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Polexit? How Polish Judiciary Reform Can Lead to Exclusion from EU
22 February, 2020
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Polish President Andrzej Duda attends a press conference in Warsaw, Poland, February 3, 2020. On February 4, Duda signed updated laws allowing for the dismissal and disqualification of judges who do not recognize judicial reform from their posts, who make decisions under E.U. rules — rather than the new national law — and who publicly criticize the government's actions. Photo: EPA-EFE / RADEK PIETRUSZKA

January’s PACE session was marked by criticism of Poland for the judicial reform carried out by the ruling Law and Justice (PiS) party. The Council of Europe will now monitor the rule of law in Poland. And the European Union may impose significant sanctions on Poland or even exclude the country altogether.

At the same time, the world and Ukraine have a difficult dilemma: how, on the one hand, not to ignore Poland's problems with democracy, and, on the other, not to become the object of Russia's manipulation. The latter has long been looking for an occasion to shift the West's attention from the Kremlin's crimes to the European field.

Polish President Andrzej Duda signed the updated laws on general courts and the Supreme Court on February 4. They are part of a large-scale judicial reform that his right-wing PiS has been conducting for the fifth straight year.

These laws allow for the dismissal and disqualification of judges who do not recognize judicial reform from their posts, who make decisions under EU rules — rather than the new national law — and who publicly criticize the government's actions.

PiS politicians and pro-PiS media outlets say the country has taken another step toward renewing the communist judiciary, a "caste" that has been corrupted by judicial privileges. The laws signed by Duda are called "laws of justice."

The opposition and its supporters, however, stress that the changes are intended to silence judges who criticize PiS' previous attempts to further subordinate the judiciary to the executive. According to the opposition, it is a "law on repression" or a "law on muzzles."

READ MORE: How Poland's Polarization Led to the Murder of Gdansk Mayor

The question of the immunity and accountability of judges — which until a few years ago only interested specialists — is now a hot topic of Polish policy and is of great concern to the EU If the government does not take a few steps back, some experts believe that Warsaw could be threatened with financial sanctions and even exclusion from EU membership.

Russia, however, is keen on using Poland's problems with democracy and the tension between Warsaw and Brussels to divert the EU's attention from its own aggressive policies.

What the Government and the Opposition Are Arguing About

Judicial reform is both the longest-running and most problematic reform for the PIS government.

Things kicked off in November-December 2015, when PIS formed a single-party parliamentary majority for the first time in the history of independent Poland, and a few weeks later changed the law on the Constitutional Tribunal.

This way, they wanted to correct the mistake of their predecessors: the Civic Platform (PO) and the Polish People’s (or Peasants’) Party (PSL), who, contrary to law, had elected several judges to the Constitutional Tribunal before the end of the Sejm’s (lower house of the parliament) cadence. PiS expelled these allegedly "false" judges, but also recalled those who had been appointed lawfully and installed their own loyalists instead. In response, the Tribunal issued several judgments about the unconstitutionality of PiS's actions, but then-Prime Minister Beata Szydlo refused to publish them in the government newsletter.

The PO and other opposition parties called on their supporters to start protests, but they failed to get things off the ground properly. To cut the tension, Polish Foreign Minister Witold Waszczykowski then invited the Venice Commission to visit and establish whether the Polish judicial reform was in line with the spirit of democracy and the letter of the law.

In March 2016, the Commission prepared an assessment: the conflict over the Constitutional Tribunal "originated from the action of the previous Sejm", "both the previous and the present majorities of the Sejm have taken unconstitutional actions", and the amendments made to the legislation by PiS "endanger not only the rule of law, but also the functioning of the democratic system."

However, the position of the Council of Europe's advisory body did not prevent PIS from continuing to elect “friendly” judges and President Duda from accepting their oaths. This prompted the European Commission to contact the Council of the European Union in December 2017 to acknowledge the existence of "risks of breach of the rule of law" in Poland.

In March 2018, the European Parliament agreed with the position of the European Commission, which for the first time in the history of the EU has opened the possibility of applying sanctions to a Member State under Article 7 of the Treaty on European Union. This article allows a state that violates EU norms and values ​​to be deprived of voting rights when making decisions in the Council.

READ MORE: What Can We Expect From PiS’ Second Term in Power in Poland?

The second source of the conflict was changes to the laws on general courts and the Supreme Court. In July 2017, the Sejm voted to reduce the term of office of Supreme Court justices who have reached the age of 65, to combine the posts of Prosecutor General and Minister of Justice, and to strengthen the role of the parliamentary majority in the election of members of the National Council of the Judiciary (KRS), which has a decisive influence on the election of members of the Supreme Court and chief judges at general courts.

This time, thousands of protesters did take to the streets throughout Poland. President Duda vetoed the laws and returned them to the Sejm. But as soon as the topic disappeared from the front pages, the laws were passed with only cosmetic changes, and the president signed them.

Now in Poland, all KRS members are elected by the Sejm, i.e. by the ruling party. The Supreme Court can file complaints against Polish courts’ decisions over the last 20 years, and its disciplinary chamber has the powers to punish those disobeying.

Thus, the country has been living in a state of legal dualism in recent years: on the one hand, changes have been approved by the legislators, on the other — there are Constitutional Tribunal sentences and Supreme Court decisions. To clarify the matter, the Supreme Court referred several issues to the Court of Justice of the European Union (CJEU), which has a deciding vote in assessing similar situations in EU countries.

Сенат Польщі — верхня палата парламенту, у якій більшість має опозиція, відхилила суперечливий законопроєкт, що дозволяє звільняти суддів, які ставлять під сумнів законність судових рішень, Варшава, Польща, 17 січня 2020 року. Пізніше 23 січня Польський Сейм — нижня палата парламенту — схвалив цей законопроєкт

Poland’s Senate, the upper house of the parliament with the opposition majority, has rejected a controversial bill allowing the dismissal of judges who question the legality of court decisions, Warsaw, Poland, January 17, 2020. Later, on January 23, the Polish Sejm, the lower house of parliament, approved the bill. Photo: EPA-EFE / RAFAL GUZ

"We Won’t Have Them Telling Us ​​What System We Should Be Building"

In response to these questions, in 2018, the CJEU suspended some of the new legislation introduced by PiS, including the reduction of the term of Supreme Court judges. And on November 19, 2019 it issued a resounding sentence.

The Court of Justice acknowledged that the organization of the judiciary was within the competence of EU Member States. But in doing so, countries must abide by EU law, including the rule of law and the independence of the judiciary from the executive and legislative branches.

READ MORE: Judges From Across Europe Protest in Poland Against Controversial Judicial Reforms

The Polish opposition welcomed the verdict. On the other hand, even before the ruling was issued, PiS was hyping up its electorate with the rhetoric about foreign interference in Polish affairs:

"If the CJEU sets a precedent and allows part of the law to be suspended by a Supreme Court decision, the government will have no choice but to ignore the Court of Justice's decision as contrary to the EU's treaty and the spirit of European integration," said Deputy Prime Minister Jarosław Gowin in July 2018.

“We will not have them telling us in foreign languages ​​what kind of system we should be building in Poland and how Polish affairs should be done. Yes, there is the European Union, and we are very happy about that, but above all, there is Poland,” said President Duda in January 2019.

The situation came to a head when Poland’s Supreme Court ruled on January 23, 2020 that the present KRS, given the procedure for its creation, has no right to nominate candidates for the position of judges, both in general courts and in the Supreme Court. Instead, those judges who have already been nominated by the Council, occupy their seat unlawfully. In reality, this ruling rendered PiS’ entire judicial reform illegal.

In response, the Ministry of Justice found the Supreme Court's ruling invalid, and the Sejm nonetheless adopted changes to the law that allow the punishment of judges who deny the legitimacy of PiS’ judicial reform.

After Duda's signature, the new law will come into force in late February. But the prosecutor's office has already received more than a hundred reports of criminal prosecution of judges. Part of the charges read as non-performance of duties by a public servant”. This rule can be applied to those judges who call into question the legality of actions taken by legislative and executive branches, and recognize the precedence of the CJEU and Supreme Court rulings.

Лідер партії «Право і справедливість» (ПіС) Ярослав Качинський (ліворуч) та прем'єр-міністр Польщі, член ПіС Матеуш Моравецький (праворуч) під час парламентських дебатів у Сеймі щодо  судової реформи в країні, Варшава, Польща, 20 грудня 2019 року

Law and Justice (PiS) Party Leader Jaroslaw Kaczynski (left) and Polish Prime Minister, PIS member Mateusz Morawski (right) during the parliamentary debate on judicial reform in the country at the Sejm, Warsaw, Poland, December 20, 2019. Photo: EPA-EFE / WOJCIECH OLKUSNIK

Sanctions or Polexit?

The unprecedented tensions between Warsaw and Brussels have led to the Polish opposition increasingly speaking about the threat of Polexit — Poland's exit or even expulsion, from the EU.

According to Dr. Bartosz Rydliński of Cardinal Wyszyński University, the PiS government has already crossed a certain line and cannot expect understanding from Brussels:

"The recent decisions of the Sejm and the president will speed up work on depriving Poland of voting rights in the European Council, and failure to comply with the decision of the Court of Justice of the European Union will probably lead to significant financial sanctions."

But this is an optimistic scenario. The pessimistic one was voiced by Dr. Jacek Kucharczyk, Director of the Institute of Public Affairs:

"The Treaty on European Union says that a state that does not respect the rights of the European Union can be excluded. And in our case it will not be Brexit, that is, a voluntary exit when you can negotiate terms. However, such a development is not on the cards in the coming months."

A Gift for Putin

Judicial reform has created difficulties for Poland in relations not only with the EU but also with the Council of Europe. During the January session, with the active support of the Russian delegation, PACE paid much attention to "systemic problems with democracy in Poland".

Discussion of the "Polish" resolution, which took place before consideration of the "Crimean" sanctions against Russia, diverted the attention of Western Europeans from human rights violations both in Russia itself and in the occupied Crimean peninsula.

The preparations for the PACE ruling saw phrases about Polish "actions against European norms", "doubts about the independence of the justice system and the state's commitment to the rule of law" added in the text. The behavior of the Polish delegation made criticism even easier: Dominik Tarczyński of the PiS dismissed the French rapporteurs by mentioning how the French set fire to the cars during the demonstrations. When the Swedes spoke about the courts, Tarczyński startled them by "revealing" the issue of female circumcision among Swedish Muslims.

Russian delegates also took part in the discussion. The Poles have recently managed to provide dignified responses to Russian propaganda, rejecting manipulation of Warsaw's involvement in waging the Second World War. So it did not come as a surprise that the Kremlin representatives began to play the Poland card, which is in the wrong in regards to the judicial reform, and therefore — they claim — does not warrant trust in other cases.

READ MORE: Russia’s Putin Accuses Poland of Collusion with Hitler

"PiS’ actions are a gift to Mr. Putin. Russian propaganda jumps at the opportunity to use the press conferences of the European Commission or the PACE, during which Poland is criticized for violating the rule of law, and mixes them up with false tirades about Warsaw’s guilt in waging World War II. The aim is to show that Poland is an unimportant and troublesome country, so it is not necessary to treat it seriously,” Rydliński notes.

The outcome of the PACE session was 140 votes against 37 in favor of introducing special monitoring of Poland over rule of law. Such a procedure is currently in effect in Albania, Georgia, Turkey, Azerbaijan and... Russia.

Судді та адвокати з усієї Європи беруть участь у маніфестації під назвою «Марш тисячі мантій» на знак протесту проти судової реформи у Польщі, Варшава, 11 січня 2020 року

Judges and lawyers from across Europe participate in the Thousand Robes March protest in Poland, Warsaw, January 11, 2020. Photo: EPA-EFE / TOMASZ GZELL

What Ukraine Should Do

The day after the signing of the scandalous laws, President Duda officially announced his participation in the presidential race. Within a few hours, the Central Election Commission also set the election date for May 10, 2020.

Judicial reform — along with the role of the EU and national sovereignty — will be crucial during the campaign. And here, as Rydliński points out, the opposition has nothing to counter the PiS at the moment:

"I remember well that during one of the demonstrations in defense of independent judiciary, the supporters of the Platform shouted to their leaders, 'Where is your proposal for change?' And the liberals don’t have one. The Left have also not created an alternative project of change in the courts. Thus, rightly focusing on protecting the independence of the courts, the Polish opposition forgets that the flaws in the PiS’ reform do not deny the need for change. The Poles deserve fair, prompt and free sentences, and they don't have that."

Kucharczyk predicts that the results of the May vote will be decisive for Poland's future:

“This election will be the second referendum on EU membership for the Poles. And if PiS candidate Duda wins — goodbye, EU”

The tension on the Warsaw-Brussels line on the one hand, and the Russian manipulations, on the other, put Ukraine in a difficult position. The last PACE session is just the prototype of the conflict that will get a lot messier.

Hennadiy Maksak, head of the Foreign Policy Council “Ukrainian Prism”, urges Ukrainian diplomats to be reserved and focus on national interests:

“First, before criticizing, one must have a perfect judicial system. And with the courts in Ukraine there are even more problems than in neighboring Poland. Secondly, the fine line between defending democratic values ​​and non-interference in internal affairs is particularly vulnerable to neighboring countries, where many vital interests are linked. Thirdly, Poland is Ukraine's strategic partner in European and Euro-Atlantic integration. Therefore, it is not in Kyiv's interests to resort to spoiling its already imperfect image in the EU."

Maksak notes a thaw in the Ukrainian-Polish dialogue, attempts to get out of the trap of historical politics and to build trust at the highest level. He also emphasized remembering that by criticizing Poland's judicial reform, major European players, in particular, France are pursuing their own goals by promoting their own model of EU reform.

“The way Russia has played out the subject of judicial reform against Poland once again reminds us that the level of protection against information aggression by the Kremlin remains low. Kyiv may offer the Poles joint steps to counter Russian information attacks, but that won’t work out without Poland doing its own housework."