The Law to Take Out Tusk
On 29 May, President Duda has peremptorily signed this law into force which sets up a new body: a commission to track Russian influence on Polish public officials and other public figures which may have resulted in the undermining of Polish security. This monster of a law has so many defects, pathological features and outright conflicts with the rule of law, even at its very basis, that it is hard to know where to start.
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Media Pluralism in KRRiT-ical Condition
In April 2023, the Polish National Broadcasting Council, the so-called KRRiT, imposed a high fine on an indipendent media outlet. It was not the first fine of this kind to independent media organisations. The growing number of KRRiT decisions targeting independent media in Poland is the result of the political nature of the procedure for appointing members of the KRRiT and the broad, unclear legal basis for imposing fines. Since 2005, the decisive voice in the composition of the KRRiT was that of the ruling political majority. This blogpost analyzes and criticizes the vague legal framework for KRRiT and the institution's apparent political capture in recent years.
Continue reading >>In Jerusalem my Heart wanted to Scream out: “I am Polin, too” …
I went to Israel at a moment’s notice to share the lessons and cautionary tales of anti-constitutional capture in Poland and to explain the mechanics behind systemic and legalistic dismantling of the liberal foundations of the legal order. However, during my stay in Israel, I realized that as much the Israelis wanted to learn from me, they might as well teach Poles crucial lessons, not less these of civic engagement and mobilization.
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Frozen
After years of inaction, the European Commission and Council jointly acted to freeze EU funds totaling more than €28.7 billion for Hungary and more than €110 billion for Poland at the end of 2022, citing rule-of-law violations. Surprisingly, the decisions were taken not just (or even primarily) using the new Conditionality Regulation designed for that purpose. Instead, they used a variety of other legal tools to which rule-of-law conditionality was attached. It remains somewhat mysterious, however, precisely which funds and what proportion of those funds have been suspended, and how those suspensions have been legally justified. This post, a shorter version of a SIEPS paper that will be published soon, describes what we know about the complex set of funding suspensions intended to make EU Member States pay for their rule-of-law violations.
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7 Years Later: Poland as a Legal Black Hole
The EU is faced with a Member State where all of its top courts are now unlawfully composed; where every single judicial appointment procedure since 2018 is inherently defective due to the involvement of an unconstitutional body; and where core EU and ECHR requirements relating to effective judicial protection and the fundamental right to an independent court established by law have been held “unconstitutional” in 2021 and 2022 by the body masquerading as Poland’s Constitutional Tribunal.
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Hostile Constitutional Interpretation
What to do with the façade institution that was once known as the Polish Constitutional Court in a way that would respect the Constitution? A recent and important proposal has argued that the judges who were legally elected by the current Parliament though they have supported the politicization of justice should enjoy the same right to retire as their legal predecessors. We have serious doubts as to the long-term desirability of such a solution. We need a theory that explains why also these lawfully elected judges should be let go as a result of their blatantly unconstitutional adjudication, and why the entire unconstitutional body should be extinguished, rather than simply be tinkered with here and there.
Continue reading >>A fragmented response to media freedom at risk in the Union
The Polish and Hungarian governments have famously parted ways over responses to the Russo-Ukraine war. However, internally, both continue to rely on similar structural changes in the media environment that help them target voters and undermine elections fairness. The EU’s response to the media freedom and pluralism crisis in Hungary and Poland has been more restrained and also qualitatively different from its answer to the judicial independence crisis or threats to academic freedoms and minority rights.
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#DefendingTheDefenders – Episode 1: Poland
We Need to Talk About the Rule of Law is back for a second season that focuses on the impact of rule of law erosions on attorneys. In the first episode, we talk to MIKOŁAJ PIETRZAK. He is an attorney and the Dean of the Warsaw Bar Association, which is the oldest professional legal association in Poland and the administrative association of attorneys in Warsaw.
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A Chamber of Certain Liability
The establishment of the Chamber of Professional Liability is the latest installment in the saga, in which the Polish Law & Justice government tries to ‘reform’ the Supreme Court. It shows, in a nutshell, all the major issues of the rule of law crisis in Poland: conflict with the European Commission and loss of EU funds; apparent concessions and leaving old issues intact; split in the Polish legal community between lawful and unlawful judges. All the elements of drama are here and it all begins with the Disciplinary Chamber of the Supreme Court.
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1.3 Billionen Euro Kriegsreparationen an Polen
Die polnische Regierung fordert Reparationen von Deutschland zur Wiedergutmachung der Kriegsschäden des Zweiten Weltkriegs. Mal wieder. Doch dieses Mal scheint es der polnischen Regierung ernster als bisher. Ausdruck davon ist die Formalisierung der Forderungen in einer diplomatischen Note, die dieser Tage das deutsche Außenministerium erreichen soll. Das erneute Aufbringen der Thematik beruht auch auf einem dreibändigen Gutachten, in welchem die Schäden auf €1,352,483 Millionen Euro taxiert werden.
Continue reading >>Defending the Judiciary
The strategies of judicial resistance employed by the Polish judiciary after 2015 are diverse and complementary. They respond to changing and intensifying the pressure of political power on the judiciary. They are a consequence of the judgments of the CJEU and the ECHR concerning the administration of justice in Poland.
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Pandering to peoples’ emotions is no solution
Poland’s next parliamentary elections will be held in autumn 2023. Polish academics are currently discussing how to repair the country's judiciary if the PiS government gets voted out of office. In this blogpost, Marcin Matczak offers a personal account of the on-going debate and advocates for a pragmatic rather than an emotional response.
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In einer Handvoll Staub
Ukraine, Frankreich, die EU und die Begrünung der Ödnis
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In a Handful of Dust
Ukraine, France, the EU, and the Revegetation of the Wasteland
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No Longer Feeling the Energy
On 25 August 2022, the government of Poland surprised all when it sent a previously approved (but unannounced) bill on the termination of the Energy Charter Treaty (ECT) to the State’s lower chamber. The ECT is the biggest multilateral investment treaty in the world and the only one to exclusively regulate cooperation in the energy sector.
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The “Year of Historical Memory” and Mnemonic Constitutionalism in Belarus
On 1st of September 2022, the academic year in all Belarusian schools started with an atypical lesson, on “historic memory” – led in Minsk by none other than the country’s “President” himself, Aliaksandr Łukašenka. There is a constitutional dimension to historical memory in Belarus, which is better grasped through the looking glass of mnemonic constitutionalism.
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Sorge über den Fluss
Die Sorge geht über den Fluss. In einem Bändchen mit diesem Titel greift der Philosoph Hans Blumenberg die Fabel Cura des römischen Dichters Gaius Julius Hyginus auf, die vor ihm schon Herder, Goethe und Heidegger beschäftigt hatte. In der antiken Fabel formt die allegorische Figur der Sorge beim Überqueren eines Flusses aus vorgefundenem Lehm den Menschen und streitet dann mit Jupiter und Tellus über den Namen des von der Sorge erschaffenen Wesens.
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Klagen können
Sollte der Job der Hüterin der Verträge vergesellschaftet werden?
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Kein Geld ohne Reform
Polen stehen rund 35,4 Mrd. Euro aus dem im Dezember vom Europäischen Rat beschlossenen Nachcorona-Sonderbudget („Next Generation“) zu. Bisher sind Zahlungen an Polen nicht geflossen. Die EU-Kommission hatte am 1. Juni eine Reihe von Reformauflagen für das polnische Justizsystem als Bedingungen für die Freigabe des Aufbau- und Resilienzplans beschlossen. Zwar hat die polnische Regierung seitdem einige Reformen veranlasst, die europarechtlichen Voraussetzungen für die Auszahlung von Geldern an Polen aus dem Aufbaufonds der EU sind aber weiterhin nicht gegeben.
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Testing judicial independence
Despite the recent abolition of the Disciplinary Chamber, the crisis in the Polish judiciary is still far from resolved. The main reason for this is that the status of judges appointed at the request of the National Council of the Judiciary have not yet been addressed. As a result of the lack of a systemic solution, the problem of irregular judicial appointments must be dealt with by courts in concrete cases. For that purpose, the Supreme Court developed a test aimed at determination of the impact of irregularities in the appointment of judges on the legality of the composition of the court. The most recent amendment to the Act on the Supreme Court introduced a new test and raises serious concerns.
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Extinguishing the Court
The three quasi-judges in the Constitutional Tribunal and their participation in its adjudication are like a spoonful of tar in a barrel of honey: they contaminate the whole of the Tribunal. That is why the whole of the Constitutional Tribunal should be replaced in the event of a electoral victory of the democratic opposition in 2023.
Continue reading >>Holidays with smog
The Polish energy policy is seeing further controversies. The Minister of Climate and the Environment, Anna Moskwa, allowed poor quality coal to be sold for 60 days. This means that, up to 28 August, households are able to buy bituminous coal with a higher content of sulphur and mercury, as well as harmful mining waste, e.g. mining sludge. This decision is already causing considerable controversy not only among climate activists, but also among voivodship (local) authorities that are implementing so-called anti-smog resolutions.
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The Selective Nature of a pan-European Willkommenskultur
Four months into Russia’s war on Ukraine, there has been a tremendous show of support for Ukrainians fleeing violence and the atrocities of war – in Europe and elsewhere in the world. As is well-known, European states have hammered out pragmatic administrative solutions to accommodate large numbers of incoming person, going to great lengths to provide for beneficial welfare arrangements. Against this backdrop, it may not be unreasonable to present the crisis in Ukraine as a tipping point for humanitarian protection more generally.
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Governing the Memory of the Present
Putin’s Russia is a global champion of memory laws that fabricate the state’s perennial innocence and glory and make it a criminal offense to diverge from the state-sanctioned historical narratives. The state’s propaganda has also promoted symbols that convey support for or condoning of the Russia’s war, such as the “Z”, “V”, and St. George's ribbon. The emergence of these symbols in the public sphere has put militant democracy provisions existing in many European legal orders into the spotlight, but also propelled lawmakers in some states to adopt new provisions prohibiting the use of such symbols. We discuss the reaction mechanism in Lithuania, Germany, and Poland.
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Pregnancy Registry in Poland
In Poland and beyond, a media storm broke out in the beginning of June because of the so-called "pregnancy registry." The problem at the heart of the media storm is that if a woman decides to terminate her pregnancy, for example, abroad, it will be known because of the system's pregnancy data and prenatal test results. Nevertheless, it is difficult to judge this registry unequivocally, especially after hearing the arguments of both sides.
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Covering Up and Rewarding the Destruction of the Rule of Law One Milestone at a Time
Once upon a time, when still a candidate for President of the European Commission, Ursula von der Leyen solemnly declared: “there can be no compromise when it comes to respecting the Rule of Law. There never will be.” As it is now clear, this was just Orwellian doublespeak.
Continue reading >>Censuring von der Leyen’s Capitulation on the Rule of Law
The spectre of a motion of censure is looming over the von der Leyen Commission. While this rather extraordinary, perhaps desperate, measure appears unlikely to attain the required number of signatures to be tabled – and even less likely to be adopted by the European Parliament –, this initiative deserves some scrutiny. Perhaps even some praise by those who still believe in the primacy of law over power.
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The European Commission Cedes its Crucial Leverage vis-à-vis the Rule of Law in Poland
The worst thing about the European Commission’s decision of 1 June 2022 to approve Poland’s EUR 36 billion national recovery plan, despite this country’s very meek (to put it mildly) assurances about improvements to its rule-of-law situation, is not even its substance, bad though that is. Worse still is the sequencing.
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Die Kapitulation
Im Ringen um die Einhaltung eingegangener Verpflichtungen und im Kampf für den Primat des Rechts vor der Macht ist die Entscheidung der Europäischen Kommission vom 1. Juni 2022 eine Niederlage. Dass hier etwas Problematisches passiert ist, indiziert der ungewöhnliche Vorgang, dass fünf Kommissare – und nicht die Unwichtigsten – sich im Kollegium gegen den Beschlussentwurf ausgesprochen haben.
Continue reading >>Just a Feint?
A running joke in the pro-democratic military analyst community is about ridiculing the messages of pro-Russian experts who are pretending that the Russian defeat in the battle of Kyiv was "just a feint". I am afraid that the European Commission just walked into a similar strategic blunder with its deal with the Polish government on the recovery fund and the Supreme Court.
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Drifting Case-law on Judicial Independence
In a preliminary ruling of 29 March 2022, in case C-132/20 Getin Noble Bank, the CJEU answered questions on judicial independence of judges appointed under an undemocratic regime and of judges appointed before 2018 in an allegedly flawed process. Taking a highly formalistic approach, the Court seeks to preserve judicial dialogue between itself and the national judges – at the expense of the rule of law and judicial independence.
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Keeping the Past and the Present Apart
The mere fact that a judge was appointed for the first time under undemocratic conditions does not automatically determine that the court in which that judge adjudicates lacks the necessary independence under EU law. The CJEU has answered to this effect a question of Mr. Kamil Zaradkiewicz, appointed to Poland's Supreme Court in 2018 on recommendation of the new government-controlled National Council of Judiciary and thus lacking independence himself. Importantly, the CJEU emphasized that the referring court did not submit any evidence that may rise legitimate and serious doubts, in the minds of individuals, over independence and impartiality of the particular judge. With this decision, the Court refused to be drawn into the inner-Polish dispute about decommunization, and reinforced its jurisprudence on judicial independence standards in the EU.
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Instead of an editorial
What has happened over the holidays on Verfassungsblog
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Can Putin Be Tried in Poland?
The Polish Minister of Justice decided to initiate proceedings against Russia for its military attack on Ukraine and possible war crimes and crimes against humanity. This may come as a surprise, especially after the prosecutor at the ICC has already started to act in this matter. But the initiation of proceedings in Poland is mainly symbolic and won't conflict with international investigations. An EU Member State investigating specific individuals for their involvement in a war crime would be a powerful signal. At the same time, the scale and specificity of the crimes in question go beyond the possibilities of a single country and require extensive condemnation and the participation of the international community.
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Elektronische Überwachung in Zeiten einer demokratischen Krise
Die polnische Erfahrung zeigt, wie eine entschlossene populistische Regierung mit denen in einer Demokratie zur Verfügung stehenden Mitteln in relativ kurzer Zeit die zur Kontrolle der staatlichen Überwachungstätigkeit geschaffenen rechtlichen Garantien aushöhlen kann. Die notwendige Geheimhaltung, die die Arbeit der Sicherheitsdienste umgibt, darf keine Gelegenheit zum Missbrauch von Befugnissen schaffen. Eine Überwachung ohne angemessene Kontrolle schwächt die Demokratie, führt zu einer Verzerrung ihrer Grundsätze und bedroht letztlich, wie der EGMR gewarnt hat, ihre Existenz selbst.
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Electronic Surveillance in a Time of Democratic Crisis
The Polish experience demonstrates how a determined populist government, using the tools available in a democracy, can in a relatively short space of time erode legal safeguards established to control state surveillance activity. The understandable secrecy surrounding the work of the security services must not create an opportunity for the abuse of powers. Surveillance without adequate control weakens democracy, leads to a distortion of its principles, and ultimately, as the ECtHR has warned, threatens its very existence.
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We at War
It must remain our goal, says the Federal Chancellor, that Russia does not win this war.
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The Dangers of Freezing and Seizing
The Polish government argues that the only way to effectively seize the assets of Russian oligarchs is to amend the Polish Constitution, since it is currently impossible to do so without obtaining a final judgment of a court of law. Although the official goal may seem to coincide with the actions undertaken by the EU Council, the measures planned by the Polish governing powers should not be accepted without a second glance at their possible legal dangers.
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Zwei plus zwei ist vier
Zeit, mal wieder Richter Igor Tuleya das Wort zu erteilen
Continue reading >>Two Plus Two Equals Four
Time to give once again the floor to judge Igor Tuleya
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Statement by Retired Judges of the Constitutional Tribunal on the the Constitutional Tribunal Judgment in case K 7/21
Retired judges of the Constitutional Tribunal state that the judgment in question is another scandalous example of jurisprudence violating the Constitution. Challenging Article 6 of the ECHR for the second time in a short period of time (previously in the judgment of 24.11.2021, K 6/21) is a drastic jurisprudential excess.
Continue reading >>A Tale of Two Borders
Poland has an over 500 km long border with Ukraine and – right next to it – an over 400 km long border with Belarus. At the border with Ukraine, tens of thousands of persons are crossing each day, and the authorities are making a huge effort to make the crossing smooth. At the border with Ukraine, tens of thousands of persons are crossing each day, and the authorities are making a huge effort to make the crossing smooth. At the border with Belarus, people who are trying to cross into Poland are still forced to wander in minus temperatures through thick woods.
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“The Ever Closer Union among the Peoples of Europe” in Times of War
The war in Ukraine has brought a moment of the constitutional reckoning and the ultimate test of belonging for the Europeans. The ill-fated politics of appeasement and dialoguing with a criminal has come crushing down. Finally, Europe seems to take a more strategic and long-term view of its own politics at least when it comes to common foreign policy and defense. A true re-appraisal and reinvigoration of European ideals will however not be complete if the Union keeps looking the other way, dithering, procrastinating when its own axiological foundations are under attack by one of its own member states.
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The Rule of Law in a Time of Emotions
The aggression against Ukraine is brazen, ruthless and shameless. Images of women and children at border crossings, shelters and subway stations filled with civilians evoke very strong emotions, almost crowding out everything else. And yet the ongoing aggression is defined by another adjective: "lawless". There is a link between lawlessness and violence, between brutality and disrespect for the law as such. This is why, even in times like these, we must continue talk about the Polish rule of law crisis if Poland wants to be a credible international actor.
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Not looking up
It now seems that after the ruling is before the ruling. The Commission is intent on continuing with its wait-and-see approach, a situation which Hungarian MEP Katalin Cseh compared to the Netflix movie “Don’t look up”, in which the President of the United States decides to ignore the huge comet approaching the earth. While in the movie the comet finally destroys the planet, the European Parliament, however, is determined not to let it come to that. It has made clear that it will not tolerate this policy of looking the other way and has taken up arms.
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