Discussions on rule of law crisis in Poland

The crisis that has been affecting the rule of law in Poland since 2015 not only affects the national human rights system but also leads to the weakening of Poland’s international position. This was a key conclusion of a debate attended by representatives of the Warsaw Regional Bar Association and the Helsinki Foundation for Human Rights, which was organised at German Marshall Fund in Washington, D.C.

Participation in the GMF debate was one of the items on the agenda of the US visit of members of the Regional Bar Association and HFHR, who were invited by the American Bar Association and Human Rights First. During the visit, Polish lawyers met with representatives of the US Senate and House of Representatives, US Department of State and non-governmental organisations.

Threats to rule of law

Discussions focused on, among other things, different aspects of the crisis that has been affecting the rule of law in Poland since 2015. “Adoption of subsequent laws governing the operations of the Constitutional Tribunal and the taking up of judicial offices by persons appointed to serve as constitutional judges without a valid legal basis has substantially infringed the independence and negatively affected the effectiveness of the Constitutional Tribunal, thereby affecting the entire system of constitutional review”, says Mikołaj Pietrzak, an attorney and Dean of the Regional Bar Association in Warsaw.

According to experts, the ongoing crisis of the rule of law escalated upon the adoption of new laws on the courts system. The lawyers noted that an amendment to the Courts Act, which authorised the Minister of Justice to dismiss the presidents and deputy presidents of courts, and also pointed to an amendment to the National Judiciary Council Act that modified the procedure for the selection of The Council’s members, strengthening the political supervision over appointments of new judges.

“An extension of political influence over the operations of courts may lead to violations of the right to a fair trial, which may undermine the entire human rights system”, says Maciej Nowicki, Vice President of the Helsinki Foundation for Human Rights. By taking unconstitutional actions that threaten the independence of courts and the constitutional system of division of powers, Poland nullifies its achievements as a leader of democratic transition in Europe” Mr Nowicki adds.

Lowered standards of human rights protection

During the discussion, experts noted other threats to human rights such as the freedom of assembly, right to privacy, freedom of action of non-governmental organisations or freedom of speech. A significant emphasis was put on the last aspect because of the recently adopted amendment to the National Remembrance Institute Act.

The Helsinki Foundation has noted in an opinion that new regulations that establish criminal responsibility for accusing publicly and against the facts, the Polish nation, or the Polish state, of being responsible or complicit in the Nazi crimes or other crimes against humanity as well as civil liability for infringements of Poland’s good name, may lead to unreasonable interferences with the freedom of expression.

International response

The crisis that has been affecting the rule of law in Poland since 2015 has been met with a response of all independent human rights institutions, including UN Human Rights Committee, Venice Commission, Parliamentary Assembly of the Council of Europe, Council of Europe Commissioner for Human Rights, and European Commission. The matter was also commented by representatives of US Government.

“Regrettably, Poland has not yet implemented any of the recommendations presented by international institutions, and most notably, by the European Commission”, says Małgorzata Szuleka, lawyer and Advocacy Officer of the HFHR.

In the lawyers’ opinion, the effects of the changes to the functioning of the Constitutional Tribunal and the justice system will not only become visible in Poland but also may negatively affect Poland’s cooperation with international partners as part of the community of democratic states.

Click here to read a summary of threats to the rule of law in Poland presented by the HFHR and Warsaw Bar Association.