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Business, Judicial Independence and the Rule of Law

Helsinki Foundation for Human Rights published the report Poland: Business, Judicial Independence and the Rule of Law, prepared in cooperation with the American Bar Association, the main objective of which was to highlight the impact of legal and policy changes introduced by the governing majority since its coming to power in 2015 on conducting business in Poland. The report serves as a valuable addition to the existing body of work on the threats to the independence of the Polish judiciary and the rule of law crisis in Poland.

The report indicates that by exposing certain bodies, such as the Constitutional Tribunal, the Supreme Court, the National Council of the Judiciary and the prosecution, to greater political influence, as well as by adopting certain laws (e.g. amendments to forfeiture of assets), the governing majority caused a number of threats to business and foreign investment in Poland. These include, among others, the risk of issuing politically-motivated decisions in civil or commercial cases, the lack of legal certainty of rulings delivered by judges nominated by the present National Council of the Judiciary, or the occurrence of politically-influenced criminal investigations against businesspersons. In the last five years, there was also a significant deterioration in judicial effectiveness in Poland: according to the Index of Economic Freedom, it has dropped from 58 points in 2017 to 42.8 points in 2020.

Judicial independence is paramount to the rule of law in any democratic society and a crucial element for economic growth and stable development. Since the report focuses on the intersection of judicial independence and business security and freedom, it makes it an important read for any individual or business currently operating in Poland or considering investing in the country.

Elise Groulx Diggs, Esq.—an international lawyer and mediator, comments in the foreword of the report:

Poland has been an economic European Union success story, with impressive economic growth, increased wages and record low unemployment over the past few decades. However, recent concerns about a lack of respect for human rights and the rule of law, including systematic efforts to restrict and undermine the independence of the judiciary, under the current government represent a real threat to the business environment in Poland, including direct investment by foreign companies.

Authors of the report—Małgorzata Szuleka, Maciej Kalisz, and Kristie Bluett jointly conclude:

To foster a more secure, business- and investment-friendly environment in the country, the government needs to undo some of the recent legislative reforms that have created legal uncertainty of court decisions at all levels, political influence in the prosecutor’s office and over judicial appointments, greater exposure for businesspersons and enterprises under criminal law, and an overburdened and backlogged court system.

Download Report:

• Business, Judicial Independence and the Rule of Law

Authors of the report: Małgorzata Szuleka, Maciej Kalisz, Kristie Bluett
Foreword: Elise Groulx Diggs, Esq.
Helsinki Foundation for Human Rights, February 2021