The Distorted Body

Ensuring the integrity of elections is a foundational concern for any democratic state. Yet, it faces a grave challenge in Poland, emanating from the Chamber of Extraordinary Control and Public Affairs of the Supreme Court. Created in 2018 following controversial changes to the national judicial system and tasked with reviewing the validity of parliamentary elections, the Chamber fails to meet the essential criteria of an independent court. Confirmed by rulings of the European Court of Human Rights and the Supreme Court itself, the Chamber’s flawed origin and staffing, dependent on political influence and in departure from established rules of law, undermines its capacity to authenticate the fairness and legitimacy of elections. This echoes beyond Poland’s borders as well, since the Chamber’s defective status fails to meet European standards of effective judicial protection, thus raising concerns in the context of European integration. The following analysis delves into the Chamber’s position, examines its role in validating electoral process and its impact on the democratic legitimacy of Poland’s Parliament.

The Supreme Court’s Role in Validating Electoral Results

Parliamentary elections are democracy’s most essential ingredient, the primary means of exercising a nation’s sovereignty. It shapes the personal composition of parliament, provides it with a mandate to operate, and legitimizes its actions as well as those of the government that parliament sets up. Because elections are an indispensable institution of democratic life, they must both be fair and embody ‘to the greatest extent possible, […] the will of the Nation’ (judgment of the Constitutional Tribunal of 20 July 2011, case K 9/11, section III.2). In a functioning democracy, their integrity should be secured by adequate safeguards, protecting the conduct and outcome of elections from manipulation and unlawful interference.

The 1997 Constitution of Poland permits the Supreme Court to judicially review the validity of parliamentary elections through two separate avenues (Article 101 of the Constitution). One avenue takes the form of voters’ protests against the validity of elections. Designed to protect the subjective right of an individual voter, they are examined on request, and allow challenging both the entire election results as well as election of individual members of the Sejm and the Senate. However, they are limited in scope and require the occurrence of either (i) criminal offenses against elections, that have an impact on voting or determination of the results; or (ii) breaches of the Election Code that have an impact on the outcome of elections and relate to voting or determination of the results (cf. Articles 241 and 258 in conjunction with Article 82(1) of the Election Code of 5 January 2011).

By contrast, the general determination of the validity of the elections is of a systemic nature. It is carried out ex officio, has a broader scope, and only permits challenging the entire election. It occurs independently of whether any election protests have actually been filed. The Supreme Court, on the basis of the election report submitted by the State Election Commission and the opinions issued upon examination of protests, eventually decides on the validity of the election.

Exclusive jurisdiction to decide in both avenues is entrusted to the Supreme Court, and within it to the Chamber of Extraordinary Control and Public Affairs. However, the Chamber is incapable of carrying out genuine judicial review since it is not an ‘independent and impartial court established by law’, as confirmed both by ECtHR and by the Supreme Court itself on 23 January 2020. Created for political reasons in 2018 in a wave of changes in the judicial system in Poland, packed with people supported by the ruling majority, the Chamber cannot conduct fair, impartial examination of the elections’ integrity. A body that itself was appointed contrary to the law, in an inherently deficient procedure, is incapable of ensuring the fair exercise of judicial functions and authenticate the electoral process and lend legitimacy to its outcome.

A European problem

Poland’s supranational integration into the European Union, and accession to the ECHR renders the threat to democracy and the rule of law that emanate from the Chamber not just a matter of domestic concern.

The ECtHR considers democracy a fundamental element of the ‘European public order’ [para. 67], while the right to free elections is crucial to an effective and meaningful democracy governed by the rule of law [para. 58]. Accordingly, the national system should be adequately safeguarded against arbitrariness in the electoral process [para. 63], and provide for an effective examination of individual complaints and appeals in matters concerning electoral rights [para. 81]. This is key to preserve the integrity of the election and the electorate’s confidence in Parliament, guaranteeing its legitimacy and enabling it to act without its composition being contested [para. 87].

Union law may apply to national parliamentary elections only when a link between the national situation (the elections) and that law is established. While Article 2 TEU embraces the value of democracy, which all acceding member states are obliged to respect (Article 49 TEU), there is so far little case law on it by the CJEU.

The Commission’s reasoning in the recently initiated infringement procedure against the so-called lex Tusk provides helpful guidance on such a link. In the context of the upcoming parliamentary elections, the ruling majority created a Committee for Investigating Russian Influence, designed to target the opposition leader, Donald Tusk. Invoking, inter alia, the principle of democracy and Articles 2 and 10 TEU, the Commission held that such a committee could unduly interfere in the democratic process. The committee’s activities, including investigations and public hearings, risk gravely damaging the reputation of candidates in elections, and the committee’s ruling that a person acted under Russian influence, is likely to curtail the effectiveness of political rights of those democratically elected.

In its grounds, the Commission cited Article 10(1) TEU, founding the functioning of the Union on representative democracy, which gives concrete form to the value of democracy (C-502/19 Junqueras Vies, para. 63). In line with Article 10(2) TEU, Member States are represented in the European Council by their heads of state or government and in the Council by their governments. Yet, those very heads and the governments are also democratically accountable to their national parliaments or citizens. The link between national elections and the principle of democracy at the EU level would therefore lie in the nationally elected representatives designating the authorities, which then make and legitimize decisions at EU level. The CJEU signalled this in Case C-157/21 Poland v. Council by linking, in the context of democratic values of Article 2 TEU, the voting in the Council of the EU with the need to ensure that the Council’s decisions be sufficiently representative of both the Member States and the EU’s population.

If such a linkage is established, other key mechanisms of Union law apply, most notably, the non-regression principle espoused in the C-896/19 Repubblika ruling (para. 63-64), which we believe could also come to apply to the value of democracy and not only to the value of the rule of law.

Furthermore, in the context of judicial nature of the review of electoral process, there is an important role for the Union’s principle of effective judicial protection and the Court’s jurisprudence concretizing the value of the rule of law under Article 2 TEU and setting standards of judicial independence under Article 19(1)(2) TEU and Article 47 of the EU Charter of Fundamental Rights. Under Article 52(3) of the Charter, these standards are directly linked to the standard set by the ECtHR’s case law.

Neither Independent, nor Impartial

In Dolińska-Ficek and Ozimek, the ECtHR ruled that the Chamber was not an ‘independent and impartial court established by law’. The Court found a manifest breach of domestic law, as the appointment procedure for judges to the Chamber involved the National Council of the Judiciary (NCJ), which was found to lack the necessary independence from the legislative and executive powers following its political co-optation. Thus, while the selection was previously made by judges themselves, in 2017 it was entrusted to the Sejm. This not only violated existing constitutional practice but conferred the ruling majority to nominate 23 of the 25 NCJ’s members. Furthermore, the President of the Republic manifestly violated the law when appointing judges to the Chamber in deliberate disregard of a binding Supreme Administrative Court order suspending the execution of the NCJ’s resolution recommending these candidates.

In the resolution of 23 January 2020, the Polish Supreme Court – in its legitimate composition – reached the same conclusion. Acting in implementation of the CJEU judgment in A.K. and Others, which indicated the criteria and methodology for assessing judicial independence, the Court held that a court formation is unduly appointed and unlawful when it includes a person appointed to the Supreme Court on recommendation of the National Council of the Judiciary as re-constituted in 2018. In particular, it was clear from that resolution that the judges sitting in the Chamber of the Extraordinary Control and Public Affairs cannot be recognised as impartial and independent. Even more so, all rulings issued by them after 20 January 2020 were to be considered as voidable in the Polish legal system.

The CJEU took a similar direction in C-487/19 W.Ż.. Despite being an interpretative preliminary ruling, it opened the door for the Supreme Court to recognize that the Chamber’s members do not meet the requirements of Article 19 TEU and Article 47 EUCFR. Moreover, the CJEU stated that judgments of such judges cannot be considered as binding for other formations of the Supreme Court [para. 161]. Yet, it was eventually left to the Supreme Court itself to decide this issue. While the files of this case were returned to the Supreme Court following the preliminary ruling in 2021, as of today, no final ruling has been issued in the case. However, the panel who should decide that case has been changed and is now composed of judges having a comparable problem with their nomination procedure as described in Dolińska-Ficek and Ozimek.

Clear, conclusive rulings of the Supreme Court and the ECtHR, show that the Chamber neither meets domestic nor European requirements of an independent and impartial court established by law, thus failing to fulfill the basic constitutional premise for reviewing the election validity, having it done by a ‘court’. Hence, its resolution on the matter will not add any legitimacy to the electoral process.

A Bad Track Record

The Chamber’s existing practice in assessing the validity of elections itself substantiates doubts about its ability to maintain integrity and thoroughness in the assessment. In a resolution of 3 August 2020, the Chamber confirmed the validity of the 2020 presidential election, which brought Andrzej Duda to a second term, despite multiple violations of the Constitution in its ordering, preparation and conduct.

First, the presidential election were held at a time that did not comply with Constitution’s rules. Originally ordered for 10 May 2020, the elections were ultimately held on 28 June (first round) and 12 July (second round). While the original date was determined in line with the Constitution, requiring the election date to be set for a day between 75 and 100 days before the end of the ongoing term (this was 6 August 2020), the setting of the new election date for 28 June was made without a legal basis, and was outside the constitutionally prescribed time limits.

Second, the rules for the preparation and conduct of presidential elections were amended several times during the electoral process, despite there being a constitutional ban on major changes to the electoral law at least six months before the election (cf. case 31/06, judgment of Constitutional Tribunal of 3 November 2006, Section III.6.5; case Kp 3/09, judgment of Constitutional Tribunal of 28 October 2009, Section III.2.3).The ruling majority changed the voting method (traditional v. correspondent voting), and switched the authorities responsible for preparing elections, setting the template of ballots and administering their printing (the State Electoral Commission ­– an independent  body v. the Minister of State Assets – a member of the government).

Third, electoral laws were amended in an emergency situation and for ad hoc political purposes, despite an express constitutional prohibition thereof (cf. case K 9/11, judgment of Constitutional Tribunal of 20 July 2011, Section III.2). The election was to be held during the ongoing Covid-19 pandemic, and because of it, the government introduced first a ‘state of epidemic emergency’ and then imposed a ‘state of epidemics’ – both unknown to the Constitution. Yet, the circumstances and effects of their introduction resulted in restrictions on the rights and freedoms of individuals. While this made them functionally identical to the ‘state of emergency’ provided for in the Constitution (Article 228 et seq.), this provision specifically precludes amending the electoral laws and holding elections. Thus, by imposing extra-constitutional ‘epidemic states’, the ruling majority circumvented the Constitution. They deliberately avoided the emergency regime established therein, although – by introducing the ‘epidemic states’ – at the same time they did admit that ‘ordinary constitutional measures are insufficient’, which was indeed the constitutional premise to introduce a ‘state of emergency’. It was clear, the supreme value was to hold elections at all costs to consolidate their own power.

Fourth, in considering the individual election protests, which were filed after the 2020 elections in the number of 5847, the Chamber was particularly restrictive in assessing the formal admissibility and substantive legitimacy of many of the applications. Approximately 88% of protests were left without consideration, including, those concerning financing the election campaign, the way candidates were portrayed in the public media, the course of legislative process, and the compliance of legislation and actions of state bodies with the Constitution (cf. Resolution of the Supreme Court of 3 August 2020, p. 5). However, the Chamber itself admitted the differentiation of candidates as to the length of the election campaign and the limits on election expenditure, the unequal access of candidates to the mass media, or the violation of standards for a neutral approach by public authorities to the election campaign [p. 11]. Nonetheless, without any in-depth analysis or argumentation, thus indeed arbitrarily, the Chamber concluded that these circumstances did not restrict the free choice of candidates and did not affect the validity of the elections [p. 11].

The Chamber’s Shattered Legitimacy

The last elections were ordered at an unconstitutional date, conducted on the basis of unconstitutional legislation adopted in circumvention of the Constitution, with unequal treatment of candidates, and overwhelming support of the government-controlled media for the candidate of the ruling party. The elections therefore manifestly did not meet the required standard of fairness and thus could not confer proper democratic legitimacy on the person so elected. Nonetheless, the Chamber confirmed their validity, putting again into power the very person who had previously appointed the Chamber’s members in an unconstitutional manner, in manifest breach of domestic law, the EU law and ECHR. It did so while the presidential challenger, Rafał Trzaskowski, announced a review of the defective judicial appointments to the Supreme Court. The Chamber’s members, therefore, had a personal interest in the continuation of the presidency of the person who had appointed them and guaranteed their continued tenure as Supreme Court judges. This circumstance alone undermined their impartiality in reviewing the validity of elections and was a legitimate ground for recusing them from ruling on the issue.

The Chamber of Extraordinary Control and Public Affairs is a defective body that does not operate independently and impartially. It has already authenticated elections run in clear violation of the Constitution and electoral rules. Its existence and operation both mirror and the contribute to Poland’s distorted democracy and shattered rule of law.