Following Polish elections in 2015, the nationalist right-wing, Christian populist party Prawo i Sprawiedliwość (PiS) has gained majority power in Polish parliament, thus thrusting the nation into the international spotlight due to judicial reforms that some argue are threatening Polish judicial independence and casting doubt on Poland’s relationship with rule of law.
Reforms were initiated in 2017, with the purpose of increasing a sense of accountability within the Polish judiciary system, especially as the country continues to carve out a path for itself post-communism. However, since the onset, they have been met with widespread public outcry, with critics arguing that they represent a corruption of democracy, a descent into authoritarianism, and a betrayal of basic human rights to freedom of speech and expression.
PiS has been widely criticized as EU-skeptic for actions that have been interpreted as attempts to gain control over the judiciary. For example, a law enacted by PiS lowered the mandatory retirement age on the Polish Supreme Court from 70 to 65, thus automatically forcing 27 of the 72 sitting judges out of power, including the First President, who is the head of the Supreme Court. Of additional concern, according to the European Court of Justice (ECJ), was the prescription of power to the President to arbitrarily extend the age mandate, but with no clear guidelines as to under what circumstances he may be able to do so. This means that the President may extend the term of service of a judge based entirely on his own discretion and not based on any definite legal framework. Understandably, this has the potential of encouraging favoritism of judges on the Supreme Court. There are considerable concerns regarding certain judges who may fail to separate their alliance to PiS’ political ideals from their judicial activity.
In response to the passage of the aforementioned Law on the Supreme Court, the ECJ ruled that it was indeed a breach of judicial independence and violated the EU rule of law framework that is crucial to the resilience of judicial protection in the European Union.
The response of the European Commission upheld the decision of the ECJ, with the additional note that the Polish government is required to uphold EU rule of law standards, and as a member state, Polish law is preempted by European law.
The aforementioned EU rule of law framework is the principle on which many debates on Polish judicial independence hinge. As enacted in 2014, this Act is meant to facilitate communication between EU member states in order to address potential threats to rule of law, as well as allowing states to foster communication with the European Commission in order to mitigate rule of law concerns.
The most relevant provision made in this Act for the Polish case of judicial reform are sanction mechanisms to motivate member states to adhere to European rule of law principles. In the case of infringement of any of the stipulations made in the framework, the ECJ may invoke Article 7 procedure of the EU Charter of Fundamental Rights, which would result in the suspension of Poland’s voting rights on the European stage.
The European Commission initiated infringement proceedings in July of 2018, and in September of the same year, referred Poland’s case to the ECJ, which finally ruled against the imposition of the new law in December. This final decision forced PiS to reconsider its methods of exercise of control.
PiS then began to focus on the National Council of the Judiciary, which is the body in charge of appointing judges. Once again, there was huge public outcry, to which PiS responded with the passage of yet another controversial law. This law effectively penalized judge criticism of PiS. Poland’s lower house, the Sejm, adopted the Act on the Organization of Ordinary Courts on December 20, 2019, thus allowing the firing of judges who are vocal critics of PiS’s policies. This Act was called “draconian” by groups such as Human Rights Watch. It resulted in many cases of harassment against judges who spoke out against PiS, or who advocated for judicial independence or adherence to EU judicial frameworks.
The Act on the Organization of Ordinary Courts created an offense out of questioning the legitimacy of governmental appointment of other judges, and of the validity of subsequent “constitutional mandates.” It also disallowed all judges from participating in public and extrajudicial activities that go against the principles of impartiality. Effectively, while it is appropriate to a certain degree for the law to place conditions on the political activities of judges, the European Court of Human Rights has previously held that cases of judicial activity falling into the realm of broader public interest are protected under Article 10 of the European Convention of Human Rights, which guarantees freedom of speech and expression. Article 10 also may be extended to protect a judge’s right to question the legitimacy of other judge’s appointments, which is also threatened by the Act on the Organization of Ordinary Courts. Article 55 Section 1 of this Act has prohibited actions that pose a challenge to judge appointment, judge legitimacy, or constitutional efficacy. This section contrasts specifically with Article 6 Section 1 of the European Convention of Human Rights, which broadly enshrines an independent judiciary.
The European Commission issued an Urgent Joint Opinion in response to these changes, thus summarizing the concerns that many proponents of freedom of speech and judicial independence from across the European continent share.
Evidently, the balance between Polish national independence and it’s alliance with external frameworks of international institutions is more tenuous now than ever. Much of Poland’s experience with shaping it’s judiciary is reflective of its highly fraught experience under the Soviet regime. Many of the older judges are perceived as vestiges of communist and anti-Polish sentiment, and thus PiS and it’s exercise of judicial control may be interpreted as an attempt to strike a delicate balance between maintaining a truly Polish identity, while simultaneously integrating into a wider European identity. However, this balance is becoming increasingly terse, and there is growing conversation over the potential for a forced Polish exit from the European Union. If PiS continues to hold power in Poland with the same total disregard for the conventions and expectations of the European Union, the animosity between these two bodies may grow to a point where Poland may be forced to leave, or else make the decision to hold a referendum as was the case in the United Kingdom.