11 February 2025
Beyond Formal Legality
The Venice Commission’s position on Poland’s judicial reforms presents a paradox: it warns that measures to restore the rule of law could themselves violate it – even though the rule of law has already been undermined. To solve this paradox, I propose two conceptual clarifications. The first one applies distinction between violating and departing from formal legality. The second one recognizes that judges unconstitutionally appointed under an illiberal regime cannot be acknowledged as legitimate judges in the constitutional sense. Continue reading >>
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15 January 2025
The Branch That Finally Snapped
The story goes: a Polish politician, after allegedly committing a crime, leaves Poland and settles in Hungary. While historically not uncommon, the act of Hungary granting “asylum” to Marcin Romanowski generates crucial legal questions regarding the EU’s legal order. More specifically, what kind of asylum is at play here, whether this act was lawful from the perspective of the EU law, and what impact it has on the Union’s legal system. Continue reading >>19 December 2024
Lay Judges in Common Courts
Lay judges in Poland, who play a crucial role in enhancing civic participation in the judiciary, have seen their role marginalized over time due to systemic changes and professional judges’ attitudes. Lay-judges do not feel adequately appreciated, do not see their function as a source of pride. Despite being undervalued and facing dwindling interest from citizens, revitalizing their participation through legislative reforms and a fresh narrative could strengthen public trust and legitimacy in the justice system. Continue reading >>
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19 December 2024
Schrödinger’s Judges
What happens when judges are both legitimate and illegitimate at the same time? In post-2023 Poland, tension arises between ‘old judges’ (pre-2018), accusing ‘neo-judges’ of ethical compromise, and the new government, which aims to maintain judicial continuity. As a result, neo-judges find themselves in a state akin to Schrödinger's cat, their legitimacy simultaneously affirmed and denied. This paradox encapsulates the broader struggle over judicial authority and political influence in the country. Continue reading >>
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18 December 2024
Restoring the Rule of Law
Poland has become a real-time laboratory of rule of law restoration. The new government is faced with the fundamental question of how to tackle undemocratic reforms with legitimate, democratic measures. Avoiding obstruction by the affiliates of the outgoing regime and suppressing the desire for retribution by the injured parties presents the biggest challenge. Yet, the Polish government has a rare occasion to lead by example on how to solve the rule of law crisis not only by legal, but also political means. Continue reading >>
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18 December 2024
The Winding Road To The Mountaintop
In the Rule of Law in Poland Action Plan, the Polish government outlined its approach to restoring the rule of law in the country. It might have been a good starting point for developing the concept of restoring the rule of law. However, it remains unsatisfying that, after so many years of discussing the collapse of the rule of law, more elaborate ideas for its restoration were not put on the table, and the Action Plan lacks concrete proposals. Continue reading >>
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04 September 2024
From Zero to Hero
Poland, once a country with one of the highest numbers of Strategic Lawsuits Against Public Participation (SLAPPs), might now be an example of how to deal with them. With third sector actors experienced in helping SLAPP victims and a willing Minister of Justice, Poland may have found the recipe for success. With Poland set to take over the EU Presidency, the effective implementation of the Anti-SLAPP Dircetive could transform the country into a model of progress after years of shamefully using abusive proceedings to suppress freedom of expression among government critics. Continue reading >>
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26 June 2024
The Lighthouse of EU Law Shines on the Polish Constitutional Tribunal
Last week, legal scholars from all over the world met in Freiburg at the ConTrans conference. On the one end of the spectrum, scholars like Woijcech Sadurski advocated for a revolutionary approach, simply dismantling the current Tribunal and re-building it from scratch. On the other end stands Adam Bodnar, who stressed the importance of legality in the transition process. In my view, EU law shines a possible way ahead – it can justify disregarding the Tribunal’s decisions and empower ordinary courts to assume the Tribunal’s jurisdiction. Eventually, this would lead to a decentralised constitutional review. Continue reading >>
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19 June 2024
Up to Four Times
The Council of Europe’s requirements for transparency in the process of selecting a national judge for the European Court of Human Rights (ECtHR) should be strengthened. This is the lesson to be learned from the saga of the selection of a Polish judge, lasting now for more than three years. Poland, which has been going through a crisis of the rule of law in recent years, and the ongoing process of its restoration, may serve as an important example. Continue reading >>
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06 June 2024
Militant Public Administration
An unprecedented scandal surrounding a Polish governmental fund established to aid crime victims highlights the role of civil servants in authoritarian state capture. The revelations surrounding the Justice Fund show broad levels of bureaucratic acquiescence with shocking abuses of power, and only belated effort to document and report these abuses. The Polish case shows it is time for a democratically militant public administration – the new vision of civil service better prepared to fend off authoritarian encroachment from elected politicians. Continue reading >>
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