sejm and elected its own five replacement judges, who were elected on 2 December and sworn in on 3 December by Duda.[11] PO claimed this was unlawful,[11] whereas PiS claimed that the initial election of judges by 7th Sejm was unlawful. On 3 December the TC ruled that 3 of the judges nominated by the 7th Sejm were legally elected; 2 were not. Despite the ruling, Duda did not swear in the legally elected judges.[12] The President of the Constitutional Tribunal dictated that the new five judges should not hear cases until the situation was settled; in order to combat this, PiS passed a series of laws through the Sejm and Senate which compelled the TC to allow the judges to hear new cases. The new legislation was signed into law on 28 December. In January 2016, the TC ruled the five new judges elected by the 8th Sejm were legally appointed, but in March 2016 ruled the new legislation unconstitutional. The latter ruling was ignored by the Polish government, which considered the ruling "advisory".[13][14] The crisis provoked outrage in the European Union which began an investigation into Poland under Article 7 of the Treaty on European Union, describing the situation as threatening the rule-of-law.[15][16] Protests both for and against the government of Poland occurred in Warsaw and other major Polish cities.[17]

On 13 January 2016, the European Commission launched a formal rule-of-law assessment to determine a serious threat of a breach of Union law based on rules set out in 2014 and the provisions of Article 7 of the Treaty on European Union, regarding the amendments of the constitutional court and the public media law in Poland. A recommendation, the second step in the rule-of-law assessment, was issued on 1 June 2016.[18][19] Iverna McGowan, director of Amnesty International's European Institutes office in Brussels, commented: "The willingness of the commission to use the rule-of-law framework is a positive step towards a more serious approach by the EU to speak out and hold its own member states to account on their human rights records."[20] Hungary declared that it will oppose any sanctions against Poland.[21]

On 11 March 2016 the Council of Europe's Venice Commission, who had been asked for an opinion by the Polish government in December 2015, assessed the amendments as crippling the Court's effectiveness and undermining democracy, human rights and the rule of law.[22] On 13 April 2016 the European Parliament, by 513 votes to 142 and with 30 abstentions, passed a resolution declaring that the Parliament "is seriously concerned that the effective paralysis of the Constitutional Tribunal in Poland endangers democracy, human rights and the rule of law".[23]

In July 2016, the European Commission issued a statement outlining its recommendations regarding "the rule of law in Poland", including the swearing-in of the three judges elected by the 7th Sejm and the adherence to the March 2016 TC ruling declaring that changes to the structure and functioning of the TC were unconstitutional.[15][24]

Sejm Crisis
Main article: December 2016 Polish protests
Opposition MPs protesting against limits on press freedom

In 2016, the government passed legislation which only allowed a small number of journalists and TV stations to report from parliament. This was seen as a continuation of PiS anti-journalistic policy, and resulted in protests. Inside the parliament building, opposition MPs staged a sit-in, forcing government legislators to pass bills elsewhere, and protestors outside the building gathered, shouting "freedom, equality, democracy".[25]

Black Protest
Further information: Abortion in Poland § Black Protest

The 8th Sejm held debates on reforming abortion law in Poland, in order to make them more restrictive. The votes on the new restrictive abortion legislation took place on 6 October and were voted down due to domestic and international pressure. Despite a lack of legislative changes, PiS MPs began ligation in order to see abortion become more restrictive.

2017 Supreme Court crisis
See also: Supreme Court of Poland

In 2017 the Sejm and Senate passed a law mandating retirement for all judges aged over 70, unless given an exemption by the Minister of Justice. Following widespread protests this law was vetoed by Duda. A revised bill, mandating retirement at aged 65 was eventually passed and signed by Duda, giving significant control the government over judges and their livelihoods.[26][27]

In December 2017 the European Commission warned that "over a period of two years the Polish authorities have adopted more than 13 laws affecting the entire structure of the justice system in Poland", stating that "Article 7(1) of the Treaty on European Union provides for the Council, acting by a majority of four fifths of its members, to determine that there is a clear risk of a serious breach by a Member State of the common values referred to in Article 2 of the Treaty... The Commission can trigger this process by a reasoned proposal."[2] In December 2018, a new law was signed by Duda, reinstating all judges who had been removed from their posts by the 2017 law — despite this, concerns in the European Union remained.[28] In April 2020, the ECJ ruled that Poland had still "failed to fulfil its obligations" under the Treaties of the European Union.[27][29]

LGBT-free zones
Main article: LGBT-free zone
2019 pride march in Rzeszów following an attempt to make the area an "LGBT-free zone"

In 2019 and 2020, LGBT-free zones were declared across many local authorities in Poland, with over 100 municipalities voting to declare themselves LGBT-free.[30] Whilst without legal backing, such declaration were found by the European Commissioner for Human Rights as "stigmatisation" which "directly impact" LGBT citizens, contrary to the European Convention on Human Rights and likely prohibited by Article 34 of Constitution of Poland.[31] The European Union broadly denounced these declarations, with the European Parliament voting overwhelming to condemn such declarations.[32] Polish political leaders, such as Robert Biedroń, have compared the declaration to the judenfrei zones created by Nazis in Poland.[33] Due to the breach of Article 2 of the Maastricht Treaty, the European Union's Structural Funds and Cohesion Fund can no longer be used in these areas. However, the Polish government pledged to fill the gap in funding to affected areas, in opposition to the EU but supported by the Catholic Church.[34][35] President Ursula von der Leyen said "LGBTQI-free zones are humanity free zones. And they have no place in our Union" during her State of the Union speech in September 2020, indicating the strength of opposition in the European Union.[36]

2019 Judicial disciplinary panel law
Main article: Polish judicial disciplinary panel law

On 20 December 2019 the Sejm voted to allow Disciplinary Chamber of the Supreme Court of Poland to remove judges deemed to be partaking in "political activity". This gave the government de facto control of entire judicial arm of the state. The law also gave government greater control over appointment to the position of head judge of the Supreme Court of Poland. The law was criticised by the UN Human Rights Commission which stated the law "risks further undermining" the Polish judiciary.[37] The European Union also criticised the bill, with Poland risking further sanctions under Article 7 and by the European Court of Justice.[37] The EU urged Poland not to pass the bill, and to consult the Venice Commission, yet it passed.[38] The Association of Judges of Ireland condemned the Polish legislation.[39] Koen Lenaerts, President of the Court of Justice of the European Union, warned that "You can’t be a member of the European Union if you don’t have independent, impartial courts operating in accordance with fair trial rule, upholding union law".[40]

The Polish Supreme Court stated that the bill was a "continuation of the lawlessness of the 1980s". According to the court: "Everything is there: a ban on the freedom of speech by judges, the establishment of a surveillance mechanism and a drastic reduction of their right to have profiles on social networks".[41] The Polish Supreme Court, prior to the bill passing, said that Poland overruling the primacy of EU law may force it out of the bloc.[42][43]

Donald Tusk, former European Council president, warned the bill might force Poland out of the EU. Ombudsman Adam Bodnar said the law "violates the Constitution and the ground rules of the rule of law" and "would definitively put Polish courts and judges under the control of the legislative and executive branches of government". Special Rapporteur of the United Nations on the Independence of Judges and Lawyers Diego García Sayán and President of the European Association of Judges José Igreja Matos warned the legislation "runs contrary to judicial independence".[44]

2019–20 elections
2020 Polish presidential election
Andrzej Duda, endorsed by Law and Justice (PiS)
Rafał Trzaskowski, Civic Platform (PO)

In 2019 and 2020 PiS and the United Right retained control of the parliament and presidency of Poland. In the 2019 Polish parliamentary election, which had the highest turnout since the fall of communism in Poland,[45] PiS retained 43.59% of the popular vote for the Sejm and 44.56% of the vote for the Senate,[46] marking a positive swing in these elections.

In 2020, the 2020 Polish presidential election took place, with Duda winning with 51.03% of the vote. Independent observers from the Organisation for Security and Co-operation in Europe found that Telewizja Polska, the Polish public broadcasting service, was inappropriately and "clearly biased" towards Duda and PiS in both elections.[47][48]

Second Duda term

LGBT rights
Main article: August 2020 LGBT protests in Poland

In August 2020, following the arrest of Margot, an LGBT activist, several mass demonstrations took place across Poland. In central Warsaw, this protest degenerated and led to a violent police response, in turn resulting in further protest action. These protested against the "LGBT-free zones", police violence and human rights rollbacks by the government.[49][50][51] It has been described by some media outlets as "Poland's Stonewall".[52]

In January 2021, the trial of three Polish activists began, charged with offending religious feelings after creating and posting posters of the Black Madonna of Częstochowa with the rainbow flag, popularly known as the Rainbow Madonna.[53]

Abortion rights
Main article: 2020 women's strike protests in Poland
October 2020 protests against abortion restrictions in Kraków, Poland

On 22 October 2020, the Constitutional Tribunal ruled that abortion in cases of disability or life-limiting illness were unconstitutional, further limiting abortion rights in Poland. The decision was nearly unanimous, with judges ruling 11–2 in favour of limiting abortion. The court found it violated the right to human dignity enshrined in the Polish constitution.[54] This precipitated significant protests and civil unrest. Protests began on the day of the ruling, but have continued, especially in major cities such as Warsaw, which saw an estimated 100,000 people protest on 30 October.[55] Protests continued throughout November and December 2020. On 27 January 2021, the ruling was formally published in Dziennik Ustaw and enforcement of the ruling began across Poland, precipitating further waves of unrest. Poland now has one of the most restrictive abortion laws in Europe, described as a "near-total ban" by the BBC as 98% of previous abortions in Poland took place under the laws now deemed unconstitutional.[56]

Opposition groups
Image of a poster used by the All-Poland Women's Strike in 2020

Parliamentary parties

Other

International

Role of the European Union
See also: Poland in the European Union

Under European Union law, the European Court of Justice may strike down member state law if the laws are incompatible with Treaties of the European Union. Examples include judicial independence, human rights (including women's rights and LGBT rights) and freedom of the press. Thus, the European Commission refers to a lack of rule of law in Poland, as Union law is not being applied.[2][3][4][24] Article 7 of the Treaty on European Union allows the Union to suspend the rights of membership if a nation breaches Article 2, namely "respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities". However, this would be subject to a veto by any other member state, with Hungary indicating it would veto such action. Despite this, attempts have been made to introduce sanctions or make funding conditional on the rule-of-law, such as in the Next Generation EU budget,[4] Structural Funds and Cohesion Fund.[34]

See also

Notes
  1. The colors only represent the majorities that elected each judge, as the Polish Constitution of 1997 mandates that judges shall be independent and shall not belong to any political party (Article 195)[6].

References
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